*Misc notes re: this file

Most of the 2NC Net Benefit cards you need are tucked into the Perm-Do Both block. Make sure you
thoroughly understand the argument, and are able to read those cards wherever they need to be read (if
not on the Perm) and/or explain why they apply in other places/answer other arguments.

Also make sure to, through the lens of those net benefit cards & some reading about Bivens + asking Q’s,
read the “here’s what this ruling would look like” cards for each area, and think about that a little bit,
including vs various specific hypothetical plan texts. Be sure you get it, and can explain it—and that your
partner can too before 1NC CX, for both your sakes.

Please feel free to ask any questions!!

Shouts to Trip, Hargunn, Aryan, Pranav, and, especially, Ava. Y’all did good work, much of which was
instrumental in figuring out the best angle for this file—And much of the stuff not used herein will see play
in the second leg.
 *Notes for further development
Impacts—
--Bevins scenarios
--Cut a new, recent, specific judicial independence impact
--Breaking immunity in these specific contexts is good (qualified immunity for cops or forensic examiners,
absolute immunity for judges, etc.) – *BUT, note: generally much easier to Perm

Other Counterplans/Net Benefits—

--Do plan on Constitutional grounds; ruling expands/revives/extends the doctrine, that’s good; Perm
moots the controversy
Particularly: 8th Amendment/cruel and unusual and 5th Amendment/Due Process for Sentencing;
4th Amendment/search and seizure for Policing; 5th Amendment/Due Process for Forensics

--Ban CP vs Sentencing: Prohibit Congressional reform of sentencing because sentencing solely belongs
to the Courts
--Ban CP vs Sentencing tweaks: Prohibit Congressional tweaks to sentencing because the underlying
sentencing regime (i.e. mandatory minimums, the Sentencing Guidelines, etc.) are cruel and unusual (8 th
Amendment)

--Some interesting States shenanigans of various types to be had – SCOTUS standing to sue to enforce
rights; State Courts; etc.

--Court rule opposite of plan, invite Congress to statutorily override them

***1NC***
 1NC Court CP
The Supreme Court of the United States should hold that <problem the plan
addresses> is unconstitutional, compelling the remedy of <plan>.

Competes both textually and functionally, because “enact” means the plan must
be Congress—The CP adopts reforms but “enacts” nothing
McMurdie 20 – Judge on the Arizona Court of Appeals
Paul J. McMurdie, delivering the opinion of the Court, Netherlands v. Md Helicopters, 1 CA-CV 19-0019
(Ariz. Ct. App. 2020), https://www.courtlistener.com/opinion/4737531/netherlands-v-md-helicopters/

MD Helicopters’ argument regarding the meaning of the terms “enact” and “adopt” is similarly
unpersuasive on the question of whether A.R.S. § 12-3252(B)(2) refers only to acts of a foreign
country’s legislative body , and not of its courts as well . The common usage of the term “enact”
does not generally include the actions of a court. See, e.g., 2015 Ariz. Sess. Laws, ch. 170, § 1 (1st
Reg. Sess.) (“Be it enacted by the Legislature of the State of Arizona . . . .” (emphasis added)); Cronin v.
Sheldon, 195 Ariz. 531, 537 (1999) (“[T]he legislature has the authority to enact laws.”). But the term
“adopt ” is not nearly so limited . Courts make law through the adoption of rules or common-law
principles . See, e.g., Carrow Co. v. Lusby, 167 Ariz. 18, 24 (1990) (“We adopt the modern common law
view that an owner of livestock owes a duty of ordinary care to motorists traveling on a public highway in
open range.” (emphasis added)); Judson C. Ball Revocable Tr. v. Phoenix Orchard Grp. I, L.P., 235 Ariz.
519, 523–24, ¶¶ 11, 16 (App. 2018) (Finding Delaware courts’ decision to “ adopt ” rule of standing for
shareholder suits “as a matter of common law” persuasive and deciding to “adopt” that rule as well).
Executive agencies are also frequently empowered by the legislature to “ adopt ” rules and regulations.
See, e.g., A.R.S. § 23-361 (Industrial Commission “may adopt such rules and regulations as necessary”
to administer and enforce statutes governing the payment of wages (emphasis added)). And the use of
both the terms “enact” and “adopt” must be read to contemplate different things , or one term will
be rendered superfluous . See Cont’l Bank, 131 Ariz. at 8.

<Insert relevant area-specific card so the ruling makes sense—k2 solvency + net
benefit>

Providing a judicial-fashioned remedy for Constitutional violations without

Congressional approval revives the Bivens doctrine. Key to judicial checks and
enforcement of Constitutional rights
Litman 19 – Law Prof at UMich
Leah Litman, Assistant professor of law at the University of Michigan Law School, Federal Officials
Should Be Accountable for Their Wrongdoing, 2019,
https://www.theatlantic.com/ideas/archive/2019/09/government-accountability-needs-come-
courts/598477/

Federal Officials Should Be Accountable for Their Wrongdoing

And judges need to be the ones to make them pay.
American government officials enjoy an extraordinary amount of immunity when it comes to liability for
wrongdoing. If, for example, a Bureau of Land M anagement employee trespasses onto private property
and harasses the property owner, the officer probably can’t be sued in federal court. Likewise, if a prison
official denies a prisoner adequate medical care, he too stands little chance of being held accountable in
federal court.
Federal officials’ special status results not from federal statutes but from common law; it is the nation’s
judges who have, over time, made it harder for victims of government wrongdoing to hold the
government accountable, rather than easier. Judges have fashioned sweeping doctrines of immunity
that insulate federal and state officials from facing any liability. Under these doctrines, victims of
government wrongdoing cannot recover damages from government officials unless they can point to
some prior case that has found the government conduct unlawful.
Courts have also made it harder to sue federal officials at all. In a series of cases over the past several
decades, the Supreme Court has questioned whether federal courts may allow private citizens to sue
rogue federal law-enforcement officers if Congress has not allowed them to . Most recently, the
Supreme Court held that a group of Southeast Asian men who were detained in the course of the
government’s response to September 11th could not sue the federal officials who kept them
incommunicado for an extended period of time, allegedly on the basis of their race and religion, and
subjected them to violence and abuse.
But it has not always been this way : When the Constitution was drafted and ratified, there was a rich
tradition of judicial remedies against government officers who violated the law. That was a part of “the
judicial power” that the Constitution gave to the federal courts. At the time of the founding, judges relied
on the system of judge-made common law to provide relief to those who were harmed by unlawful
government action. Chief Justice John Marshall, the author of Marbury v. Madison and the architect of
much of America’s constitutional law, once held that a U.S. Navy officer was liable for damages under
judge-made common law when the officer acted pursuant to an unlawful executive order: “The law must
take its course,” he wrote, and the officer “must pay such damages as are legally awarded against him.”
Consider just some of the cases in which federal courts awarded relief against federal officers by relying
on judge-made common law. In one case, a U.S. Navy officer wrongfully seized a ship; in another, a
federal officer had illegally entered someone’s home in order to collect an unlawful fine. The issues in
the cases varied ; so did whether the victims relied on state or federal law to sue the officers. But there
was little doubt that federal courts had the authority to rely on judge-made law to fashion
remedies for victims of government wrongdoing.
Under this common-law system of government accountability , government officials, including federal
officials, were routinely subject to damages liability in federal court when they violated federal law.
Judges’ role in this system was to fashion remedies to enforce the Constitution and other federal laws.
The Constitution ensured that the U nited S tates was a government of laws, not of men, through this
tradition of “suits for damages for abuse of power.” Damages liability kept the government within the
bounds of the law. And judges made sure that damages liability remained available.
The common-law tradition of government accountability is part of the Constitution’s system of separated
powers. “ The judicial power ” included was the authority to fashion remedies, under judge-made
law, for government misconduct . As Justice Joseph Story would say in The Apollon, many years after
Chief Justice Marshall, the federal courts “can only look to the questions, whether the laws have been
violated; and if they were, justice demands, that the injured party should receive a suitable redress.” The
judicial power included the power to remedy government wrongdoing that hurt individuals.
Other justices over the centuries have agreed . In 1971, Justice John Marshall Harlan explained why
the federal courts, in particular, were uniquely suited to remedy constitutional wrongs by executive
officers: “It would be at least anomalous to conclude that the federal judiciary is powerless to accord a
damages remedy to vindicate social policies which, by virtue in their inclusion in the Constitution, are
aimed predominantly at restraining the Government as an instrument of the popular will.”
Harlan understood that the Constitution’s system of separated powers gave the federal courts an
important role to play in righting government wrongs, including relative to other branches of the
federal government. The Constitution sought to restrain the impulses of the majority—impulses that are
often reflected in the branches that are most subject to majority will, and particularly the presidency. The
Constitution therefore gave to the federal courts , the branch of government that is less subject to
majority will, the power to restrain the excesses of the majority when those excesses hurt people.
But in the past few decades, the Court’s understanding of the judicial power has changed . Instead
of recognizing that federal courts have the power to remedy constitutional wrongs committed by
rogue executive officers, the Court has come to believe that it is up to Congress or the executive
branch to decide whether rogue executive officers will ever be accountable to people they harm. The
Court has reasoned that in the absence of a statute authorizing victims to sue the officers who
wronged them, the courts lack the power to afford the victims any relief.
These more recent decisions fail to appreciate the special role of the courts within the system of
separated powers that Harlan, Marshall, and Story recognized are part of the Constitution. The
Constitution is an instrument that restrains the popular will and majoritarian impulses. But as an
institution, Congress is supposed to represent the popular will, at least relative to the federal courts. It is
not up to Congress, and it should not be up to Congress , whether constitutional guarantees are
enforceable . That falls to the federal courts .
The expansion of officials’ immunity is significant not just because of what it says about America’s
constitutional structure , but because of its effect on underlying constitutional rights such as the
Fourth and Fifth Amendments, and, consequently, the people whose lives are shaped by these rights.
The Fourth Amendment prevents unreasonable searches and seizures, and the Fifth Amendment
prevents government officials from depriving persons of life or liberty without due process of law—or, at
least, they are supposed to prevent those things. But if there are no remedies for violations of
constitutional rights , then it’s not clear that there are constitutional rights either.
This term, the Supreme Court is set to decide another case about federal courts’ authority to right
government wrongs. Hernandez v. Mesa involves a Customs and Border Patrol officer who shot and
killed a 15-year old Mexican national, Sergio Hernandez. (I am one of the lawyers representing the
Hernandez family.) At the time of the shooting, the officer was policing the border at the culvert that
separates El Paso, Texas, from Juarez, Mexico, while the 15-year-old boy and his friends were playing a
game in which one of them would run up to and touch the United States side of the border fence. After the
officer grabbed one of the boys, Hernandez fled and tried to hide under the bridge that spans the border.
The CBP officer pointed his weapon, fired, and killed Hernandez.
The question the Supreme Court will answer is whether the Hernandez family can sue the officer who
shot and killed their son, depriving him of life without due process (in violation of the Fifth Amendment)
and using excessive deadly force (in violation of the Fourth Amendment). The answer to that question
turns on which conception of the separation of powers—and, thus, judicial power—the Court
adopts . (The fact that the child was a Mexican national is one reason the court of appeals held that the
Hernandez family could not sue, as if the federal courts’ authority to hold government officers accountable
depends on the citizenship of the officer’s victim.) Will the Court recognize that the Constitution’s system
of separated powers rests on a system of common-law accountability that allows the federal courts to
fashion relief against federal officers who violate the Constitution? Or will the Court instead shrink the
judicial power to include only the ability to follow Congress’s commands as to whether the
Constitution is enforceable?

Gets modeled—Key to rule of law globally—Underpins stability, rule-based

order/hege, and democracy
Perito 19 – Senior Peace Fellow at PILPG, former Director of the Center for Security Sector
Governance at the USIP
Robert M. Perito, Senior Peace Fellow at the Public International Law and Policy Group and former
Director of the Center for Security Sector Governance at the U.S. Institute of Peace, and Donald J.
Planty, Senior Advisor to the Albright Stonebridge Group and former U.S. Foreign Service Officer and
U.S. Ambassador to Guatemala, Saving Democracy Abroad PRISM , Vol. 8, No. 2 (2019), pp. 68-81,
https://www-jstor-org.proxy.library.georgetown.edu/stable/pdf/26803231.pdf?refreqid=excelsior
%3A8dfbc1cc1b3a560a88e43179f83decec
In crisis states , democratic activists and rule of law advocates are facing challenges . These dedicated
people still look to the United States for inspiration, leadership , and intelligent, practical, and
sustained support. We fail them at our own peril .
Promoting the rule of law abroad is in the best interest of the United States . Historically , our
democratic values have been the key to building America’s geopolitical power . The global system
of democratic alliances and institutions based upon the rule of law has improved material conditions
and brought peace and prosperity abroad . Given the current challenges from authoritarianism ,
international organized crime , and Islamist terrorism , it is ever more urgent that we utilize the power
of core American values to promote U.S. national security interests. Going forward, the United States
should treat support for the rule of law as a strategic priority that is integrated with our other national
security goals. By doing so , we will provide a compelling alternative to models offered by our
competitors and secure the benefits for ourselves and others.

The alternative is political fragmentation—Extinction

Slattery 20 – Emeritus Professor of Law and Distinguished Research Professor at York
Brian Slattery, Emeritus Professor of Law and Distinguished Research Professor at the Osgoode Hall
Law School of York University, in Toronto, Canada. He has numerous publications in the areas of
Indigenous Rights, Constitutional Law, and Legal Theory, The Tragedy and Promise of Self-
Determination, Yale Law Journal, Vol. 129, 2019-2020, 20 March 2020,
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3544238

What lessons may be drawn from these ongoing efforts in East Africa? There is much to be said on this
score—taking us far beyond the present Essay. But one lesson stands out. The negative theory of
national self-determination misconstrues the task that lies ahead of us, which is the construction of
broader frameworks for human interaction—frameworks that strengthen mutual respect and sense of
obligation, building greater community and solidarity. Such frameworks are the essential basis for the
advancement of human well-being and human rights. In their absence , poverty , social conflict , and
outright war will continue to be the scourge of humanity , undermining basic rights and destroying the
conditions essential for individual and group flourishing.
Not only does the negative theory of national self-determination misunderstand what needs to be done, it
has the effect of hindering efforts to achieve that goal. In tacitly encouraging and enabling political
fragmentation , it undermines the basic normative structures needed to serve the broader cause of
human welfare and rights—paradoxically the very goods it aims to promote. These goods are better
secured through the creation of multinational frameworks that stimulate different ethnic and cultural
groups to interact and work for common goals—in effect, through positive self-determination.
The world is not a static place, divided forever into “us” and “them.” As Julius Nyerere emphasized,
there is a pressing need for humans to broaden their sympathies and moral horizons. Yet a culture of
toleration does not spring into existence unaided . It requires a midwife—in the guise of legal
norms . The future of humanity depends on constitutional structures that show the other is also us.
 —Policing
That solves—Courts can reform the police by allowing damages—Key issue for
immunity vs. judicial remedy
Sobel 20 – Lawfare, JD-Harvard Law
Nathaniel Sobel, JD from Harvard Law School, has worked on criminal justice, election law, and foreign
policy issues for Lawfare, What Is Qualified Immunity, and What Does It Have to Do With Police Reform?,
6 June 2020, https://www.lawfareblog.com/what-qualified-immunity-and-what-does-it-have-do-police-
reform

The protests ignited by the killing of George Floyd have put a spotlight on the legal doctrine of qualified
immunity. While qualified immunity is not at issue in the prosecution of former Minneapolis police officer
Derek Chauvin and the three other former officers who face criminal charges stemming from Floyd’s
death, it is one of many structural factors that make it difficult to hold police officers accountable for
wrongdoing. While Lawfare contributors have occasionally discussed qualified immunity in the past, this
post provides answers to some key questions that have arisen in light of the current national
conversation. (Note that, while some states have developed parallel immunities for state law violations,
this post addresses qualified immunity only in the context of claims brought under federal law.)
What Is Qualified Immunity?
Qualified immunity is a judicially created doctrine that shields government officials from being held
personally liable for constitutional violations—like the right to be free from excessive police force—for
money damages under federal law so long as the officials did not violate “clearly established” law. Both
42 U.S.C. § 1983—a statute originally passed to assist the government in combating Ku Klux Klan
violence in the South after the Civil War—and the Supreme Court’s decision in Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics (1971) allow individuals to sue government officials for
money damages when they violate their constitutional rights. Section 1983 applies to state officials, while
Bivens applies to federal officials. Because damages are often the only available remedy after a
constitutional violation has occurred, suits for damages can be a crucial means of vindicating
constitutional rights. When government officials are sued, qualified immunity functions as an affirmative
defense they can raise, barring damages even if they committed unlawful acts. (Qualified immunity is not,
however, a defense to claims for injunctive relief.)
The Supreme Court has generally traced qualified immunity back to the immunities available to
government actors when officials were sued for common law torts during the 19th century. The basic idea
is that when Congress enacted § 1983 in 1871, it incorporated the then-existing immunities into the
statute, which the Supreme Court has also extended to Bivens suits. However, recent scholarship has
called into question the Supreme Court’s account of the government immunities available in 1871,
whether Congress intended them to be defenses to § 1983 claims, and the coherence of the relationship
between the history and the modern doctrine.
How Does Qualified Immunity Work?
The landmark case of Harlow v. Fitzgerald (1982) articulated the modern formulation of qualified immunity
that controls today. Jettisoning past precedent that examined the “subjective good faith” of the officer who
committed the alleged violation, the Harlow court adopted a new test framed in “objective terms.” In
Harlow, the court established that a plaintiff could overcome qualified immunity only by showing that the
defendant’s conduct “violate[d] clearly established statutory or constitutional rights of which a reasonable
person would have known.” While the court made clear that the new standard was intended to be more
protective of government officials than its previous test, the court also stated that the standard “provide[d]
no license to lawless conduct.” “If the law was clearly established, the immunity defense ordinarily should
fail, since a reasonably competent public official should know the law governing his conduct,” the court
wrote. But since Harlow, the court has applied the doctrine in three distinct ways that have made it more
favorable to government defendants.
First, in order to show that the law was “clearly established,” the court has generally required plaintiffs to
point to an already existing judicial decision, with substantially similar facts. As a result, as Julian Sanchez
wrote succinctly on Twitter, “the first person to litigate a specific harm is out of luck” since the “first time
around, the right violated won’t be ‘clearly established.’” A recent decision by the U.S. Court of Appeals
for the Ninth Circuit illustrates this point. In that case, a SWAT team fired tear gas grenades into a
plaintiff’s home, causing extensive damage. And while the divided three-judge panel assumed that the
SWAT officers had in fact violated the plaintiff’s Fourth Amendment rights, it nonetheless granted qualified
immunity to the officers because it determined that the precedents the plaintiff relied on did not clearly
establish a violation “at the appropriate level of specificity.” (The Supreme Court could decide to review
the Ninth Circuit’s decision in this case as soon as Monday, June 8.)
Second, in Pearson v. Callahan (2009), the Supreme Court altered the way in which courts apply the
doctrine in a manner that created a significant obstacle for civil rights plaintiffs. In an earlier decision,
Saucier v. Katz (2001), the high court had held that when assessing a qualified immunity defense, courts
must first determine whether there was a violation of a constitutional right and then move on to analyze
whether the law was clearly established. But in Pearson, the justices reversed course, allowing courts to
grant qualified immunity based only on the clearly established prong—and without ever determining if
there was a constitutional violation. As Judge Don Willett of the U.S. Court of Appeals for the Fifth Circuit
explained in a recent opinion, this creates a “Catch-22” for civil rights plaintiffs. Because courts often take
what Willett called the “simpler” route of resolving a case based on the “clearly established” inquiry—
rather than engaging in the “knotty constitutional inquiry” of whether the officials violated the Constitution
—Pearson has resulted in fewer precedents finding constitutional violations. In turn, as Willett put it, “ No
precedent = no clearly established law = no liability.” And according to a recent study conducted by
Reuters: “Plaintiffs in excessive force cases against police have had a harder time getting past qualified
immunity since [Pearson].”
Third, as Harvard Law professor and ACLU lawyer Scott Michelman notes in a recent article, the
Supreme Court’s construct of a “reasonable officer” has shifted since Harlow to grant government officials
greater deference. In a 1986 decision, the high court famously wrote that qualified immunity protects “all
but the plainly incompetent or those who knowingly violate the law.” Since then, the Supreme Court has
stated that a defendant’s conduct is to be judged on the basis of “any reasonable officer” or “every
reasonable official”—“thus implying,” as Michelman assesses, “that in order for a plaintiff to overcome
qualified immunity, the right violated must be so clear that its violation in the plaintiff’s case would have
been obvious not just to the average ‘reasonable officer’ but to the least informed, least reasonable
‘reasonable officer.’”
What Is the Justification for Qualified Immunity?
In general terms, the Supreme Court has offered two basic justifications for the doctrine. The Harlow
Court expressly noted that its decision sought to achieve a “balance” between allowing victims to hold
officials accountable and minimizing “social costs” to “society as a whole.” Noting that “claims frequently
run against the innocent, as well as the guilty,” the Harlow court identified four “social costs.” First, the
doctrine aims to avoid “the expenses of litigation” by allowing district courts to dismiss suits against
officers at early stages in the litigation—and without making fact-intensive inquiries into a particular
officer’s motivations. Second, and relatedly, requiring officials to respond to such litigation can “diver[t] …
official energy from pressing public issues.” Third, the court worried that the threat of litigation would
“deter[] … able citizens from acceptance of public office.” And lastly—and most importantly—the court
was concerned that the threat of lawsuits could chill lawful law enforcement conduct. The court wrote that
“there is the danger that fear of being sued will ‘dampen the ardor of all but the most resolute, or the most
irresponsible [public officials], in the unflinching discharge of their duties.’” Along similar lines, in a more
recent opinion, the Supreme Court explained: “[T]he doctrine of qualified immunity gives government
officials breathing room to make reasonable but mistaken judgments about open legal questions.”
Also at the core of the Supreme Court’s jurisprudence is the contention that it would be unfair to hold
government officials to constitutional rules they were not aware of at the time of the violation. The court
first articulated this idea in a pre-Harlow decision, stating that “[a] policeman’s lot is not so unhappy that
he must choose between being charged with dereliction of duty if he does not arrest when he has
probable cause, and being mulcted in damages if he does.” Then in Harlow, the court wrote: “If the law at
that time was not clearly established, an official could not reasonably be expected to anticipate
subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not
previously identified as unlawful.” And a recent case described “the focus” of qualified immunity as
“whether the officer had fair notice that her conduct was unlawful.”
What Are the Arguments Against Qualified Immunity?
As law professors Aaron Nielson and Christopher Walker discuss in a recent article, criticism of qualified
immunity can generally be separated into “two fronts of attack”: first, that it’s bad law and, second, that it’s
bad policy.
On the law, the most notable criticism has come from Justice Clarence Thomas. In a short solo opinion in
a 2017 case, he urged the Supreme Court, “[i]n an appropriate case,” to “reconsider [its] qualified
immunity jurisprudence.” As an originalist, Thomas believes that, in qualified immunity cases, the
Supreme Court should ask “whether the common law in 1871 would have accorded immunity to an officer
for a tort analogous to the plaintiff's claim under § 1983.” But in Thomas’s view, the modern doctrine has
strayed too far from the 19th century immunities. Rather than interpreting the statute, Thomas argued that
the court’s qualified immunity jurisprudence “represent[s] precisely the sort of ‘free-wheeling policy
choice[s]’” that are not within the providence of courts’ authority. In a recent article—which Thomas cited
in his opinion—University of Chicago law professor William Baude explores and rejects the Supreme
Court’s justification “that qualified immunity derives from a putative common-law rule that existed when
Section 1983 was adopted.”
Another major legal criticism is that qualified immunity stunts the development of constitutional law.
Especially after the Supreme Court’s Pearson decision (discussed above), as Judge Willett lamented, the
consequence is that “[i]mportant constitutional questions go unanswered.” This is of special concern in
cases involving new technologies or practices.
On the policy side, qualified immunity opponents contend that the Harlow Court got the balance wrong.
Justice Sonia Sotomayor—who has called qualified immunity a “one-sided approach” that “transforms the
doctrine into an absolute shield for law enforcement officers”—captures the core of that critique in a
recent opinion, which Justice Ruth Bader Ginsburg joined. As Sotomayor put it, qualified immunity “sends
an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and
think later, and it tells the public that palpably unreasonable conduct will go unpunished.”
Such reasoning has generally attracted a diverse ideological coalition. Advocates of reforming qualified
immunity on the political right tend to emphasize values of law enforcement “accountability” and defense
of private property, while the arguments from the left focus on racial justice and broader police reform
efforts—but there is nonetheless considerable overlap. Recently, a self-described “cross-ideological”
group of organizations filed multiple petitions urging the Supreme Court to take up the issue of qualified
immunity.
UCLA law professor Joanna Schwartz argues that qualified immunity does not even fulfill the policy goals
it aims to achieve. In one article, Schwartz found that in a robust sample of cases, “governments paid
approximately 99.98 percent of the dollars that plaintiffs recovered in lawsuits alleging civil rights
violations by law enforcement,” undermining the Supreme Court’s fears that defendant officers would
have to bear the liability themselves. And in another article, she found that qualified immunity so rarely
screens out claims before discovery and trial that it does not serve its intended goal of shielding
government from the costs of litigation.
One more additional line of argument is offered by the MacArthur Justice Center’s Amir Ali and Emily
Clark in a recent op-ed. They make the case that qualified immunity prevents “many [civil rights] claims
[from being brought] in the first place.” Under a 1976 statute, Congress passed a law allowing lawyers
who represent victims in civil rights actions to recover for their time. But since those fees are not available
when a case is dismissed based on qualified immunity, they argue that “victims of civil rights violations
may be less likely to find a lawyer who is willing to represent them and suits will not be brought.”
How and When Could Qualified Immunity Change?
The Supreme Court created qualified immunity and could of course overrule it, subject to its principles of
stare decisis. At the court’s private conference on June 4, it considered eight petitions for the court to take
up the issue of qualified immunity next term, meaning that the soonest a decision on the merits could
come down would be next year. Two additional qualified immunity petitions were listed as “rescheduled,”
implying they would be considered at a future conference. The petitions considered at the June 4
conference include two police shootings, a case where officers deployed a dog on a suspect who had
already surrendered, and a case where police used a Taser on a man who died while in custody, among
others. The Supreme Court could announce its decisions from the June 4 conference as early as the
morning of Monday, June 8. There is no guarantee it will hear any of them, however—on May 18, the
court declined to hear three qualified immunity cases.
 —Sentencing
That solves—The Court can directly mandate sentencing changes, and do so as a
judicially-created remedy for infringement of Constitutional rights
Starr 9 – Assistant Professor, University of Michigan School of Law
Sonja B. Starr, Sentence Reduction as a Remedy for Prosecutorial Misconduct, Geo. L. J. 97, no. 6
(2009): 1509-66, https://repository.law.umich.edu/articles/1189

Alternatively , courts could bypass the legislature and order sentence reductions themselves ,
where they have authority to do so. Such authority could be grounded in supervisory powers or in the
federal or state constitution .
The U.S. Supreme Court has the supervisory authority “to prescribe rules of evidence and procedure
that are binding” in federal courts,276 and state high courts enjoy similar prescriptive authority with
respect to state courts.277 But this authority is trumped by conflicting legislation or constitutional
requirements—it is a gap-filling authority.278 Notably, this means that the U.S. Supreme Court cannot
rely on it to order sentence reductions for “harmless” errors. Federal Rule of Criminal Procedure 52(a)
requires courts to “disregard” errors that do not “affect substantial rights.” The Supreme Court has held
that this rule codifies the harmless error doctrine and that the Court has no supervisory authority to
displace it.279 For the Court to grant sentence reduction in a federal harmless error case, absent prior
congressional authorization , it would have to hold that the remedy is constitutionally required.
Supervisory authority might, however, allow state courts to order sentence reduction for “harmless but
serious” errors, depending on the wording of the state’s harmless error provisions. All 50 states have such
provisions in their statutes or constitutions.280 But they do not all include language, like that of Rule
52(a), requiring courts to “disregard” harmless errors entirely. Instead, some simply prevent courts from
reversing convictions.281 Such provisions seem to allow room for alternative remedies like sentence
reduction. If so, states almost certainly could apply such remedies to federal constitutional errors
occurring in state court as well as to errors of state law.282
Second, courts also have the power to grant any remedies that are constitutionally required , and this
power naturally trumps conflicting legislation . Constitutionally required remedial rules ordered by
the Supreme Court extend both to federal and state courts , and state courts may craft state
constitutional remedial rules. To the extent existing remedial rules are premised on this constitutional
authority, they can be changed by the relevant high courts.
For instance, the U.S. Supreme Court could in its next Batson case hold that sentence reduction is
a constitutionally adequate remedy . Indeed, even a lower court would probably be free to so hold,
because the Supreme Court has never squarely held that automatic reversal is constitutionally required.
Likewise, sentence reduction could be ordered by state courts to remedy misconduct violating the state
constitution.
One practical concern with judicial adoption of sentence reduction is whether it can be reconciled with
existing sentencing legislation. This question has been the main source of controversy surrounding the
permissibility of the remedy in Canada.283 If guidelines or mandatory minimums do not allow sufficient
discretion to permit remedial sentence reduction, they may preclude courts from relying on their
supervisory authority to grant such reductions, because that authority depends on an absence of
conflicting law. Sentence reductions would then have to be premised on courts’ constitutional
authority , or else authorized by the legislature. But advisory guidelines , like the current federal
system , almost surely do not present a problem. While the weight accorded such guidelines remains
unsettled, the Supreme Court has made clear that courts have broad authority to depart from them.284
C. Implementation Concerns: Responses to Objections Regardless of which branch initially adopts a sentencing reduction scheme, its implementation raises some practical questions. In Part IV, I addressed concerns related to commensurability and disparity in the magnitude of reductions; here, I respond to a few additional objections. The first is the possibility that courts would just raise the base sentence to cancel out the required reduction.285 This is unlikely to happen often. First, in many jurisdictions, determinate
sentencing schemes will make it difficult to manipulate the base sentence.286 Second, it is hard to see how an appeals court could engage in such manipulation, because the trial court’s sentence would presumably serve as the starting point for the reduction. Third, most courts are unlikely to want to do so. Studies show that most judges think sentences are too high,287 and moreover, many courts will presumably want to remedy serious prosecutorial misconduct if they can do so without the massive windfall of complete
release.288 Third, any court that would manipulate the base sentence to avoid sentence reduction would surely engage in other kinds of manipulation (like narrowing the right) to avoid current windfall remedies. And finally, even if a court did engage in such manipulation, if it was well disguised, the sentence reduction might still achieve its deterrent and expressive purposes. A variation on this concern is that prosecutors themselves will attempt to offset the impact of sentence reduction by exercising their discretion in ways that
increase base sentences. This concern is more plausible, because prosecu- 283 Compare Carpenter, 2002 CarswellBC 1057 para. 26, with MacPherson, 100 C.C.C. (3d) 216; see generally Bick, supra (discussing the controversy). 284 See Gall v. United States, 128 S.Ct. 538, 602 (2007) (holding that “the Guidelines are only one of the factors to consider when imposing sentence”). 285 See Amsterdam, supra (raising this objection in the speedy trial context); see also Caldwell & Chase, supra, at 71-72 (describing this as a
“legitimate concern”). 286 Caldwell & Chase, supra, at 72. 287 See supra note 67; Calabresi, supra, at 116 (arguing that severe sentencing laws mean that judges won’t put a “thumb on the scale” to increase sentences). 288 Courts have expressed frustration at their own lack of effective remedies for prosecutorial misconduct. See Modica, 663 F.2d at 1182-84; Pallais, 921 F.2d at 691-92. DRAFT—PLEASE DO NOT CITE WITHOUT PERMISSION 54 tors have a significant incentive to keep the sentence high. Still, it is not so
easy to see how this would work. Most of prosecutors’ considerable power over sentences lies in their control over charging decisions and pleabargaining.289 But prosecutors tend already to exercise that control to maximize sentences, especially for defendants who choose to go to trial.290 Moreover, the kinds of misconduct I have discussed here generally take place well after the charging and plea stages, at or close to trial. So a prosecutor will usually not be able to respond, after committing misconduct and getting caught,
by ramping up the charges. She could make a higher-than-usual sentence recommendation, but that would be fairly transparent and therefore likely less convincing to the court. She could start to charge more harshly in every case just in case she commits misconduct and gets caught. But any prosecutor so Machiavellian as to plan in all cases for the likelihood of her own misconduct is probably already charging the maximum.291 Finally, even if she did find a way to compensate for the sentence reduction in a particular case,
she wouldn’t be able to avoid the reputational cost of being publicly chastised by the appeals court, which may well be the most significant part of the sanction. A third variation is that legislatures or sentencing commissions will respond by ramping up the base sentences. Analogously, Bill Stuntz has argued that legislatures have historically responded to the expansion of constitutional criminal procedure by expanding the scope and penal severity of the substantive criminal law.292 These concerns might provide a reason to
prefer reforms conducted through the legislature itself, if possible.293 But in any event, it is not clear that sentence reductions would be likelier than current stronger remedies to trigger this kind of political response. Stuntz does not suggest that harsh sentencing legislation is triggered by innovations in sentencing procedure specifically—rather, it responds to perceived “soft on crime” judging more generally. If sentence reductions were less politically controversial than reversals or dismissals, then they might be less likely to
provoke a legislative backlash. And there is some evidence that intermediate alternatives might be attractive to legislatures that dislike current all-or-nothing schemes.294 289 E.g., Standen, supra, at 1509. 290 See supra Part III. 291 Relatedly, Bill Stuntz argues that expanded procedural protections induce prosecutors to change whom they charge, dropping cases that have likely procedural claims in favor of those that don’t. Stuntz, supra, at 4, 28. That argument largely pertains to police procedure, however—charging
practices are much less likely to be affected by improved remedies for prosecutorial misconduct, given the timing of that misconduct. 292 Stuntz, supra, at 7; William J. Stuntz, The Political Constitution of Criminal Justice, 119 Harv. L. Rev. 780, 784 (2006); accord William T. Pizzi, Punishment and Procedure, 13 CONST. COMMENT. 55, 66-67 (1996). 293 See Stuntz, Political Constitution, supra note, at 796, 802-03 (noting that legislatures sometimes expand procedural protections themselves even though they resent judicially
created protections). 294 See HERMAN, supra, at 205-06 (noting that “what remedy to provide [in the Speedy Trial Act] occasioned active debate in Congress because the choices—a severe remedy allow- SENTENCE REDUCTION AS A REMEDY FOR PROSECUTORIAL MISCONDUCT 55 Another possible objection is that judicial resources could be strained if defendants start raising claims that would otherwise surely be declared harmless. But Canada’s experience, so far, provides little basis for this concern, as in “the
vast majority of cases, the offender only asked for a sentence reduction once a preferred remedy, such as exclusion of evidence or a stay of proceedings, had been denied.”295 Thus, reduction requests are adjudicated at the sentencing stage on the basis of submissions already made earlier in the proceedings.296 Moreover, limiting the remedy to cases involving serious prosecutorial misconduct ought to discourage defense counsel from raising frivolous claims. Any lawyer who is willing to decline to raise harmless procedural
errors will also probably decline to raise trivial ones. And if serious misconduct has occurred, then it would be a good thing if defense counsel had an incentive to bring it to courts’ attention.

CONCLUSION
Current remedies for prosecutorial misconduct are strikingly ineffective, largely because courts view them
as too costly to grant. Scholars too often have been unrealistic about this remedial deterrence problem,
proposing stronger remedies for misconduct when the more realistic solution might be nominally “weaker”
ones. Adding sentence reduction to current all-or-nothing remedial schemes could help to deter and
condemn prosecutorial misconduct, while avoiding the social costs of retrial and providing a fair measure
of relief to defendants whose rights have been violated.
This Article has sought to make the case for sentence reduction in terms of three distinct remedial
purposes—deterrence, corrective justice, and expressive condemnation—that might strike some readers
as being in tension. I have been deliberately agnostic as to the “proper” purpose of criminal procedure
remedies, for several reasons. First, there may not always be one right answer—such remedies (like, for
instance, civil damages297 or criminal punishment298) can and do simultaneously serve multiple
purposes, or different purposes in different contexts.299 Second, because I believe sentence reduction
can effectively serve all three goals, there is no real need to choose—the case for sentence reduction, I
hope, is overdetermined.300
That said, of course there would be cases, if my proposal were adopted, in which the various goals would
support sentence reductions of quite different magnitudes. Most notably, in cases involving serious
prosecutorial misconduct that nonetheless caused the defendant little identifiable harm, it might be
necessary to sacrifice the objective of corrective justice (by granting a remedy that “overcorrects”) in order
to achieve effective deterrence or condemnation.
Although I have offered a few thoughts on how to resolve such tensions, I have not proposed any firm
rules for balancing competing interests or any formula for calculating the appropriate length of a
reduction. If my proposal were adopted, those details would be important subjects of further judicial,
legislative, and scholarly debate.
Significantly, adding the option of sentence reduction need not mean giving up on the advantages that
current “stronger” remedies may sometimes offer. Under my proposal, reversal would remain required
when misconduct has compromised the reliability of the conviction, and dismissal with prejudice would be
required when delays or other violations have rendered a fair trial impossible. Moreover, even in cases
not involving that kind of prejudice, these strong remedies could remain available as an option for the
exceptional cases in which courts are willing to invoke them. My proposal would eliminate the automatic
remedies of reversal and dismissal for Batson and speedy trial cases, but permit those remedies on a
discretionary basis. For this reason, if reversal or dismissal is necessary for deterrent, expressive, or
corrective purposes in some cases, sentence reduction need not displace it. Rather, sentence reduction
would target misconduct that exists in the very large zone between proper conduct and the extreme
misconduct that currently triggers remedies.
In focusing on cases in which violations have not rendered a conviction unreliable, my proposal poses a challenge to current harmless error doctrine. When deciding what appellate remedy is due for violations of criminal defendants’ procedural rights, courts today start by categorizing the violation in one of two boxes: those requiring some automatic remedy (e.g., Batson and speedy trial violations), or those requiring harmless error review (e.g., Brady violations and most forms of trial misconduct). When considering cases in the
first category, courts face a windfall problem—because the remedy does not depend on the harm experienced by the defendant, it will often be greatly disproportionate to that harm, and the only way to avoid that imbalance is to avoid recognizing a violation at all. When considering cases in the second category, courts face a different problem: they may respond only to one kind of harm (possible wrongful conviction). If that particular harm is absent, no remedy can be given, even if the violation caused other personal or social
injuries or involved misconduct of a type that is often harmful and worth deterring.
My proposed approach is fundamentally different. In the context of prosecutorial misconduct, it treats the cases in both categories the same way, without either presuming harm or narrowly cabining the kinds of harm courts can consider. Instead, for all types of serious misconduct, appeals courts would ask more broadly what harm has resulted, and tailor their remedies accordingly. If the harm includes a reasonable possibility of wrongful conviction, then reversal (or dismissal) is the proper remedy. If not, the inquiry does not
end, because the lesser remedy of sentence reduction may still be justified on corrective, expressive, or deterrent grounds.
As the literature on remedial deterrence suggests, all-or-nothing remedies also pose serious dilemmas for courts in contexts other than prosecutorial misconduct. It may be worth rethinking the current remedial schemes in some of those contexts, and sentence reduction might be an alternative worth considering. I do not mean to suggest, however, that automatic or all-or-nothing remedies have no place in criminal procedure. For many kinds of rights violations, such remedies might be the best option, especially if alternatives
like sentence reduction are not likely to be taken seriously by the wrongdoer. In any event, I leave that project for another day.

For now, I have focused on prosecutorial misconduct for two reasons. First, the sentence reduction
remedy is one that prosecutors, especially, are likely to take seriously. That gives it the prospect of being
an effective deterrent, and also means that it is a meaningful condemnatory remedy—it can be
understood by prosecutors themselves and by their communities as a punishment for misconduct.
Second, there is now a quite longstanding scholarly consensus that the current remedies for prosecutorial
misconduct have failed. If so, it is past time to think creatively about solutions.
 —Forensics
That solves—Can remedy the plan through the lens of wrongful conviction—Key
issue for immunity
Ravenell 11 – Assistant Professor, Villanova University School of Law
Teressa E. Ravenell, Assistant Professor, Villanova University School of Law, Cause and Conviction: The
Role of Causation in Section 1983 Wrongful Conviction Claims,
https://www.templelawreview.org/lawreview/assets/uploads/2011/07/Ravenell.pdf

Although wrongful convictions may be an inevitable consequence of our criminal justice system, it
would seem that a person wrongly deprived of his liberty is entitled a civil remedy to compensate for the
mistakes of the criminal system.22 Yet, persons wrongly convicted of a crime who bring § 1983 actions
for an erroneous arrest, detention, or conviction are often denied monetary compensation.23
[FN 23]
23 See INNOCENCE PROJECT, supra note 21, at 34-35 (finding less than half of exonerees were able to
recover compensation). Only 45% of the 200 exonerees who had been cleared through the use of DNA
evidence were able to collect either through state compensation statutes or civil lawsuits. See id. at 34.
[End FN]
There are a number of bases for courts to deny exonerees a § 1983 monetary remedy for their erroneous
conviction. First, although such convictions may be factually wrong, they may not be legally wrong. To
establish liability under § 1983, a plaintiff must prove that the defendant caused him to be deprived of a
constitutional right. Furthermore, even in cases where the plaintiff is able to prove a constitutional
violation the persons responsible for the deprivation are often immune from suit.24
[FN 24]
24 See O’Neal v. Mississippi Bd. of Nursing, 113 F.3d 63, 65 (Miss. 1997) (citing Supreme Court’s narrow
understanding of absolute immunity). Judges , performing judicial acts within their jurisdiction and
prosecutors performing their duties are granted absolute immunity from monetary damages. See id.
Witnesses are similarly granted absolute immunity. See Briscoe v. Lahue, 460 U.S. 325, 325 (1983)
(“No evidence that Congress intended to abrogate the traditional common witness immunity in § 1983
actions.”). Other state actors, such as the police officers who investigated and arrested the plaintiff and
forensic who may have analyzed evidence in the case are often shielded by qualified immunity . See
Harlow v. Fitzgerald, 457 U.S. 800, 818) (“government officials performing discretionary functions
generally are shielded from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”).
[End FN]
Legal scholarship discussing § 1983 actions for wrongful convictions typically focus on the following: (1)
whether wrongful convictions and/or prosecution violates the Constitution and (2) the role of
absolute and qualified immunity in these cases.25
Furthermore legal scholars who do discuss civil remedies for wrongful convictions only focus one or two
actors in the criminal justice process who might be civilly liable.26 Yet, as Harris’s case suggests,
“wrongful convictions do not result from a single flaw or mistake; many factors can be at the root of a
wrongful conviction.”27 Such factors may include biased police lineups, mistaken eyewitness
identification, faulty forensic science , coerced false confessions, and unreliable informants.28
Accordingly, one person is seldom the “cause” of a wrongful conviction. This severely complicates
questions of causation in § 1983 litigation, which requires a plaintiff to prove that each individual
defendant deprived him of a specific constitutional right and the deprivation of this constitutional right, in
turn, caused his injuries.
***Perms/Net Benefit***
 AT: Perm Do CP
1.CP is both textually and functionally distinct from the plan—“Enact” refers
exclusively to acts of a legislative body, NOT of the Courts or Executive agencies.
Legally precise distinction, grounded in extensive case law—That’s McMurdie.
Prefer it—
A – Key to limits—Must draw lines wherever you can in a predictable and non-
arbitrary way, because the topic is massive and aff-biased—[ ]
B – Courts & executive CPs are essential Neg ground—[ ]

And, Err Neg—It’s a key debate on the topic—Should grapple with whether the
Congress should force judicial change or the Courts should just do it
Todd 19 – State of Alabama Circuit Court Judge
Judge Tracie A. Todd serves as a State of Alabama Circuit Court Judge for the Tenth Judicial Circuit
Criminal Division where she has presided over felony and misdemeanor offenses since 2012, JD from
Alabama and LLM in Judicial Studies from Duke, MASS INCARCERATION: THE OBSTRUCTION OF
JUDGES, LAW AND CONTEMPORARY PROBLEMS, Vol. 82, No. 2:191 2019,
https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4913&context=lcp

As a general premise, it can be concluded from this study that legislative mandates and institutional
features may affect judicial discretion in sentencing. The conclusion relates directly to the widely divergent
incarceration rates in Alabama and Massachusetts. The study revealed variations in attitudes, practices
and policies that judges as actors in the criminal justice system believe to be obstructive to efforts aimed
at reducing incarcerations rates. Judges perceive themselves as intermediaries between the criminal
justice system and the communities to which most offenders will be returned. Therefore, any genuine
effort to effectively reform the criminal justice system and reduce prison populations must include
substantive involvement of state judges. Overcrowded prisons have necessitated reform of the criminal
justice system. While this study centered on surface level political mandates and institutional features, the
study of state judges as participants in the criminal justice system is vastly unchartered territory. Further
study of these key actors in the criminal justice system is ripe for original contribution to the
literature , and perhaps a missing consideration in the criminal justice and mass incarceration
debate.

2.“Enact” must be Congress—Clear intent to define and exclude

Berman 94 – Judge on the Superior Court of New Jersey, citing to prior precedent and dictionaries
Opinion by Glenn J. Berman, Superior Court of New Jersey, Law Division, Civil, Middlesex County, South
Brunswick Associates v. Township Council of Tp. of Monroe, 285 N.J. Super. 377, Decided 17 May 1994,
Lexis

Miller's conduct would be permissible under N.J.S.A. 40A:9-22.5i if the representation were regarding the
" enactment of any ordinance, resolution or other matter required to be voted upon or which is subject to
executive approval or veto." Id. (emphasis added). However, this language suggests legislative, not
quasi- judicial action . 2 If the Legislature intended to allow public officials [*381] to represent others in
quasi-judicial proceedings, it could have stated that public officials may participate in any proceeding
which would not result in material or monetary gain to them. Cf. N.J.S.A. 40A:9-22.5i
[FN 2]
"Enactment" is defined as the act or action of enacting: passing of a bill by the legislature ;
something that has been enacted as a law, bill, or statute . Webster's Third New International Dictionary
745 (3d ed. 1986). "Enact " is defined as to enter into public records; to establish by legal and
authoritative act, make into law , especially to perform the last act of legislation that gives the validity
of law. Ibid.
[End FN]

Obviously there are multiple definitions, but this is the best-supported—It’s a

legal term of art. Even if agencies or court decisions are equivalently legally-
binding, they are not “enacted”. (instead, they’re “adopted”—that’s 1NC McMurdie)
Carlson 4 – Justice of the US Supreme Court of MS, citing to prior federal court precedent and Black’s
Law Dictionary
Opinion by George C. Carlson Jr., Supreme Court of Mississippi, Gulf Ins. Co. v. Neel-Schaffer, Inc., 904
So. 2d 1036, Decided 9 December 2004, Lexis

In so holding, we note that Neel-Schaffer's argument is not altogether unreasonable. Neel-Schaffer

argues that in instances where a legislative branch has delegated its authority to regulate to an
administrative agency and where that agency is considered the final regulatory authority, the agency's
regulations should be considered the legal equivalent to statutes. Nevertheless , Neel-Schaffer
presents no compelling argument as to why this Court should not adopt the view held by the local
federal courts . Further reason ing to reject Neel-Schaffer's argument is the fact that the Act
incorporates the term "enact." The use of this term seemingly denotes a legislative enterprise.12
[FN 12]
"Enact" is defined as follows: "To establish by law ; to perform or effect; to decree. The common
introductory formula in making statutory laws is, 'Be it enacted .' See Enacting clause." Black's Law
Dictionary (5th ed. 472).
[End FN]

3.Precision, and distinct literature bases—The Courts review legislative

enactments, and can interpret, apply, or strike them down. But they cannot
themselves enact.
Meyers 19 – Professor Emerita of Philosophy at the University of Connecticut
Edited by Diana T Meyers, Kenneth Kipnis, Steve Griffin, Chapters from Philosophical Dimensions Of The
Constitution, Routledge/Taylor Francis & Group, 2019

Judicial review of legislative enactments has the power to tell us,

, so the popular analysis it, is fundamentally antidemocratic. Nine justices, appointed for life, have

inter alia, where our children will go to school, that organized prayer in public schools is impermissible,
that the several states cannot outlaw abortion . Moreover, this extraordinary power1 can be, and all too often is, exercised in the face of clear expressions of the will of the elected representatives of

The institution of judicial review

the people. very invalidate legislative enactments (or, more exactly, the products of that institution that 2) seems to be inconsistent with
democracy. "This," John Hart Ely concludes at the end of a civics sermonette, "in America, is a charge that matters. We have as a society from the beginning, and now almost instinctively, accepted the notion that a representative democracy must be our form of
government."3 Judicial review, the legacy of John Marshall and Marbury v. Madison, is now a deeply ingrained part of U.S. political practice. Given that the courts will engage in judicial review, the standard of review remains a matter of some debate. Current
debates about the legitimacy of judicial policymaking divide theorists into two dominant camps: the interpretivists represented by Raoul Berger, William Rehnquist, and Robert Bork, and the noninterpretivists represented by Thomas Grey, Owen Fiss, William
Brennan, and Michael Perry. Most of the current debates about constitutional interpretation are misleading because they suggest that there are exactly two positions, exclusive and exhaustive, that one may adopt: the clausebound literalism of Raoul Berger and
William Rehnquist (hereafter called positivist interpretivism) and the value imposing noninterpretivism of Michael Perry and Thomas Grey (hereafter called nonpositivist, noninterpretivism}.4 My goal in this chapter is to defend a theory of judicial 96 Between Clause-
bound Literalism and Value Imposition 97 review that stands as an alternative to the dominant theories in current legal/philosophical debates. The theory I argue for is faithful to the central tenets of legal positivism, yet it sanctions the imposition of extraconstitutional
values. This chapter is divided into three sections. In the first two sections I show why both positivist interpretivism and nonpositivist noninterpretivism are inadequate theories of constitutional interpretation. While I address the shortcomings of these theories, I also
attempt to demonstrate that each has important contributions to make toward an adequate theory of judicial review. In the third section I outline the position of the positivist noninterpretivist. Primary emphasis is placed on explicating the position (showing why it is
both positivist and noninterpretivist) and on distinguishing it from positivist interpretivism. I also consider the major objection against any theory of noninterpretive review: How are the values that the Court may impose to be determined? The answer I provide to this
question has a legacy traceable through Alexander Bickel back to Edmund Burke: consensus of the citizenry. THE FAILURE OF POSITIVIST INTERPRETIVISM Positivist interpretivists argue that when engaging in judicial review of legislative enactments, the
criterion of constitutionality to be applied by the courts is the express language of the Constitution. If only judges would follow the criterion of constitutionality recommended by the positivist interpretivists, there would be no cause for popular resentment of the
judiciary. A true positivist interpretivist judge would follow the suggestion of Justice Roberts in U.S. v. Butler, that when exercising judicial review the Court should simply "lay the article of the constitution which is invoked beside the statute which is challenged and
determine whether the latter squares with the former."5 Only if the act cannot be squared with the relevant constitutional provision should the Court strike the act. Roberts's suggestion as to how courts should act when reviewing legislative enactments is appealing,
but it simply does not work. His approach looks nice until one tries to figure out how to implement it when the constitutional provision involved is not completely clear. The Eighth Amendment protection against cruel and unusual punishment says nothing about which
punishments are cruel and unusual, the due process clauses of the Fifth and Fourteenth amendments say nothing about how much process one is due, nor does the Equal Protection Clause indicate how much protection citizens are to enjoy. In short, many of the
operative clauses of the Constitution simply are not amenable to interpretivist analysis. Accordingly, one faces a dilemma. Either one must abandon interpretivism or one must be willing to concede that certain constitutional provisions that appear to place some
restraints on the actions of both state and federal government officials do not, in fact, 98 H. Hamner Hill have any force at all. 6 Those unwilling to surrender so powerful a tool as the Equal Protection Clause cheerfully conclude that interpretivism must be abandoned
and that some form of noninterpretivism must be embraced. Such a rejection of interpretivism, however, is too quick. It fails to ask what motivates one to embrace interpretivism at all. It fails to realize that at one level at least, interpretivism seems to follow from a
positivist conception of law. There are two distinct theses that are central to contemporary legal positivism. First there is the famous separability thesis: the view that there is no noncontingent link between law and morality. The separability thesis is the most widely
noted feature of legal positivism, and it is the target of most of the philosophical attacks directed at legal positivism.7 Despite the attention that separability has drawn, it is not of great moment to this discussion. Rather, I want to focus on the other thesis central to
legal positivism-what Joseph Raz calls the sources thesis8 and what Hans Kelsen calls the doctrine of authorization. 9 Put roughly, the sources thesis states that for a norm to be a valid law, that norm must have been issued (posited) by a particular source (the
exact source being relative to a legal system). A norm, regardless of its form or its moral force, that does not issue from sources recognized as legitimate within a legal system simply is not a valid legal norm within that system. In a government of limited, delegated
lawmaking authority, the importance of the sources thesis for a theory of constitutional adjudication should be clear. Only those governmental bodies charged with lawmaking functions can make law, and then only within the scope of the authority delegated. As the
judiciary is not charged with lawmaking, the courts are not proper sources of law. But when the courts engage in noninterpretive review, they do make law. Striking an act as unconstitutional is no less an act of lawmaking than is the original promulgation of the act.
Thus the sources thesis appears to cut against noninterpretive review. It is, I believe, the sources thesis that underlies the philosophical allure of positivist interpretivism, and it is the sources thesis that ultimately leads me to develop a positivist noninterpretivism.
What, then, is wrong with positivist interpretivism, given the powerful brief the sources thesis appears to provide against noninterpretivism? Why even attempt to retain the sources thesis and still condone noninterpretive review? Because positivist interpretivists
adopt an overly restrictive concept of sovereignty. Following Bentham, positivist interpretivists contend that valid law must be tied directly to the will of the sovereign in a state. As Bentham puts it: "A law may be defined as an assemblage of signs declarative of
volition conceived or adopted by the sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or class of persons, who in the case in question are or are supposed to be subject to his power."10 When a law is viewed with
respect to its source, Between Clause-bound Literalism and Value Imposition the will of which it is the expression must, as the definition intimates, be the will of the sovereign in a state. Now by a sovereign I mean a person or assemblage of persons to whose will a
whole political community are (no matter on what account) supposed to be in a disposition to pay obedience .... A mandate [law] is either referable to the sovereign or it is not: in the latter case it is illegal, and what we have nothing to do with here.11 99 The lesson
drawn from Bentham is that law is an expression of the will of the sovereign. Any expression of will other than that of the sovereign, regardless of the form of the expression, is not, indeed cannot be, law. Law is created when and only when the sovereign expresses
its will. The only modification of the basic Benthamite theory of law necessary to make it applicable to a constitutional democracy is that lawmaking organs to whom the sovereign has delegated lawmaking powers may make valid laws only when acting within the
scope of the authority delegated to them. Thus, only the sovereign and agents of the sovereign may make law, and, then, in the case of the agents, only when acting within the scope of delegated authority. But where is the sovereign will expressed and where is
political authority delegated? For positivist interpretivists, the constitutional text is the sole expression of the sovereign will; that text, and that text alone, is determinative of law and of legitimate delegations of lawmaking power (authority). Any piece of legislation or
court action that contravenes constitutional requirements is, eo ipso, subject to judicial invalidation as is any delegation of lawmaking authority (on the federal level) not sanctioned by the text. The text of the Constitution, for positivist interpretivists, serves the
function of Kelsen's Grundnorm: It underwrites the legitimacy of all other laws or delegations of lawmaking authority. 12 Given that the fundamental expression of sovereign will is contained in the text of the Constitution, one may still ask of whose will is the
document an expression? Put another way, who is sovereign? The positivist interpretivist answers this question in an unacceptably narrow way. The will of which the constitutional text is an expression is the will of the framers of the document. 13 The excessive
narrowness of the Benthamite concept of sovereignty, which is adopted by modem positivist interpretivists, can be seen in Bentham's few remarks concerning the institution of judicial review. Being wed to the idea of an unlimited sovereign, Bentham finds the
institution of judicial review inconsistent with the very idea of sovereign authority. "By this unicompetence, by this negation of all limits, this also is to be understood, namely, that let the legislature do what it will, nothing that it does is to be regarded as null and void:
in other words, it belongs not to any judge so to pronounce concerning it: for, to give such powers to any judge would be to give the judge . . . a power superior to that of the legislature itsel£."14 Bentham's dislike for the institution of judicial review can be traced
directly to his theory of unlimited sovereign power-a theory of sovereignty expressly rejected 100 H. Hamner Hill by the framers of the Constitution. Accordingly, any theory of constitutional interpretation applicable to a government of limited powers must reject the
Benthamite theory of sovereign power. Despite this clear need, positivist interpretivists at least tacitly accept Bentham's concept of sovereignty. In the third section of this chapter I develop a theory of sovereignty that is markedly different from Bentham's, but one
that is nonetheless consistent with Bentham's positivist theory of law. 15 For the positivist interpretivist, having adopted both a Benthamite theory of law and a Benthamite (though not Bentham's) theory of sovereignty, determining what a particular constitutional
provision requires-what the standards of legal validity under that provision arerequires looking first to the express text and then, if the text is not selfexplanatory, to the intentions of the framers of the provision. To be sure, the positivist interpretivist program is an

only those
inviting one, but it cannot, as will be demonstrated shortly, succeed. At first blush, the positivist interpretivist project is quite alluring. Using the positivist interpretivist criterion for judging legislative enactments unconstitutional,

enactments that violate could legitimately be struck by the courts Judicial review, as
clear passages in the Constitution as unconstitutional.

an institution, would thus be immune from charges of improper judicial policymaking government by judiciary and . If the positivist
interpretivist project were viable, only those enactments that, to borrow a Quinean aphorism, wear their unconstitutionality on their sleeves could, and would, legitimately be struck as unconstitutional. There are few, if any, legal theorists who could find fault with
judicial invalidation of legislative acts running afoul of so stringent a criterion of constitutionality.16 Unfortunately, adopting such a criterion of unconstitutionality is unacceptable on several grounds. First, assuming, arguendo, that the position of the positivist
interpretivist does not fall into the intentionalist fallacy, there are still good reasons for believing that the project cannot succeed. Gary Sherman states the case with admirable clarity and eloquence: Christopher Hogwood has a simple goal: the reinterpretation of all
major Western symphonic works according to "original intention," using original instruments, original ensembles, original stylistic methods and so forth. Which is a laudable effort that, if carried out with Maestro Hogwood's usual skill, should contribute greatly to
aesthetic enlightenment. However, there is one aspect of the original performance that cannot be duplicated: None of us can listen to the result with 18th or 19th-century ears or feel its effects with 18th or 19th-century hearts. The world has changed and we cannot
pretend that Antonio Dvorak, Bela Bartok, Aaron Copeland, jazz and rock 'n' roll never happened. Irrespective of the purity of the presentation, we will not hear what our forebears heard. 17 Even if one could determine the original intention of the legislators who
enacted a provision, it is not clear that that intention would be of any Between Clause-bound Literalism and Value Imposition 101 use to a modem court attempting to apply a two hundred year-old provision of the Constitution to one of today's problems. Even
politically honest18 positivist interpretivists seem to miss the importance of this point. William W. Crosskey, a much neglected proponent of positivist interpretivism, was fond of quoting Justice Holmes on the true nature of legal interpretation. Holmes said that when
interpreting a provision: "We ask not what this man meant, but what those words would mean in the mouth of the normal speaker of English, using them in the circumstances in which they were used."19 The Holmes approach to interpretation lends support to the
positivist interpretivist just in case the speaker whose words were in need of interpretation was one of the framers of the provision. If the question raised by a party challenging some governmental action as unconstitutional were "Would this action, had it been
undertaken in 1789, have been unconstitutional?" then emphasizing original intentions would be completely correct. But such is not the question asked. Rather, the question is whether a particular governmental action, undertaken today, in the last quarter of the
twentieth century, is unconstitutional. Today's "normal speaker of English" speaks the language of the late twentieth century, not the late eighteenth. The crucial words are used in the context of today, not two hundred years ago. The approach of the positivist
interpretivist is thus not so much wrong as it is wrongheaded. Second, positivist interpretivism, taken seriously, makes hash of accepted Supreme Court practice. Regardless of the political bent of the decisions involved, interpretivism holds that most of the major
decisions in constitutional law, including Marbury v. Madison, 20 are illegitimate because, inter alia, there is no clear expression in the Constitution that the Court may review the constitutionality of acts of Congress. Among the cases other than Marbury that end up
being illegitimate on an interpretivist basis are Lochner v. New York, 21 Brown v. Board of Education, 22 Griswold v. Connecticut,23 Mapp v. Ohio,24 and Roe v. Wade. 2s The difficulty with positivist interpretivism is that it is not at all faithful to actual legal practice.
Courts do not, and have not in the U.S. legal experience, behaved as the positivist interpretivists would have them behave. A theory of constitutional adjudication that bears precious little relevance to the phenomena of which it is a theory or that seriously
misdescribes the phenomena to be explained is, at best, a poor theory. Finally, positivist interpretivism leaves no role for courts to play as agents of social change. Legal scholars have, over the past thirty years, gradually, sometimes grudgingly, come to recognize
the legitimacy of the claim of the American Legal Realists that courts can, do, and should act as agents of social change and social reform. The clearest example of such action by the courts is the Brown decision and its progeny. Other examples can be found in the
areas of criminal procedure, voting rights, and freedom of expression. In the positivist interpretivist model of constitutional adjudication, there is no place for such action. Anyone 102 H. Hamner Hill committed, as I am, to defending at least some role for the courts to
play as agents of social change must reject positivist interpretivism. Adequate explication of Supreme Court behavior and support of the courts as agents of social change require a theory of judicial review that allows the courts to impose extraconstitutional values.
Simply rejecting positivist interpretivism does not, however, settle the issue. One must develop a theory that allows judicial imposition of values not expressed in the Constitution. One such theory is nonpositivist noninterpretivism. In the next section I show why such
a theory cannot succeed. THE FAILURE OF NONPOSITIVIST NONINTERPRETIVISM Nonpositivist noninterpretivism sanctions judicial imposition of extraconstitutional values. In so doing, this theory underwrites the legitimacy of Brown and similar decisions. The
difficulty with this theory is that one needs a defense of the values one would have the courts impose when engaging in judicial review. One obvious approach to defending nonpositivist noninterpretivism lies in natural law theory. Natural law, so the argument goes,
provides a legitimate source for extraconstitutional values. Michael Perry provides a sophisticated natural law defense of nonpositivist noninterpretivism in The Constitution, the Courts, and Human Rights. Perry's natural law defense of non positivist
noninterpretivism is limited to human rights cases. He contends that noninterpretive review serves a special political function that cannot be served by any other institution or practice. For Perry, "[t]he function of noninterpretive review in human rights cases, then, is
the elaboration and enforcement by the Courts of values, pertaining to human rights, not constitutionalized by the framers; it is the function of deciding what rights, beyond those specified by the framers, individuals should and shall have against government."26
Deciding what rights people should and shall have against government involves deciding what is, at heart, a political-moral question. What is more, if the decision is to be politically legitimate, then the decision on the matter must be correct. 27 But what, one must
ask, is the criterion to use in judging the correctness of an answer to a political-moral question? For Perry, the criterion with which to judge the correctness of an answer to a political-moral question, and the ultimate source of extraconstitutional values, is "a particular
conception of the American polity that seems to constitute a basic, irreducible feature of the American people's understanding of themselves. The conception can be described, for want of a better word, as religious."28 Perry recognizes that his answer to the
question invites misunderstanding. The religious self-understanding that lies at the heart of Perry's defense of nonpositivist noninterpretive review is in no sense sectarian or theistic. Rather, it involves a commitment "to the notion of moral Between Clause-bound
Literalism and Value Imposition 103 evolution,"29 a commitment that recognizes that the will of the people is not the definitive answer to moral questions: The people may be (and often are) mistaken in their moral appraisal of certain questions. What is more, Perry
believes that the people recognize their fallibility and are committed to a search for right (or at least better) answers to fundamental moral questions. The people have a commitment to a higher law, a law that determines the correctness of an answer to a political-
moral question "independently of what a majority of the American people [believes or] comes to believe in the future."30 Thus, "noninterpretive review in human rights cases enables us to take seriously-indeed is a way of taking seriously-the possibility that there are
right answers to political-moral problems."31 The possibility that there are right answers, Perry argues, is one to which the American people are "religiously" committed. Assuming that Perry's views on the religious self-concept of U.S. citizens is correct, what
problems follow from entrusting to the courts the task of moving popular moral beliefs in the direction of correct moral beliefs? At least two quite distinct challenges can be leveled at Perry's delegation of moral decisionmaking. The first concerns political theory (why
the courts rather than the legislature?); the second concerns the epistemological worries raised by skepticism. To the charge that the courts are institutionally less competent to make moral decisions (or to reach decisions on difficult moral questions) than are
legislatures, Perry gives a predictable answer in terms of political insulation. The courts, Perry argues, being free from the will of the voters, are less likely to decide moral questions through reference to established moral conventions than are legislators. To be sure,
Perry's claims seem to be susceptible of empirical confirmation. A detailed study of judicial as opposed to legislative behavior concerning decision of moral issues should allow one to determine whether courts do in fact reach correct moral decisions more often than
do legislatures. Of course, this suggestion leads directly to the epistemological problems presented by skepticism. On the epistemological level, Perry's thesis raises serious questions about how the courts can come to know one of the right answers to a moral
question. An ethical skeptic or a moral relativist would simply challenge Perry's assertion that there are context-independent right answers to moral questions. The ethical skeptic argues that even if there are right answers to moral questions (if there is moral truth),
those answers are beyond the scope of human knowledge. There may well be moral truth, but human beings cannot obtain it and judges certainly have no better claim to it than do electorally responsible legislators. Because judges have no better claim to moral
truth than do legislators, and because judges are electorally unaccountable, entrusting to the courts the task of determining which moral standards a society shall adhere to runs the risk of a moral dictatorship by the judiciary. Hence the 104 H. Hamner Hill rejection
of noninterpretive review on skeptical grounds. Perry recognizes that the skeptic presents serious difficulties for his view, and he attempts to reject the position (Perry seems unaware of just how worthy an opponent the Pyrrhonic skeptic has proven in the history of
philosophy). Unfortunately, Perry simply rejects the position of the ethical (and, in passing, epistemological) skeptic without arguing against it. To be sure, Perry notes that many people reject ethical skepticism on many different grounds. Perry's response to the
skeptic smacks of question begging. Unless Perry can provide a stronger refutation of moral skepticism, nonpositivist noninterpretivism seems to be indefensible on theoretical grounds. What emerge then are strong reasons for rejecting both positivist interpretivism
and nonpositivist noninterpretivism. What is needed is a middle ground position, one that accepts the strengths of the extremes of the spectrum without embracing the critical defects inherent in each. Such a position, a positivist noninterpretivism, is set forth in the
next section. POSITIVIST NONINTERPRETIVISM The central defect in positivist interpretivism is that that theory does not sanction judicial imposition of any extraconstitutional values. Nonpositivist noninterpretivism remedies this defect, but at too high a price. The
justification of judicial imposition of extraconstitutional values provided by Perry rests on unstable epistemic foundations, runs the risk of justifying a judicial moral tyranny, and pays no heed at all to the sources thesis or the principle of electorally accountable
policymaking. For Perry, the moral principles that underwrite noninterpretive review exist and determine correct answers to moral questions independently of what a majority of the people believe or come to believe. What is needed, then, is a theory of judicial review
that remains faithful to the sources thesis and the principle of electorally responsible policymaking while sanctioning the judicial imposition of some extraconstitutional values. Positivist noninterpretivism is just such a theory. Central positivist noninterpretivism is the
development of a coherent version of legal positivism that does not tie sovereignty exclusively to the intentions of the framers. Such a development requires major modifications of the concept of sovereignty adopted by the positivist interpretivists. The remainder of
this section is divided into four subsections. The first deals with the concept of sovereignty. The second deals with the nature of the extraconstitutional values that the courts may impose under the concept of sovereignty developed in the first subsection. The third
discusses the role of the courts as agents of social change under a positivist noninterpretivist theory of judicial review. Finally, the fourth subsection discusses some of the difficulties presented by the theory I advocate. Between Clause-bound Literalism and Value
Imposition 105 The Concept of Sovereignty The defects noted above with positivist interpretivism can be traced directly to the overly restrictive concept of sovereignty adopted by adherents of that theory. The locus of sovereignty, for the positivist interpretivists, is
the will of the framers of the Constitution. Law must be an expression of the will of the sovereign, fundamental law is expressed in the Constitution, and the will of which the Constitution is an expression is the will of the framers. Accordingly the emphasis placed on
original intentions. Positivist noninterpretivism, on the other hand, identifies the locus of sovereignty as the will of a consensus of the people (the will of the people, for short). The people are sovereign, and it is the will of the people, not the framers, that is
determinative of law. At first this does not seem like a major modification, but it has far reaching implications for legal theory. Simply shifting the locus of sovereignty from the will of the framers to that of a consensus of the people allows one to see at least two critical
differences between interpretivist and noninterpretivist versions of positivist constitutional theory. Two areas in which important differences are readily visible are changes in the sovereign will and the determination of the meaning of constitutional provisions. Can the
will of the sovereign, with respect to issues of fundamental law, change over time? To this question both the interpretivist and noninterpretivist positivists answer in the affirmative. Their answers differ, however, with respect to the ease with which change is possible
and with respect to the mechanism of change. For the positivist interpretivist, the will of the sovereign, being linked to the will of the framers, is relatively fixed and static. The will of the sovereign on issues of fundamental law is fixed in the Constitution. Changes in
fundamental law, revisions in the will of the sovereign, require amending the Constitution. If fundamental law is to be created or changed, the positivist interpretivist insists that such changes should be made in the legislature, through the amendment process, not in
the courts. 32 For the positivist noninterpretivist, on the other hand, the will of the sovereign, even with respect to questions of fundamental law, is fluid and mutable; it changes as the will of the people changes. Times and social conditions change, and law, even
fundamental law, if it is to be of service to the people, must be able to change in response to changing circumstances. As Dean Harry W. Jones puts it, It has become a truism that law must be kept up to date, responsive to the continuing processes of social change.
Present-day judges are very much aware that concepts and categories received from law's past-privity of contract, sovereign immunity, "fault" in divorce actions and many more-may not order contemporary phenomena effectively and justly. It is not that these
concepts were necessarily wrong when they were handed down; we are, I think, too quick to assume that. It is simply that, whatever their original justification, they offer the wrong answers for today's problems. 106 H. Hamner Hill One hates, in a way, to see old
friends like negligence, consideration and "state action" withering away in vitality and influence, but, to borrow a phrase from Justice Roger Traynor, "the number they have called is no longer in service. "33 Jones's observations apply no less to questions of
fundamental law than they do to questions of more mundane areas of substantive law.34 For the positivist noninterpretivist, when the will of a consensus of the people changes with respect to a particular issue, the law on that issue has changed, and the courts
should be both empowered and required to enforce the new understanding. The reason underlying such an empowerment and such a requirement should be clear: A positivist theory of law, in which sovereignty is explicated in terms of the will of a consensus of the
governed, requires it. Law is an expression of the will of the sovereign, and sovereignty resides in the governed. As the role of courts is to enforce the laws of the sovereign, it follows that if the will of the sovereign on a particular issue conflicts with the will expressed
in a particular statutory or even constitutional provision, then the courts should enforce the current will as against the will expressed in the provision. The will expressed in the provision, not being reflective of the will of the sovereign, has lost the force of law. If courts
were to act on the will expressed in the provision, they would be acting contrary to the will of the sovereign, contrary to law. Such behavior on the part of courts no doubt takes place, but such actions are clearly ultra vires. The will of the sovereign is determinative of
law. If the will of the sovereign is clear, and a court knows that will and disregards it, for whatever reason, then that court has exceeded its legitimate authority and has acted illegally. In many instances, of course, when a question comes before a court for decision
the will of a consensus of the people may not be clear. It may be that people have failed to consider the issue or it may be that a consensus from a previous era is undergoing reexamination. In such cases, the role of the courts will be rather different than that
described in this subsection. Such situations are discussed in the third subsection. The second area in which important differences between the interpretivist and noninterpretivist versions of legal positivism appear is in the determination of the meaning of various
constitutional provisions. For the positivist interpretivists, ideally, a constitutional provision wears its meaning on its sleeve. All that one need do in order to determine precisely what a constitutional provision requires is to read the provision.35 When the meaning of a
provision is unclear, then the courts should look to the legislative history of the provision to determine the original intent. If, as in the case of the liberty clauses of the Fifth and Fourteenth amendments, the meaning of the provision is unclear, and there is no
legislative history indicating what the framers intended, the courts should refrain from imbuing the provision with their own values. Although there is a certain appeal to such a program, it has the unfortunate and Between Clause-bound Literalism and Value
Imposition 107 unacceptable effect of deoperationalizing many important provisions in the Constitution. Positivist noninterpretivism, on the other hand, has the court look to the understanding and will of a consensus of the people with respect to unclear constitutional
provisions in order to determine the meaning of such provisions. The precise meaning of a constitutional provision depends upon the understanding of a consensus of the people with respect to that provision. As times change, and as the people's understanding of a
constitutional provision changes, the legal requirements imposed by that provision change. An example of this sort of change can be seen in the attitudinal change with respect to equal protection that took place in the United States between 1896 (Plessy v.
Ferguson) and 1954 (Brown). As the people, prompted by the courts, gradually came to the view that the requirements of the Equal Protection Clause were inconsistent with state-enforced racial segregation (a view shared by a consensus of the people at least by
the late 1960s), the meaning of the Equal Protection Clause changed. That the framers of the Fourteenth Amendment did not intend to outlaw segregated public schools is of little importance. The will of the sovereign (the people) in 1954 was different than it had
been in 1867. If the will of the people concerning a constitutional provision at one moment in history is at odds with the will of an earlier generation, so much the worse for the previous generation. Sovereign will, for the positivist noninterpretivist, is determined
through reference to a consensus of the governed. In order to make sense of the continued legal validity of old (sometimes ancient) statutory or constitutional provisions that cannot properly be understood to be a part of the will of the current sovereign, one needs a
Lockean doctrine of tacit consent or tacit reauthorization. Unless the current sovereign specifically overrules actions of a previous sovereign, those actions remain in force. There are no major difficulties with this part of the consensus approach to sovereignty.
Difficulties arise in determining what the consensus is on controversial issues like abortion. I address those difficulties in the third subsection. Assuming that I can construct a positivist theory of constitutional interpretation in which the concept of sovereignty is not
tied to the intentions of the framers, what makes such a theory noninterpretivist? I address that question in the next subsection. Determining the Values Courts May Impose In the previous subsection I discussed modifications in the concept of sovereignty necessary
to divorce the will of the sovereign from the will of the framers. So doing sets the stage for a positivist theory of constitutional adjudication that is noninterpretivist. The theory being developed is positivist in that it adheres to the sources thesis and, as 108 H. Hamner
Hill will be demonstrated shortly, to the separability thesis. But it is also noninterpretivist. The central feature of any noninterpretivist theory of judicial review is that the courts are empowered legitimately to impose extraconstitutional values-values that are not clearly
stated in the Constitution nor intended by the framers to be imbedded in it. Because the concept of sovereignty outlined above locates sovereignty in the will of a consensus of the people, it should be clear that legal values need not be restricted to those expressly
stated in the Constitution. The text of the Constitution simply is not the final word on questions of fundamentallaw. 36 Because law is but an expression of the will of the sovereign, for a norm to become law all that is required is that that norm be a part of the will of
the sovereign. Thus, with certain exceptions, for a value to become law, all that is required is that that value become a part of the will of the sovereign. Even if these values are clearly extraconstitutional, such as the value of racial equality vis-a-vis the Fourteenth
Amendment, that value becomes law, becomes legally binding, when incorporated into the value scheme willed by a consensus of the people. Once a value, even an extraconstitutional value, is so willed, the courts may legitimately apply that value. If and when a
consensus determines that, say, equal protection of the laws is inconsistent with, inter alia, state-imposed racial discrimination, despite a deafening silence on such issues within the text of the Constitution, the value judgment adopted by the people becomes legally
applicable by the courts. Accordingly, the version of positivism being considered here is noninterpretivist. One might worry that this theory runs roughshod over constitutional protection of minority rights against majority tyranny. In the last subsection I discuss this
problem and a solution to it that involves restrictions placed on majority rule by the sovereign. Care must be taken at this point not to confuse the positivist noninterpretivism that I advocate with the nonpositivist natural law theory advocated by Perry. In my view only
those values that are part of the will of a consensus of the people are legally binding. If the people fail to incorporate a particular moral principle into their will, then that principle ultimately lacks legal force and can play, at most, a very limited role in legitimate judicial
decisionmaking. That is not to say, however, that such a principle has no role at all, as will be discussed in the next subsection. To deny that principles, regardless of their moral validity, not willed by the sovereign lack legal force would be to deny both the sources
and separability theses. That I am unwilling to do. Perry, on the other hand, straightforwardly denies the separability, and, eo ipso, the thesis. Perry argues that there are legally binding moral principles that exist and determine the correct answers to political-moral
questions "independently of what a majority of the American people [believes or] comes to believe in the future." 37 And, for Perry, those principles should govern Supreme Court behavior when engaging in noninterpretive review. Between Clause-bound Literalism
and Value Imposition 109 Courts as Agents of Social Change Even if one concedes that courts should apply the value scheme adopted by the sovereign as described here, it is not at all clear that there is a role for the courts to play as agents of social change.
Moreover, it is unclear that there is any role for moral principles not incorporated into the will of the sovereign in judicial review. If one were to hold, as I do not, that the consensus on a particular moral question determinative of law at any given moment in history is
the actual consensus of a prereflective or unreflective citizenry, neither of the roles mentioned above would exist. The courts would, in such a view, properly reflect change, but they would not initiate it. Moreover, such a view would result in the standards of
constitutionality being held hostage by popular sentiment. In such a view, the decision in Korematsu v. U.S. might well turn out to be fully legitimate, the ruling reflecting the will of the majority at the time, while the decision in Brown would be illegitimate in that it
failed, at the time the decision was made, to reflect a consensus. 38 Such results, however, can be avoided by allowing the courts to act as agents of social change, not merely as reflectors of it. Claiming that there are instances in which courts should be allowed to
act as agents of social change, where social change means a change in the will of the sovereign, has significant implications for legal theory. The claim suggests that a case sometimes comes before a court even though there is no clear law governing the case. The
simple fact of the matter is that there are cases in which either the law is unclear or in which there is no law on the matter. Situations of this sort can arise when cases are unforeseen or when the people realize that what was once an accepted solution to a problem
no longer "orders the phenomena justly and fairly." In either case, a court is faced with a very difficult task-it must decide a case39 in the absence of clear law (perhaps in the absence of law at all). This claim amounts to saying that there are gaps (lacunae) in the
law that courts must attempt to fill. 40 A gap exists in the law whenever a case falls within the jurisdiction of a court and there are no clear legal rules for its resolution. 41 To be sure, the existence of legal lacunae has been much debated, and the existence or
nonexistence of the same is a major question for legal theory. Even though this chapter is not a proper forum for exploring the issue of legal lacunae in depth, I do think it important to point out that my version of positivist noninterpretivism requires their existence.
Moreover, positivist noninterpretivism makes it the province of the courts to fill such gaps. When a court seeks to fill in a gap in the law, when it seeks to find/ make the law, what the court must do is attempt to determine, or to help in the determination of, the will of a
consensus of the people. If the court were to do otherwise, it would be abandoning the sources thesis and, accordingly, acting ultra vires. Thus saying that a court may, indeed has to, decide cases in the absence of law does not amount to 110 H. Hamner Hill a
rejection of the sources thesis. In the absence of a dear consensus, in the absence of law, a court should attempt to determine the consensus or to shape it, whichever is appropriate to the case. Determining the consensus of the people is never an easy task. The
task is made all the more difficult when the issue involves a moral problem that the people have not subjected, or will not subject, to critical examination. The consensus determinative of law should be a reflective rather than a prereflective or unreflective one. It is in
the provocation of critical reflection on difficult issues that the court has a role to play as an agent of social change. By tackling some tough issues, and attempting to find acceptable solutions to them, the courts have an extraordinary power to force critical evaluation
or reevaluation of moral beliefs. The courts have the ability to act as agents provocateurs of a developing moral consensus. When there is no dear consensus on a particular moral question, or when the consensus appears to be unreflective, the task of the courts
should be to try to determine an appropriate principle for resolving the issue and then see whether, upon reflection, a consensus develops that embraces the principle articulated. What is more, should a court fail to articulate a principle on which there is a
consensus, or should it articulate a principle that runs counter to the reflective consensus, there are a number of ways in which such a principle can be denied legal force. Several examples should help clarify this point. Three important cases dealing with difficult
moral issues exemplify the nature of the role that courts should play as agents of social change. The cases are Brown, Roe v. Wade, and Lochner, representing, respectively, the court successfully acting as an agent of social change, the court urging a moral
prindple on which there is not yet a consensus, and the court urging a moral principle rejected by the people. Depending upon how one reads the social science data, a strong case can be made to the effect that in 1954 there was no consensus concerning racial
equality and the Equal Protection Clause. The Court, however, saw that there was a need to address the issue of state-sponsored racial segregation and undertook to articulate a moral principle for dealing with the issue. To be sure, the princple articulated by the
Court in Brown prompted neither instant nor universal assent, but it did force a critical evaluation of attitudes concerning racial discrimination. And, importantly, within twenty years a dear consensus had developed, a reflective consensus, agreeing with the principle
articulated by the Court. In dear contrast to the Court's success in changing social attitudes in Brown stands its limited success in dealing with the abortion issue. In Roe the Court accepted the task of attempting to articulate a moral principle for dealing with the
problem of abortion that would be acceptable to a consensus of the people. The principle it articulated, however, far from coalescing a consensus, appears to have split public opinion. Few people are happy with the principle underpinning Roe. Those who favor
Between Clause-bound Literalism and Value Imposition 111 the decision often feel that the right to abort should be stronger than the one the Court articulated; those who oppose the decision feel that there should be no such right. The ultimate fate of the decision
still hangs in the balance, awaiting the development of a reflective consensus. The Court clearly succeeded in Roe in provoking critical examination of moral beliefs, but it has not yet and may never, succeed in discovering a moral principle governing the problem of
abortion acceptable to a consensus of the people. Should a consensus fail to develop, the Court should return the issue to the states for determination in more homogenous forums. In my view the courts simply cannot provide answers to all questions and on those
where they cannot, they should refer the questions to an organ of government more competent to decide. Lochner provides a clear example of what happens when the courts identify a political-moral principle that is actually, or upon reflection, ultimately, rejected by
the consensus. There are good reasons to believe that even in 1905 a majority of the people would have rejected the applicability of laissez-faire economics to many of the then current social problems. When the Court embraced laissez-faire, over Holmes's
objections that the Constitution was written for people of fundamentally differing views, public rejection of the principle adopted by the Court was swift and overwhelming. Legislators continued to pass legislation that flew in the face of laissez-faire principles (much of
it was subsequently struck), and President Harry Truman threatened to pack the Court with justices who would reverse Lochner. Within thirty years the Court saw the error of its ways and reversed. Had the Court not reversed, the people had and have other means
at their disposal with which to reject court decisions (short of a court-packing plan). Perhaps the most powerful of these means is the amendment process. One of the much overlooked features of the U.S. political landscape is the relation between the amendment
process and rejection of Supreme Court decisions. There have been, of course, but twenty-six amendments to the Constitution of which ten accompanied the original document and were necessary for ratification, and yet another two were a serious mistake and its
correction (prohibition). Of the remaining fourteen, five of the amendments are clear repudiations of Supreme Court decisions. The Eleventh Amendment reverses the decision in Chisholm v. Georgia, 42 the Thirteenth and Fourteenth reverse Scott v. Sanford, 43
the Sixteenth reverses Pollock v. Farmer~ Loan and Trust Co., 44 and the Twenty-sixth reverses Oregon v. Mitchell. 45 The amendment procedure is a powerful tool that the people can and have utilized to correct what are, in the eyes of the people, serious
mistakes on the part of the Court when it comes to answering difficult political-moral issues. When the Court errs, there are remedies.46 Having outlined a theory of judicial review that is both positivist and noninterpretivist, and that retains a role for the courts to play
as agents but not the sole determiners of social change, several problems 112 H. Hamner Hill remain to be considered. The problems addressed in the next subsection fall into two broad categories: those dealing with the determination of a consensus and those
dealing with the problem of majority tyranny. Difficulties with Positivist Noninterpretivism The core of my positivist noninterpretivist theory of judicial review is the location of sovereignty in the will of a consensus of the people. Consensus theories, however, face
several serious difficulties, not the least of which involves determining what the consensus is and whose views are to count toward the consensus. There are at least two approaches to determining a consensus: Everyone's views are to count and to count equally (a
moral one-person, one-vote principle), or the views of some count more than, and perhaps to the exclusion of, the views of others. The former approach has been adopted by Edmund Burke and by Alexander Bickel in his later writings; the latter by modern-day
contractarians, John Rawls, and others. Each of these approaches presents difficulties. If, on the one hand, the views of some are to count more than the views of others in the determination of the consensus, two problems arise. First, as the views of some persons
are valued more highly than the views of others, the charge that the consensus is elitist is hard to defeat. Even if those whose views are to be taken more seriously are identified as "competent judges" according to Rawls,47 the consensus that emerges from the
competent judges is in no way democratic. In a society at least nominally committed to democratic policymaking, this is a serious difficulty. The second difficulty involves the determination of who is to count as a competent judge in moral matters. The identification of
competent judges in any area of inquiry often smacks of questionbegging or stacking the deck. Determining who is a competent judge is often a question of power politics, a determination geared toward maintaining the status quo. Even in objective realms like
physical science, Thomas Kuhn, Paul Feyerabend, and their followers argue that people who disagree with the majority power brokers are, despite their objective competence, ruled incompetent. Disagreement with the majority becomes a pretext for banishment to
the gulag of incompetence. One should recall Bertrand Russell's conjugation of the highly irregular verb: I am firm, you are obstinate, he is a pig-headed fool. Although there may well be acceptable answers to the problem of determining who is to count as a
competent judge (though I, I should confess, am dubious of even that modest prospect), I can see no way to counter the charge that entrusting policymaking exclusively to competent judges is inherently antidemocratic. It is, of course, disturbing that unqualified (not
to say incompetent) persons take part in the democratic process, but democracy may well require not only a right to be wrong but a right to be stupidly wrong. To paraphrase Oliver Wendell Holmes, a commitment to democracy Between Clause-bound Literalism
and Value Imposition 113 seems to require that the people are entitled to go to hell in a handbasket, so long as they vote themselves there. Of course, embracing the other option, namely, that everyone's views count equally toward the consensus, poses a clear
danger of majority tyranny. Burke noted long ago that there is nothing sacred in the concept of majority rule. It applies, where it does, as a result of history and habit, not because it is in any way an objectively superior form of government. Pure majority rule subjects
the standards of legality and constitutionality to the sentiments rampant in the citizenry.48 Protection of minority rights becomes, to put it mildly, a very serious problem. Despite the serious nature of problems such as the protection of minority rights, my positivist
noninterpretivist theory commits me to what Bill Nelson has called "radical democracy." Ultimately the exclusive determinant of what law is is the will of a consensus .of the people. If the people will unwise, politically unsound, or clearly immoral laws into existence,
then we are stuck with unwise, unsound, or immoral laws as sovereignty is located in the will of the people. As Justice Stewart said, dissenting in Griswold v. Connecticut, the silliness, or stupidity, or even asininity of a law does not, in itself, make such a law
unconstitutional. 49 I wholeheartedly embrace Stewart's position. The courts simply are not the place within our system to seek protection from unwise, immoral, or blatantly discriminatory legislation. To be sure, such protection must be sought somewhere, but, as
Learned Hand so ably argues: "This much I think I do know-that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting
upon the courts the nurture of that spirit, that spirit in the end will perish."50 To be sure, a society needs to try and protect itself against majority tyranny. But such protection lies chiefly outside the courts.51 There is, however, a limited role for the courts to play in
providing such protections. One way the courts can aid in protecting society against majority tyranny is through the enforcement of self-imposed limits on majority power or action, that is, empowering courts to force the majority to abide by rules to which it, the
majority, has agreed-rules that effectively disable the majority from asserting its will in certain areas. The restrictions on state and federal government actions found in Article I, Sections 9 and 10, and in the Bill of Rights count as instances of disabling rules that the
courts could enforce. To be sure, such a move promotes protection of minority rights, but it does not guarantee them absolutely. Ultimately, of course, the protection offered by the courts is minimal in that the courts are empowered to enforce only those limitations
on majority power that the majority accept. Should a super-majority (the two-thirds of the people needed to amend the Constitution-a number itself the product of self-imposed restraint) decide to free itself from the fetters of current constitutional restraints, then the
courts can offer no protection. 114 H. Hamner Hill Though I find the idea repugnant, I can see no good reason to suppose that the people could not free the states from the restrictions of the Fourteenth Amendment through the repeal process. If there were to be any
protection from such action, it would lie outside the courts. One thing that a positivist noninterpretivist theory of judicial review cannot guarantee, and does not pretend to guarantee, is that the courts will articulate correct moral values, or that the consensus that
emerges will embrace correct values. There is no protection against morally bad, yet legally valid, laws. And there is no guarantee that a future decision like Brown would be legitimate while one like Lochner would be illegitimate. Those decisions and decisions like
them stand on the same footing: Each is potentially legitimate. Where they differ is in the verdict history has passed on them. To ask for a guarantee that all decisions in cases of noninterpretive review will be morally correct is to ask too much from a theory of
judicial review. To seek, as so many constitutional theorists seek, a theory that guarantees Brown while protecting against Lochner is truly the elusive quest. NOTES 1. Alexander Bickel begins his classic defense of nonpositivist noninterpretive review, The Least
Dangerous Branch, with the observation "The least dangerous branch of the American government is the most extraordinarily powerful court of law the world has ever known. The power which distinguishes the Supreme Court of the United States is that of
constitutional review of actions of the other branches of government, federal and state." A. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis, Ind.: Bobbs-Merrill, 1963), p. 1. 2. Critics of judicial review (Ely among them)

Whenever the Court upholds a legislative enactment a far more

frequently fail to discuss one of the important functions of judicial review-legitimation. (

common result than invalidation), that enactment gains an air of legitimacy . For a discussion of the legitimating function, see, A. Bickel, supra note 1, p.
29 ff. 3. J. H. Ely, Democracy and Distrust: A Theory of Judicial Review (New Haven, Conn.: Yale Univ. Press, 1980), p. 5. 4. For excellent contemporary statements of the positivist interpretivist position, see, R. Berger, Government by Judiciary (Cambridge:
Harvard, 1977) and R. Bork, Traditional Morality in Constitutional Law (Washington D.C.: American Enterprise Institute, 1984); R. Bork, "Neutral Principles and Some First Amendment Problems," 47 Indiana L. J. 1 (1971). Excellent contemporary statements of the
nonpositivist noninterpretivist position can be found in A. Bickel, supra note 1; M. Perry, The Constitution, the Courts, and Human Rights (New Haven, Conn.: Yale Univ. Press, 1977); T. Grey, "Do We Have an Unwritten Constitution," 27 Stanford L. Rev. 703
(1975). 5. U.S. v. Butler, 297 U.S. 1, 63 (1936). 6. One is reminded of the Vince Lombardi theory of equal protection. "Sure," Coach Lombardi is reported to have said, "I treat all my players equally. They're all scum." On a strict interpretivist reading of the Equal
Protection Clause, as neither the language of the constitutional provision nor the intent of the framers Between Clause-bound Literalism and Value Imposition 115 gives any guidance, a court would be compelled to rule a legislative equivalent to the Lombardi
approach constitutional. Similarly, whenever a legislature says, "But that is all the process she is due," the court would be compelled to hold whatever minimal process the legislature provided as adequate. 7. See, for example, Lon L. Fuller, The Morality of Law
(New Haven, Conn.: Yale Univ. Press, 1964); "Positivism and the Fidelity to Law," 71 Harvard L. Rev. 593 (1958). 8. Joseph Raz, "Legal Reasons, Sources, and Gaps," in Joseph Raz, The Authority of Law (Oxford: Clarendon Press, 1979), p. 53. 9. For a full
statement of Kelsen's doctrines of authorization, see Stanley Paulson, "Material and Formal Authorization in Kelsen's Pure Theory," 39 Cambridge L. ]. 172 (1980). 10. Jeremy Bentham, Of Laws in General, H.L.A. Hart ed. (Oxford: Oxford Univ. Press, 1970), p. 1.
11. Ibid., pp. 18 ff. 12. For a discussion of the Constitution as Grundnorm see Paulson, supra note 9. Paulson makes the important point that the Constitution serves both a validating and an invalidating function; that is, the Constitution allows one both to determine
which laws are invalid and which are valid. As noted above, the legitimating function of judicial review is a much neglected feature of the practice, neglected primarily by critics. 13. Robert Bork has noted that whenever possible judges talk as if they were searching
for the intent of the framers ("Neutral Principles and Some First Amendment Problems," supra note 4 at pp. 3-4). Other authors insist that judges should be bound by the intent of the framers. Berger, supra note 4; T. Diamond, "Democracy and 'The Federalist': A
Reconsideration of the Framers' Intent," 53 Am. Pol. Sci. Rev. 52 (1959); J. P. Frank and R. F. Monroe, "The Original Understanding of 'Equal Protection of the Laws,'" 50 Columbia L. Rev. 131 (1950); H. Morrison, "Does the Fourteenth Amendment Incorporate the
Bill of Rights?: The Judicial Interpretation," 2 Stanford L. Rev. 140 (1949); C. Warren, "The New Liberty Under the Fourteenth Amendment," 339 Harvard L. Rev. 431 (1926). There are, of course, many who reject the quest for the original understanding. A. Bickel,
"The Original Understanding and the Segregation Decision," 69 Harvard L. Rev. 1 (1955); P. Brest, "The Misconceived Quest for the Original Understanding," 60 Boston Univ. L. Rev. 234 (1980); A. S. Miller and R. F. Howell, "The Myth of Neutrality in Constitutional
Adjudication," 27 Univ. of Chicago L. Rev. 661 (1960). 14. J. Bentham, "The Constitutional Code," in The Works of Jeremy Bentham, vol. 9, R. Bowring, ed. (London: Simpkin, Marshall, and Co., 1843), p. 121. 15. In large part I take my task here to be similar to that
of Hart in his acceptance of a positivist theory of law while rejecting Austin's command theory of law and material reduction theory. I accept the basic Benthamite position on the nature of law, but I adopt a non-Benthamite, noninterpretivist theory of sovereignty. 16.
One criticism of the interpretivist criterion of unconstitutionality is that it is too stringent. Felix Cohen argues that the interpretivist criterion, expressed in James Bradley Thayer's famous rule of clear mistake, amounts to a rule that what is rational is constitutional.
"Taken seriously, this conception makes of our courts lunacy commissions sitting in judgment upon the mental capacity of legislators and, occasionally, of judicial brethren." F. Cohen, "Transcendental Nonsense and the Functional Approach," 35 Columbia L. Rev.
809, 819 (1935). 116 H. Hamner Hill 17. G. Sherman, "Keeping Alive a 2-century-old Document," National L. ]., Monday, October 13, 1986, p. 13. 18. One of the problems that one encounters in current debates about constitutional interpretation is that various
theories of interpretation are often used to mask political convictions. The work of William Winslow Crosskey, for example, is almost totally ignored by current proponents of positivist interpretivism. This is odd in that Crosskey provides a careful and detailed study of
the meaning of various constitutional provisions as they were understood by the framers in the context of the late eighteenth century. Crosskey's analysis, however, reveals that provisions like the Commerce Clause were originally intended to grant the federal
government extraordinarily broad regulatory powers. Such a reading of the original intention of the Constitution is at odds with the political motives of many positivist interpretivists, so it comes as little surprise that Crosskey's work is virtually ignored. See, W. W.
Crosskey, Politics and The Constitution in the History of the United States, 3 vol. (Chicago: Univ. of Chicago Press, 1980). 19. 0. W. Holmes, "The Theory of Legal Interpretation," 12 Harvard L. Rev. 418 (1899). Crosskey, supra note 18, uses this quote from Holmes
on the frontispiece of the first two volumes of Politics and the Constitution. 20. 5 U.S. (1 Cranch) 137 (1803). 21. 198 u.s. 45 (1905). 22. 347 u.s. 483 (1954). 23. 381 u.s. 469 (1965). 24. 367 u.s. 643 (1961). 25. 410 u.s. 113 (1973). 26. Perry, supra note 4, p. 93. 27.
Perry does not subscribe to the view that there is a uniquely correct answer to each political-moral question-there may be several. Thus he rejects a moral version of Dworkin's right answer thesis. What Perry desires is a process of dispute resolution likely to reach
one of the right answers to difficult politicalmoral questions. He believes that the process most likely to succeed is noninterpretive review. 28. Perry, p. 97. 29. Perry, p. 99. 30. Perry, p. 115. This passage in Perry clearly identifies his nonpositivist views. He requires
neither that the moral values that underwrite correct legal decisions in hard human rights cases be enacted by the sovereign (made part of the law), nor that they be accepted by the sovereign. Such moral values exist and determine the correct answers to legal

The
questions independently of what the sovereign believes or comes to believe. Perry thus rejects both the sources thesis and the separability thesis. Rejecting these theses identifies his view as one that is nonpositivist. 31. Perry, p. 102. 32.

positivist interpretivist's response to bad laws is "Get the legislature to change them." This view has been
expressed in several important Supreme Court decisions concerning the standard of review. Justice Black, discussing a Kansas debt adjustment statute noted, "The Kansas debt
statute may be wise or unwise. But relief, if any be needed, lies not with this body but with the body constituted to pass laws for the State of Kansas." Ferguson v. Skrupa 372 U.S. 726, 732 (1963). Similarly, Justice Potter Stewart said of Connecticut's birth control
statute, "I think this is an uncommonly silly law. . . . But we are not Between Clause-bound Literalism and Value Imposition 117 asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States
Constitution. And that I cannot do." Griswold v. Connecticut 381 U.S. 469, 527 (1965) (Justice Stewart dissenting). 33. H. Jones, "An Invitation to Jurisprudence," 74 Columbia L. Rev. 1023, 1031 (1974). 34. It should be noted that Jones's reference to state action
doctrines implicitly endorses my view in that state action, as explicated for purposes of Fourteenth Amendment analysis, is a question of fundamental law. 35. Of course, such a reading of the First Amendment would support Justice Black's rather extreme view that
"no law" means no law and, accordingly, that all libel and slander laws are unconstitutional. 36. The text is, however, the best place to start, and, frequently, the final word on the matter. The constitutional text has a very special place in U.S. political and legal theory,
and any theory of judicial review that fails to take account of or that obscures that place is defective. Perhaps the single most devastating challenge that can be leveled against the American Legal Realists is that they give no account of the importance of legal texts,
including the constitutional text, in their account of law. 37. Perry, supra note 4, p. 115. 38. Some constitutional theorists have managed to read the available social science data so as to find that in 1954 the decision reached in Brown was, in fact, reflective of an
actual consensus existing in the U.S. public. Although I would like to believe that we do, in fact, live in an enlightened society, the data do not support such a belief. To be sure, there was in 1954 a growing uneasiness with state-enforced racial segregation, and the
Court in Brown took an active role in the reconsideration of a social policy. I think it at best fanciful, however, to suggest that the Brown decision actually reflected the views of a consensus of the people at the time that the decision was handed down. The Court in
Brown initiated and shaped a new consensus, it did not reflect a newly developed one. 39. The principal task of the judge is to decide cases properly brought before the court. One aphorism familiar to most beginning law students is that the judge is often in error but
never in doubt. As disturbing as the claim may seem, a wrong decision from a judge is, for systematic reasons, better than no decision at all. 40. A full discussion of the problem of normative gaps or normative closure is far beyond the scope of the present chapter.
For those interested in this problem, however, some of the leading works on the topic are Carlos Alchourron and Euginio Bulygin, Normative Systems, (Wein: Springer-Verlag_ 1971); Logique et Analyse N.S. 9 (1966) is devoted to the problem; Joseph Raz, The
Authority of Law, ch. 5; and Julius Stone, Legal Systems and Lawyer's Reasonings (Stanford, Calif.: Stanford Univ. Press, 1964). 41. One implication of embracing the existence of normative gaps in legal systems is that one must reject ~onald Dworkin's famous
right answer thesis. The existence of legal gaps requires that there be cases within the jurisdiction of courts for which there is no uniquely correct legal resolution. Whether one treats the existence of gaps as a beneficial or detrimental feature of a legal system is a
separate question. What one must do, however, is accept that there are cases for which there is no right answer. 42. 2 Dall. 419 (1793). 118 H. Hamner Hill 43. 19 How. 393 (1857). 44. 157 u.s. 429 (1895). 45. 400 u.s. 112 (1970). 46. One should also recall
President Andrew Jackson's rebuff of Chief Justice John Marshall: "Mr. Marshall has made his decision, let him enforce it." 47. J, Rawls, "Outline of a Decision Procedure for Ethics," 60 Phil. Rev. 177 (1951). 48. Stability in law, particularly constitutional law, is a
desirable trait. One does not want the standards of what is legal to change too rapidly. Accordingly, a tedious process like the amendment process, while allowing for expressions of the popular will, slows the rate of change. 49. See note 32, supra. 50. Learned
Hand, "The Contribution of an Independent Judiciary to Civilization," in The Spirit of Liberty, I. Dillard, ed. (New York: Knopf, 1953), p. 165. 51. James Bradley Thayer, long an opponent of "judicial activism," argued at the tum of the century that "under no system can
the power of courts go far to save a people from ruin; our chief protection lies elsewhere." Thayer, unfortunately, did not indicate just where "elsewhere" might be. J. B. Thayer, "The Origin and Scope of the American Doctrine in Constitutional Law," in Legal Essays
(Boston: Boston Book Co., 1908), p. 39. SIX Toward a Public Values Philosophy of the Constitution STEPHEN M. GRIFFIN A relatively new type of constitutional theory involves applying moral and political philosophy to explain, justify, and criticize aspects of
constitutional law. This chapter addresses a recent development in this category of constitutional theory-the effort to construct a public values or "neorepublican" philosophy of the Constitution.1 The development of this philosophy is an attempt to articulate a distinct
alternative to the democratic relativism that has dominated U.S. political and constitutional thought in this century. 2 The proponents of a public values philosophy reject the political theory of interest group pluralism that awards political victory to the greatest
aggregation of private preferences. They argue that the Constitution and the Bill of Rights presume "a conception of the political process as an effort to select and implement public values."3 Public values can be understood as the common goals or aspirations of
the American community, exemplified by the values contained in the Constitution. Despite the historical appeal of neorepublicanism, its proponents have not so far been able to provide much content to the concept of a public value. A public values approach may
also be usefully contrasted with traditional constitutional theory (which concerns itself with reconciling judicial review and democracy) in that this approach seeks not merely to influence the constitutional practices of government, but to find a new audience for
constitutional discussion among the citizens of the United States. The general idea is that public discussion over issues of constitutional principle should be encouraged in the hopes of providing a more secure basis for the maintenance of freedom and equality. This
encouragement of public discussion on constitutional, matters can be regarded as a democratization of political and constitutional theory, the aim of which is a greater degree of awareness of constitutional values and participation in constitutional and political
change. 119 120 Stephen M. Griffin The idea of a public values philosophy presents certain difficulties. For example, it is not immediately clear how the notion of a "public value" is to be distinguished from a purely private preference. Further, because the objective
of the political process from a public values viewpoint is to select those values, the question arises as to the nature of the institutions and practices required to ensure that this process is not unduly influenced by powerful aggregations of private preferences. To see
how these difficulties might be addressed and a public values philosophy elaborated, this chapter explores the public values alternative within the framework of Rawls's theory of justice.4 Five main topics are considered: the justification of "public" values, the
structure of Rawls's system of constitutional rights, the worth of liberty, whether judicial review can be justified within Rawls's theory, and the contrast between democratic relativism and a public values philosophy. PUBLIC VALUES AND THE ORIGINAL POSITION
How are public values to be distinguished from mere preferences? Rawls's theory provides a straightforward solution to this problem: A public value is a value that would be affirmed from the perspective of the original position. Unfortunately, Rawls's idea of an
original position has proved problematic, as it is the source of many misunderstandings. I will therefore offer an account of the original position that I hope will be less vulnerable to some standard objections. The original position is a set of appropriate conditions to
govern the selection of principles of justice for the basic structure of society. In trying to accurately and completely describe these conditions, the conception of the original position will inevitably appear as a philosophical ideal. But it is important to understand that
the conditions specified are intended to be the restrictions on argument we try to adhere to every time we reason about questions of social justice. When Rawls first introduces the concept of the original position, it is in terms of a social contract metaphor, an
assembly of persons gathering to choose principles of justice.5 In the main, he continues to use the original position as a social contract metaphor, speaking of "the parties" in the position and the like. But Rawls makes it quite clear that the original position should
be interpreted so that anyone can assume its perspective at any time: [O]ne or more persons can at any time enter this position, or perhaps, better, simulate the deliberations of this hypothetical situation, simply by reasoning in accordance with the appropriate
restrictions .... To say that a certain conception of justice would be chosen in the original position is equivalent to saying that rational deliberation satisfying certain conditions and restrictions would reach a certain conclusion. . . . It is important that the original
position be interpreted so that one can at any time adopt its perspective. 6 A Public Values Philosophy of the Constitution 121 This is how I regard the original position: It is a collection of restrictions on the kinds of arguments we may use to advocate or oppose
given principles of justice. If we find these restrictions persuasive, we will employ them in reasoning about questions of justice, and they will affect the arguments we make in a real and nonhypothetical fashion. One may think that what is hypothetical about the
original position is the agreement that is made there, the hypothetical contract Rawls speaks of.7 Rawls is actually somewhat ambiguous on this point. When he tries to explain specifically why his theory is a social contract theory, he justifies the term by referring to
the fact that the theory must apply to many persons, must be a public conception of justice, and that persons are expected to adhere to the agreed principles. 8 But all of these conditions can be built into the original position as appropriate conditions for argument
without a contract ever occurring, real or hypothetical. Given the severe restrictions on information appropriate to reasoning about justice, there is no basis for bargaining or negotiation in the original position. The original position is thus the standpoint of one person,
who by virtue of the restrictions imposed on his or her reasoning (some of which are inspired by the social contract tradition), can be assured that his or her favored principles would be chosen by anyone adopting that standpoint. 9 It is thus misleading to
characterize Rawls's theory as a social contract theory if what is meant is that the principles of justice are derived from or justified through a contract, real or hypothetical. If the question is one of justification, Rawls is not best understood as a contractarian, and his
theory is not best understood as a social contract theory. The principles of justice do not acquire their initial justification from a hypothetical contract but from the moral force of the conditions on argument that make up the original position. The condition on argument
that ensures the values selected will be public values is the requirement that we must exclude the effects on our reasoning of information that prevents us from achieving an objective standpoint free of prejudice and bias (the "veil of ignorance"). It is not necessary to
speak of hypothetical parties laboring under a sudden, mysterious denial of knowledge. We simply take care not to support the arguments we make in favor of our preferred principles of justice (public values) with certain kinds of information. The information that
Rawls excludes essentially relates to the characteristics of persons that form the basis for personal preferences.10 Due to this restriction on information, the values selected in the original position are substantially independent of existing preferences. They are public
values. For a public values philosophy, the question then arises whether the political system can be designed to approximate the fairness of the original position. If this can be done, the political system will be able to properly fulfill its role of selecting public values.
The next three sections explore aspects of Rawls's constitutional scheme in order to 122 Stephen M. Griffin determine how the political system must be structured to fulfill this role. RAWLS'S SYSTEM OF CONSTITUTIONAL RIGHTS Rawls's first principle of justice,
the principle of equal liberty, states that the social primary goods known as the basic liberties should be arranged to form the most extensive set of liberties justifiable from the standpoint of the original position, and that the set of liberties should be distributed equally
to all citizens. The content of the set of basic liberties is as follows: (1) liberty of conscience (including religious freedom); (2) the political liberties and freedom of association (including the right to vote, to run for public office, freedom of speech, press, and
assembly); (3) the liberty and integrity of the person (including the right to hold personal property, freedom from slavery, and freedom of movement and occupation); and (4) the rights and liberties covered by the rule of law (including freedom from arbitrary arrest
and seizure and all other liberties that may be usefully summarized under the heading of "due process"). 11 It appears that Rawls intends all of the basic liberties to be thought of as constitutional rights, rights that any just constitution must contain. As Rex Martin
has observed, however, Rawls does not provide us with an account of what he takes a "right," constitutional or otherwise, to be.12 Following Martin's Rawls-like theory. of rights then, we may define a right for Rawls as "an individual's legitimate expectation as to
what he would receive in a just institutional distribution of social primary goods."13 Further, in virtue of the list of basic liberties Rawls gives, we may characterize rights as things that belong to individuals as persons, "which can be individuated (parceled out, equally,
to the individuals within a certain class) in some determinate amount or to some determinate degree, under publicly recognized rules, such that the distribution of that [social primary] good can be guaranteed to each and every member of that class."14 All of Rawls's
basic liberties-constitutional rights meet these criteria. In his most recent articles, Rawls has used the fundamental capacities and highest order interests of moral persons to have an effective sense of justice and to form, revise, and pursue a conception of the good
to justify recognition of his general categories of constitutional rights.15 Rawls tends to think in terms of three categories: rights that are supported by the interest in having an effective sense of justice; rights that are supported by the interest in having a conception
of the good; and rights that are necessary so that the foregoing rights may be properly guaranteed.16 Thus, the political liberties and freedom of thought are supported primarily on the basis that they enable citizens to express their sense of justice. Liberty of
conscience and freedom of association are supported primarily on the basis that they enable citizens to have a conception A Public Values Philosophy of the Constitution 123 of the good. The rights connected with the liberty and integrity of the person and the
various due process rights are necessary if the other rights are to be guaranteed.17 Together, these different rights form a family or system of rights. As conflicts among the rights are inevitable, any right may be limited in the process of achieving a coherent system,
and so no right is "absolute." There are no "preferred" rights in Rawls's theory. Further, Rawls does not assume that the entire system of rights can be derived solely from the universal interests of a moral person. Deriving a more specific system is a complex
process involving arguments from the perspective of the original position, establishing scopes and weights for the different rights, taking into account constitutional considered judgments, and any appropriate facts and circumstances.18 Rawls simply remarks: "The
historical experience of democratic institutions and reflection on the principles of constitutional design suggest that a practicable scheme of liberties can indeed be found."19 Rawls therefore holds that the priority of the basic constitutional rights is not infringed by
drawing limits to regulate them into a coherent system of rights. Rules of order and regulations of "time, place, and manner" are all appropriate. Rights may also be restricted, which is to say that they may be limited for the purpose of securing an even more
extensive system of rights. There are two sorts of cases envisioned by Rawls: restrictions on the rights of political participation to protect other rights through the mechanisms of constitutionalism, and restrictions of an emergency nature necessary to protect the
entire system of rights in time of war or other constitutional crisis.20 Both cases are familiar enough in our constitutional law. Rawls sees "[t]he traditional devices of constitutionalism-bicameral legislature, separation of powers mixed with checks and balances, a bill
of rights with judicial review"21-as being adopted for a just constitution on the grounds that by limiting majority rule, the system of rights is made more extensive or more secure. The restriction is thus built directly into the constitution.22 By contrast, restricting
constitutional rights in an emergency involves interests extraneous to the system of rights, and such restrictions do not appear in the constitution. The sort of emergency Rawls has in mind is a very rare one, a constitutional crisis requiring "the more or less
temporary suspension of democratic political institutions, solely for the sake of preserving these institutions and other basic liberties."23 In a well-ordered society (or even in our own), such a crisis is unlikely to occur because such a society is a stable political order
with a constitutional system flexible enough to handle "normal" emergencies such as foreign wars or even internal rebellions. Rawls is skeptical of Supreme Court decisions that imply such a crisis existed at some point in U.S. history, and he concludes that such a
crisis is unlikely to ever occur in the United States or in any well-ordered society.24 124 Stephen M. Griffin THE WORTH OF LIBERTY So in a Rawlsian well-ordered society, all citizens possess a determinate bundle of guaranteed constitutional rights. Given the
inequalities in economic goods allowed by the second principle of justice, however, each citizen does not enjoy the same opportunity to exercise those rights. It appears that some citizens will be more able to pursue expensive conceptions of the good and that some
citizens will have a greater ability to influence the political process. Rawls thinks of this difference between possessing a right and the ability to exercise it as a distinction between liberty and the worth of liberty. The basic liberties (or, as we have seen, all basic
rights) are guaranteed to even the most poor and uneducated in an equal manner by the first principle of justice. The inequalities allowed by the second principle permit the worth of liberty to vary among the groups who possess different amounts of economic
goods. 25 It is at this point that egalitarian or Marxist critics of Rawls pose a strong objection. Rawls appears to assume too easily that inequalities in economic goods are compatible with equality in basic rights. What will the real "worth" of liberty be to someone who
is one of the leastadvantaged members of society? What will prevent powerful individuals or economic interests from unduly influencing the political process? Inadequate material means will often translate into a lack of political power. Why doesn't Rawls simply
stipulate that all of the social primary goods be distributed so that the worth of the basic liberties is equal for everyone? Rawls attempts to meet this objection through his guarantee of the "fair value" of the political liberties. In A Theory of Justice, his introduction of
this idea seemed somewhat ad hoc. 26 Once we better understand the nature of Rawls's argument for the political liberties, however, we can see that his theory in fact requires that the worth of the political liberties be made as equal as possible for all. Further, the
requirement that the equal worth of the political liberties be guaranteed has important egalitarian implications for Rawls's theory as a whole. Although there are no rights with a preferred position in Rawls's system, the political liberties do hold a special place. If we
keep in mind several themes in the preceding discussion, it is not hard to understand why this is the case. The moral interest that chiefly supports the political liberties is the interest in exercising our sense of justice. Our sense of justice is the capacity that allows us
to attain the perspective of the original position and therefore to understand and apply the principles of justice. It thus has a central place in Rawls's theory. When we add to this the fact that the political process is responsible for the implementation of the two
principles, the special role of the political liberties becomes apparent. So far as possible, we want the political process to mirror "the fair representation of persons achieved by the A Public Values Philosophy of the Constitution 125 original position."27 Allowing
inequalities in the political process would be similar to allowing inequalities between persons in the original position. Such inequalities would be a severe violation of the equal status and dignity of individuals. Inequality would imply that those favored by it are
somehow more worthy of exercising their sense of justice and governing society than those less favored. We therefore arrive at the conclusion that the worth of the political liberties to all citizens must be equal, or as equal as possible. This guarantee of the "fair
value" of the political liberties is similar to the idea of fair equality of opportunity in the second principle of justice.28 Absolute equality is not to be expected, but we take whatever steps we can to ensure that everyone has a fair chance to hold public office, to be
informed about political issues, to place items on the public agenda, and to generally influence the political process. Rawls suggests that the following measures be considered: "Property and wealth must be kept widely distributed" ;29 and political parties must be
kept independent of concentrations of private economic power, public financing of campaigns and elections, limits on political contributions, and subsidies to encourage a full airing of opinions on public issues.30 He remarks Historically one of the main defects of
constitutional government has been the failure to insure the fair value of political liberty. The necessary corrective steps have not been taken, indeed, they never seem to have been seriously entertained. Disparities in the distribution of property and wealth that far
exceed what is compatible with political equality have generally been tolerated by the legal system. Public resources have not been devoted to maintaining the institutions required for the fair value of political liberty. 31 The concept of guaranteeing the fair value of
the political liberties is a powerful one. Under certain assumptions, it can become a mighty egalitarian engine. Rawls implies at some points that the inequalities allowed by the full operation of the second principle will still be too great to be tolerated under the fair
value standard.32 The fair value argument implies that if a completely equal distribution of social primary goods is the only means of attaining the equal worth of the political liberties, then that is what ought to be done. Perhaps this is why Rawls puts his main
emphasis on policies that compensate for inequality (rather than working on inequality directly) in his suggestions for how to implement the fair value guarantee. In any case, the fair value argument is an important one for a public values philosophy. For to carry out
the public values vision, we must have a political process that is free of the distorting inequalities caused by private power. The general character of Rawls's discussion suggests just how far our current political process is from ensuring the fair value of the political
liberties, and thus just how much of a critical perspective a public 126 Stephen M. Griffin values philosophy must have. A recent careful study of U.S. politics produced this sobering conclusion: The power shift that produced the fundamental policy realignment of the
past decade did not result from a conservative or Republican realignment of the voters; nor did it produce such a realignment after the tax and spending legislation of 1981 was enacted. Rather, these policy changes have grown out of pervasive distortions in this
country's democratic political process. These distortions have created a system of political decisionmaking in which fundamental issues . . . are resolved by an increasingly unrepresentative economic elite.33 Rawls's theory may be described in many ways, but one
inappropriate description is that it is a defense of the status quo. It is quite clearly a powerful critique of our political system, a critique all the more compelling because its theoretical base is firmly within the domain of liberalism.34 JUSTIFYING JUDICIAL REVIEW In
designing just institutions for a Rawlsian constitutional system, the fundamental principle to bear in mind is the guarantee of equal, basic rights to all. All considerations of constitutional and political design are subordinate to this principle. The general objective is to
establish a governmental system that will preserve the most extensive system of basic rights possible and lead to just legislation. To do this, we try insofar as possible to reproduce the fairness of the perspective of the original position within the constitutional
system. As just discussed, this implies strong measures to keep the legislative-political process free from the influence of concentrations of private power. As we have already seen, Rawls thinks it plausible that the traditional mechanisms of constitutionalism can be
justified as desirable elements of a just constitution. Note, however, the nature of this justification. As prima facie restrictions on the equal political liberties, all of the devices of constitutionalism (a written constitution, bicameral legislature, separation of powers, a bill
of rights, judicial review) are equally suspect. All must be justified on the ground that the restrictions they entail provide a greater degree of protection to the other liberties than would be available under a system of bare majority rule. Majority rule as such has no

If liberties are not guaranteed

special place. It is dependent for its justification on the fundamental importance of the political liberties. those , then the conditions of background political justice are not met, and the
justness of any legislation enacted is in severe doubt So judicial review is justifiable by the majority . 35 for Rawls if it ensures a more

This
extensive system of rights. But can we be more specific than this? We must bear in mind that, at best, Rawls's theory can only provide us with a general justification for judicial review. means a justification for a practice that allows the
judicial branch of government to nullify acts of legislation . A Public Values Philosophy of the Constitution 127 Rawls's theory does not provide us with a basis for saying whether the
judiciary should be elected, how it should construe the constitution, whether a special vote of the legislature could override certain judicial decisions, and so on. These are matters that lie beyond the theory of justice, matters of practical constitutional design. We can
say that, in comparison to the legislature, it is easier for the judiciary to mirror the fair representation of persons achieved by the original position. This is the ideal we are trying to achieve in designing the constitutional system. Striving for this ideal in the legislative
process requires a complex system of restraints and compensatory devices. By contrast, the nature of constitutional adjudication is such that formally, persons are already equal. As Lawrence Sager has said of this process: "It is irrelevant that a claimant is despised
or revered, or even that his is a claim shared by many or held in solitude."36 Judges are commonly said to have a duty to act fairly, impartially, objectively, and to exercise their sense of justice wisely. This perspective is precisely the one persons adopt in the

we have strong grounds for saying that judicial review

original position. If this perspective is already at least partially built into the institution of the judiciary, then is compatible with

stands on as firm a footing as the power of the legislature to enact legislation. Of course, the
Rawls's theory and

courts cannot play the same role as the legislature The courts cannot enact legislation or in guaranteeing the system of rights.

act on their own to create cases. no branch of government has a monopoly Further, Rawls makes it clear that on constitutional interpretation: In a
democratic society, then, it is recognized that each citizen is responsible for his interpretation of the principles of justice and for his conduct in the light of them. There can be no legal or socially approved rendering of these principles that we are always morally

not even
bound to accept, when it is given by a supreme court or legislature the court, puts forward
. Indeed each constitutional agency, the legislature, the executive, and

its interpretation Although the court may have the last say in settling any particular
of the constitution and the political ideals that inform it.

case, it is not immune from powerful political influences that may force a revision of its reading of the constitution. The court presents its doctrine by reason and argument; its conception of the constitution must, if it is to endure, persuade the

major part of the citizens of its soundness. The final court of appeal is not the court, nor the executive[,) [n)or the legislature , but the electorate as a whole.37

The courts vote Neg—They can only construct and interpret, NOT “enact”.
Hanna 12 – Justice of the Supreme Court of New Mexico
Opinion by J. Hanna, Supreme Court of New Mexico, Terr. of N.M. v. Davenport, 17 N.M. 214, 1912

Penal statutes are to be strictly construed and the courts all uniformly so hold. It is true, in some of the
states, this rule has been abrogated by statute, but in New Mexico we have no statute authorizing us to
depart from the strict rule of the common law in this respect. Hence we must give to the statute now under
consideration a strict construction, according to its letter, and nothing must be regarded as being included
within it, that is not both within the letter and spirit of the statute. "And where a statute of this kind contains
such an ambiguity as to leave reasonable doubt of its meaning, where it admits of two constructions, that
which operates in favor of life or liberty is to be preferred." Lewis' Sutherland Statutory Construction, 2nd
ed. sec. 520. The above statute is peculiarly [****6] worded and from our research we have been unable
to find a similar statute in any other state. Its meaning and intent are not clear and it is very ambiguous.
The Legislature of New Mexico [*218] should enact a statute upon Sunday observance that would
plainly express the prohibited acts, so that the people would be able to know, without construction by the
courts, what it was intended to prohibit. Courts cannot enact laws and are limited simply to their
construction and interpretation , and under well defined rules.
Reject AFF ev that conflates the two—It deals with the effects of an enactment—
But is NOT an ‘enactment’ itself.
Bennion 9 – Lecturer in Law at Oxford
F. A. R. Bennion, former Parliamentary Counsel, barrister, and Chief Executive of the Royal Institution of
Chartered Surveyors, Basic concepts I: common law statutes; the enactment; legal meaning; factual
outline and legal thrust; implied ancillary rules, printed 2009,
DOI:10.1093/acprof:oso/9780199564101.003.0002,
https://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199564101.001.0001/acprof-
9780199564101-chapter-2

This chapter explains the concept common law statutes, stressing that the laws governing common law
countries are now mostly enactments of a democratic parliament , mediated by common law rules of
interpretation . The basic unit of legislation is the enactment , consisting of a distinct proposition of
law . It needs an informed construction , which is explained. Legislation is what the legislator says it
is ; while the legal meaning of legislation , that is the one corresponding to the legislator's intention, is
what the court says it is . The chapter explains in detail the importance of the legal meaning . The
usual effect of an enactment is that, when the facts fall within an indicated area called the factual outline,
specified consequences called the legal thrust ensue. Elements in the legal thrust may be left
unexpressed by the drafter. These implied ancillary rules are to be treated as imported.

That distinction is PREDICTABLE, and key to both Neg ground and education—It
rests at the core of our Constitutional system.
Fowler 16 – Attorney
David Fowler, After Obergefell, Can Courts Rewrite Laws?, 2016,
https://www.wordfoundations.com/2016/10/24/after-obergefell-can-courts-rewrite-laws/

The Founders of the United States of America designed a balanced system of government that sets the
stage for limiting the power of each of its three major divisions, or branches. We call this a system of
checks and balances. It is a system that rests on the principle of the separation of powers.
According to this model , courts cannot enact or rewrite laws ; they can only interpret them or rule
them unconstitutional . Only legislators—lawmakers—can write laws.
 AT: Perm Do Both
1.The Perm eviscerates the net benefit—It has Congress pass an authorizing
statute. The ENTIRE net benefit is that unilateral judicial decisions without a
statute are good!
Otherwise, it severs legislation. Legitimate perms must include the entire topical
plan. Severance is a VI, because it dejustifies the plan and resolution, and makes
the AFF a moving target which is the death knell of clash and NEG offense.
2.The CP alone has the Court decide that a Constitutional violation has occurred
and provide a remedy WITHOUT Congress saying that’s OK
That’s key to all our impacts—It’s the issue at the heart of Bivens
Bandes 95 – Professor of Law, DePaul University
Susan Bandes, Professor of Law, DePaul University, ARTICLE: REINVENTING BIVENS: THE SELF-
EXECUTING CONSTITUTION, 68 S. Cal. L. Rev. 289, 1995, Lexis

THE CONSTITUTION IS JUDICIALLY ENFORCEABLE

Should the Constitution be enforceable without congressional authorization? If Congress neglects
to provide a remedy for victims of illegal searches by federal agents, or it decides not to permit suit by
military officers whom the government used without their knowledge for drug experimentation, or it
inadequately compensates people unconstitutionally stricken from the welfare rolls, should the courts
have the authority to remedy the constitutional wrongs , though the only statutory basis for doing so
is the general federal question statute?
The question is intriguing in part because of its inconsistent treatment depending on both the historical
time and the type of relief at issue. The federal question statute, without more, has always been
considered sufficient authority for traditional equitable relief against government officials. In the early
twentieth century, when section 1983 was essentially dormant, courts also awarded damages in various
constitutional cases without statutory authorization. Yet the current understanding is that section 1983
or similar specific statutory authorization is needed to provide a cause of action and a source of
remedies for constitutional violations under color of state law. Section 1983 does serve that purpose
(although not against federal officials), but why is it needed?
In contradiction to this approach stands the Bivens case , in which the Court inferred from the
Constitution itself , with only the federal question statute for congressional authorization, a cause of
action and damage relief against federal officials who violate the Fourth Amendment. The insight at the
heart of Bivens is that the judiciary has a duty to enforce the Constitution. To discharge this duty ,
the Court must ensure that each individual before it receives an adequate remedy 6Link to the text of
the note for the violation of constitutional rights. If the remedy is not forthcoming from the political
branches, the Court must provide it.
Thus stated, the principle sounds elemental. Yet, the fact that the Court did not decide Bivens until the
early 1970s reflects the controversial nature of the case. Bivens itself stands for something less than
adequate remediation for every constitutional violation suffered by a federal plaintiff; and even its
compromised guarantee of remediation has been rapidly eroded . Less than twenty-five years later, in
the [*294] wake of cases like United States v. Stanley 7Link to the text of the note and Schweiker v.
Chilicky, 8Link to the text of the note there is little left of the Bivens principle .
In this part, I will argue that the ultimate responsibility to enforce the Constitution must lie with the
courts . Where Congress has failed to provide adequate remedies, or any remedies at all, against
unconstitutional actions by the political branches, the courts must step in and ensure that such
remedies exist . In short, the argument is that the separation of powers principle demands judicial
enforcement .
The Bivens cases, on their most specific level, are about the judicial power to infer a cause of action
and a damage remedy from the Constitution . However, I do not intend to confine my argument to the
need for damages. The aspirational reading of Bivens for which I argue supports a broader principle :
the judicial power to award an adequate remedy for constitutional wrongs . Indeed, in many cases
damages are not the most appropriate or effective remedy; declaratory or injunctive relief is preferable.
9Link to the text of the note In part the focus on damages is a result of the fact that the judicial power to
grant injunctive relief is well accepted, whereas the power to award damages is controversial. Ideally,
once parties establish the cause of action, it will be a court's province to craft the proper remedy.
As I will detail shortly, the separation of powers challenge to Bivens remedies proceeds on two major
fronts: first , judicial creation of remedies is an illegitimate exercise of power which more
appropriately belongs to the legislative branch ; and second , apart from questions of power, the
courts are simply less competent or otherwise less suited to the remedial function. I will address each
argument in turn, with the goal of demonstrating that the separation of powers principles upon which the
Bivens critics seek to rely instead support the need for the Bivens remedy. Before doing so, I review the
story thus far.

The precedent turns on that question. The Perm sides with the Bivens dissenters
Newman 6 – deputy general counsel for the DOD legal counsel
Ryan D. Newman, nominee for General Counsel of the Army, American lawyer and former United States
Army Captain, former acting assistant attorney general for the Justice Department's Office of Legal
Policy, Note: From Bivens to Malesko and Beyond: Implied Constitutional Remedies and the Separation
of Powers, 85 Tex. L. Rev. 471, 2006

At first glance, this principle of institutional deference would not seem likely to incite much disagreement,
but a closer examination reveals considerable tension between this pragmatic formulation of separated
powers and the formalist approach embraced by the Bivens dissenters. From the perspective of purists,
issues relating to deference are irrelevant because all that ultimately matters is whether a given branch is
properly exercising the power assigned to it. 189Link to the text of the note Thus, the original dissenters
attacked Bivens as an exercise of judicial lawmaking - that is, courts exercising legislative powers that the
Constitution assigned to Congress. 190Link to the text of the note The deference principle, however,
more closely resembles Justice Powell's pragmatic approach in Davis, where he opposed an extension of
Bivens, not for the simple reason that it was judicial lawmaking, but because it did not afford sufficient
respect to the prerogatives of Congress under the circumstances. 191Link to the text of the note
[*502] To fully understand why the distinction between the two approaches is significant requires an
examination of the practical difficulties inherent in a formalist separation of powers model. From the
perspective of its dissenters, Bivens turned on the basic question of whether the Court had the
power to imply a right of action for damages directly under the Constitution without congressional
authorization . 192Link to the text of the note But, reducing the separation of powers inquiry to this single
question necessarily raises two significant problems.
First, the inquiry fails to account for the definitional ambiguity in characterizing particular exercises of
power as either legislative or judicial in nature. 193Link to the text of the note After all, not all assertions of
power can be neatly cabined into one category or the other. 194Link to the text of the note This was
certainly the case in Bivens. On one hand, Justice Black pointed to § 1983 as evidence that creating a
cause of action was a legislative function belonging to Congress. 195Link to the text of the note On the
other hand, Justice Harlan pointed to the long-standing equitable powers of courts 196Link to the text of
the note and their practice of implying causes of action from statutes 197Link to the text of the note as
evidence that crafting remedies was a judicial function. To the extent that the power to create
remedies takes on both a legislative and judicial character, a formalist approach to the separation of
powers is untenable at worst and unhelpful at best.
Second, the inquiry fails to account for the possibility that otherwise valid exercises of power can
nevertheless violate separation of powers principles. A formalist approach provides no solution to the
problem that independent assertions of putatively valid power by one branch can so constrain the
autonomy of the others as to raise separation of powers concerns. In Bivens, for instance, the Court
undoubtedly infringed upon the independence of Congress by creating a constitutional damages remedy
to which Congress was forced either to acquiesce or to reverse by legislation. In any event, Congress had
to make a choice it would not have otherwise had to make but for the Court's action. The strict formalist
approach advocated by the Bivens dissenters would hardly have resolved this problem. By
categorically bar ring the Court from implying a damages remedy, the dissenters would have
constrained the Court's independence to decide cases and controversies properly before it. In effect, the
dissenters would only have shifted the separation of powers problem from Congress to the courts. Thus,
contrary to the conventional view that formal separation preserves autonomy, it actually does little to
prevent interference between the branches, especially when more than one branch could feasibly
exercise the disputed power. In [*503] fact, formal separation might exacerbate the problem by allowing
one branch to exercise its otherwise valid powers in such a way as to excessively constrain the
independence and autonomy of another branch, thereby contravening separation of powers norms.
198Link to the text of the note

The key question is a remedy without a statute on the books—CP doubles down
on the Court’s current approach
LAT Editorial Board, 20
Los Angeles Times Editorial Board, An affront to rule of law, 3 March 2020, South Bend Tribune (Indiana)

In an affront to common decency and the rule of law, the Supreme Court last week shut the
courthouse door to the family of a 15-year-old Mexican boy killed in Mexico by a Border Patrol officer
who shot at him from the other side of the U.S.-Mexico border.
But the 5-4 decision by the court's conservative majority is more than just a denial of due process for one
aggrieved family. It's the latest sign that conservative justices seek to make it hard, if not impossible, for
victims of abuse by law enforcement officers to have their day in court.
In 2010, Sergio Adrian Hernandez was with some friends in the concrete culvert between El Paso, Texas,
and Ciudad Juarez, Mexico. According to lawyers for Hernandez's family, the boys were playing a game
that involved running across the culvert, touching a fence on the U.S. side and then running back to the
Mexican side. After Hernandez ran back across the culvert onto Mexican soil, Border Patrol Agent Jesus
Mesa Jr. fired two shots at the boy, one of which killed him. Mesa maintained that the boys were
attempting to illegally cross the border and that they had pelted him with rocks.
The facts might have been sorted out if Hernandez's parents had been allowed to pursue their lawsuit for
damages against Mesa in a so-called Bivens action, named after Bivens vs. Six Unknown Narcotics
Agents, a 1971 decision in which the court held that someone claiming to be the victim of an illegal arrest
and search could sue the arresting officers for violating the 4th Amendment. The court later permitted
Bivens-style lawsuits in two other situations: a claim by a former congressional staffer that she was the
victim of sex discrimination and an 8th Amendment claim that a federal prisoner had been denied
adequate medical care. The court allowed such lawsuits even though they weren't authorized by an
act of Congress.
Those decisions were correct . Constitutional rights don't mean much if there isn't a remedy
available when they are violated. And it's the role of federal courts to protect those rights.
Yet the court has been undermining that principle, and it did so again on Tuesday. It held that the
Hernandez lawsuit couldn't proceed. Writing for the majority, Justice Samuel A. Alito Jr. suggested that
the "new context" in which the claim was made - a cross-border shooting - touched on matters of foreign
policy best left to the executive branch in the absence of a federal law specifically authorizing such
suits . The court made a similar argument in 2017 when it ruled that Arab and South Asian men detained
after the Sept. 11, 2001, terrorist attacks couldn't sue high-ranking federal officials.
Justices Clarence Thomas and Neil M. Gorsuch also suggested in a separate concurring opinion that
Bivens should be overruled outright. But even if the precedent stays on the books , it's sadly clear that
conservative justices are determined to hollow it out . The family of Sergio Hernandez won't be the only
victims of that cramped and callous approach to enforcing constitutional rights.

Key to the net benefit—Perm de facto extinguishes Bivens

Simonova 6/12
Masha Simonova, JD-Harvard Law School, has worked at two district attorney offices, the U.S. District
Court for the Southern District of New York, a cyber-security consulting firm, and a private law firm,
Executive Editor for the National Security Journal and Supervising Editor for the Journal on Legislation,
Using Qui Tam Statutes to Check Unconstitutional Exercises of Executive Power, 12 June 2020,
https://www.lawfareblog.com/using-qui-tam-statutes-check-unconstitutional-exercises-executive-power

Now, in Hernandez, the Supreme Court held that Hernández’s parents’ claims for damages under the
Fourth and Fifth Amendments were not cognizable under Bivens and its progeny. Justice Samuel Alito,
writing for the majority, emphasized that the court would require a “clear er manifestation of
congressional intent ” to recognize a damages remedy when the constitutional text does not explicitly
provide for one. The decision in Hernandez signals a significant curtailment of the availability of
Bivens damages , to the point where Bivens may be all but extinguished as an option. Justice
Clarence Thomas stated as much in his concurrence, arguing that “the time has come to consider
discarding the Bivens doctrine altogether.” Justice Ruth Bader Ginsburg dissented, arguing that there was
“no good reason why Hernández’s parents should face a closed courtroom door.”

3.Independent judicial action is key to separation of powers—And specifically,

judicial review of executive Constitutional violations where statutes don’t exist
--The Perm only doubles down on current precedent—Establishes a statutory cause of action and has the
Court enforce it. The counterplan, in contrast, has the Court act on its own to remedy Constitutional
violations.
Kass 10 – Chair of the Committee on International Human Rights for ABCNY
Stephen L. Kass, Chair, Committee on International Human Rights, Association of the Bar of the City of
New York, New York, NY, and Counsel of Record, Amicus Brief, ARAR v. ASHCROFT, 2010 U.S. S. Ct.
Briefs LEXIS 1196, On Petition for Writ of Certiorari To The United States Court of Appeals For the
Second Circuit, Lexis

This case is of compelling interest to the Association, to the American people and to our nation's
commitment to the rule of law. It is essential [*2] to preserve the ability of U.S. federal courts to remedy
constitutional violations of the most brutal kind -- state-orchestrated secret detention and torture of
individuals carried out in a way designed to circumvent judicial review and accountability. Such
constitutional violations must have remedies , and those remedies depend , under our system of law,
on an independent judiciary providing meaningful review of executive-branch action . The decision of
the U.S. Court of Appeals for the Second Circuit is a roadmap for the executive branch to circumvent that
review even when carrying out torture-based inquisitions. Because such conduct is not compatible with
American constitutional principles, it may not be exempted from judicial scrutiny. The Association
therefore submits this brief, as a Friend of the Court, in support of the Petition of Maher Arar requesting
that this Court grant certiorari to review the decision of the U.S. Court of Appeals for the Second Circuit in
Arar v. Ashcroft, 585 F. 3d 559 (2d Cir. 2009). SUMMARY OF ARGUMENT In this case, the executive
branch violated an individual's constitutional rights and usurped the role of the judiciary by [*5] having
Maher Arar ("Arar") shipped overseas for torture based on discredited information collected by executive
officials prior to Arar's arrest. To ensure there would be no review of the basis for his detention and the
risk that he would be tortured, those executive officials effectively displaced the judiciary and actively
denied Arar access to the courts prior to his delivery to Syria's torturers. As the case now stands , no
one from the executive branch will be held accountable for the alleged conspiracy to torture Arar.
Instead, the Second Circuit has set out a roadmap for the [*3] executive to continue conspiring to torture
in a consequence-free environment. The test for judicial review created by the Second Circuit in this case
is an abdication of the federal courts' constitutional role as an independent and co-equal branch of
government that is required to remedy violations of constitutional rights. Under the Second Circuit's
novel test, executive officials can arrange for torture without consequence, as long as an attorney from
the executive branch eventually drafts a brief mentioning that national security was at stake. The Second
Circuit's decision undermines judicial [*6] independence by ensuring that there will be no judicial
review of constitutional violations in cases involving national security. This Court should grant the Petition
for Certiorari and, on review, reject the Second Circuit's test as inconsistent with the role of the law in our
nation and the role of federal courts in enforcing that law. ARGUMENT I. REVIEW SHOULD BE
GRANTED BECAUSE THE SECOND CIRCUIT'S DECISION UNDERMINES ESSENTIAL
CONSTITUTIONAL PROTECTION Our Constitution applies "to our rulers and people, equally in war and
in peace." Ex parte Milligan, 71 U.S. (4 Wall.) 2, 12-21 (1866). The defendant executive officers allegedly
violated the Constitution, and the judicial branch must now determine whether those officers are
responsible and, if so, provide a remedy. The failure of the Second Circuit of the Court of Appeals to hold
the defendants accountable for the alleged constitutional violations in this case, instead deferring to the
executive branch's broad assertions of national [*4] security, erodes our constitutional guarantees for
citizens and all who come into contact with U.S. government officials. "The government of the United
[*7] States has been emphatically termed a government of laws, and not of men . It will certainly
cease to deserve this high appellation , if the laws furnish no remedy for the violation of a vested
legal right." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). A. The Second Circuit's Decision
Allows Executive Action Depriving Arar of Constitutional Rights to Go Unchecked The purpose of the
remedy established in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403
U.S. 388 (1971), "is to deter individual federal officers from committing constitutional violations."
Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001). The Second Circuit decision in this case
held that the actions taken by the defendants were in a "new context" of Bivens claims and declined to
recognize a cause of action. 2Link to the text of the note There is nothing new about the context of the
defendants' actions. The Magna Carta limited the authority of kings so that no man be would be
"imprisoned… or banished" without judicial review. Art. 39, in Sources of Our Liberties 17 (R. Perry & J.
Cooper eds. 1959). Alexander Hamilton recognized the "confinement [*8] of the person, by secretly
hurrying him to jail, where his sufferings are unknown or forgotten," as one of the "favorite and most
formidable instruments of tyrants." Federalist No. 84, p.474 (Isaac Kramnick ed. 1987). In this case, the
defendants blocked Arar's access to judicial review before secretly hurrying him off to be tortured in a
Syrian jail. These actions are such an [*5] established method of tyranny that they were banned
within the Constitution and have been recognized as a basis for Bivens causes of action. U.S. Const.
amend. V (guaranteeing right to a notice of charges and an opportunity to be heard); Art. 1, § 9, cl. 2
(guaranteeing right to judicial review of executive detention); Arar v. Ashcroft (Parker dissent), 585 F.3d at
597-98 (listing cases recognizing Bivens causes of action for such violations). The Second Circuit fails to
recognize the defendants' constitutional violations, instead [*9] proclaiming a single "new context"
-- the "delivery of a non-citizen to a foreign country for torture" 3Link to the text of the note --and holds
that the courts must wait for Congress to determine whether a victim of such constitutional
violations should have a remedy . 4Link to the text of the note Under the Second Circuit's rationale, "a
new context" could as easily be coined involving the delivery of a citizen to a foreign country for torture
and, as long as the executive officials could successfully employ force and deception to block the citizen
from filing a habeas corpus petition, no cause of action would lie against the executive officials that chose
to participate in those actions. The Second Circuit's rationale leaves executive officials unconstrained by
either the Constitution or statutes and unchecked by the courts . Failure of an independent
judiciary to check the executive leads to gross violations of constitutional rights , particularly during
times of [*10] perceived crisis. See Korematsu v. United States, 323 U.S. 214 (1944) (Supreme Court
defers to executive assertions of power and allows Japanese-American [*6] internment). Recent
executive efforts to evade judicial review of gross constitutional violations are well documented. See, e.g.,
Senate Armed Services Committee Report on the Treatment of Detainees in U.S. Custody (detailing
executive's broad assertions of power facilitating torture). 5Link to the text of the note We rely on the
courts to hold executive officials accountable for constitutional violations, even in times of perceived
crisis. "In times of distress the shield of military necessity and national security must not be used to
protect governmental actions from close scrutiny and accountability." Korematsu v. United States, 484 F.
Supp. 1406 (N.D. Cal. 1984) (coram nobis case). [*11] Longstanding authority recognizes the role of the
courts as the appropriate, indeed indispensable, check on the executive. "The Framers regarded the
checks and balances that they had built into the tripartite Federal Government as a self-executing
safeguard against the encroachment or aggrandizement of one branch at the expense of the other."
Buckley v. Valeo, 424 U.S. 1, 122 (1976);see also Northern Pipeline Constr. Co. v. Marathon Pipe Line
Co., 458 U.S. 50 (1982) (quoting Federalist Papers); Retired Federal Judges' Amicus Brief. As explained
below in Point II, the test set out by the Second Circuit for recognizing a cause of action under Bivens
allows the executive to decide when the judicial branch will have the opportunity to check the executive.
This test, vesting the executive with the unilateral authority to determine when a claim may stand, is
contrary to the constitutional [*7] role of an independent judiciary. When Bivens claims are pleaded,
executive officers are the defendants, not disinterested magistrates. The Constitution does not anticipate
the judiciary's ceding its powers to the executive. United States v. Nixon, 418 U.S. 683, 704 (1974) [*12]
(judicial power cannot be shared with the executive). B. The Absence of a Statutory Remedy Favors
Recognition of a Judicial Remedy for Executive Constitutional Violations Despite the Second Circuit's
willingness to permit the defendants to avoid accountability, the Constitution requires a judicial forum
when a constitutional right is at stake. Crowell v. Benson, 285 U.S. 22 (1934) (upholding the legality of an
administrative court in part because the statute at issue did not prohibit constitutional claims from being
brought in Article III courts). Here, Arar alleged that executive officials detained him while changing planes
in New York City, denied him access to his attorney and the courts, and conspired with third parties to
have him interrogated under torture in a country known by the government to torture detainees. 6Link to
the text of the note Rather than recognize a cause of action [*8] for these constitutional violations, the
Second Circuit denied Arar a judicial forum, holding that the court must wait for Congress to provide a
legislative remedy for these constitutional violations. 7Link to the text of the note [*13] The Second
Circuit misconstrues the role of the courts in remedying constitutional violations . The judiciary's
constitutional role is protecting against constitutional violations perpetrated by the executive and
providing a remedy under Bivens when there is no statutory remedy. Bush v. Lucas, 462 U.S. 367
(1983) (declining to recognize a Bivens claim where legislative remedial scheme already provided a
remedy). The Second Circuit turns this obligation on its head by citing the absence of a legislative
remedial scheme as a reason to dismiss Arar's claim and allow constitutional violations to continue
without remedy. 8Link to the text of the note See, contra, Bivens , 403 U.S. at 397 ( allowing damages
where there is no "explicit congressional declaration " that plaintiffs must pursue another remedy
"equally effective in the view of Congress"); Ex parte Young, 209 U.S. 123 (1908) (in the absence of
statutory authority, the court may issue relief for constitutional violations). In doing so, the Second
Circuit has [*14] abdicated its duty to protect constitutional guarantees. See Ex parte Quirin, 317 U.S. 1,
19 (1942) (it is the duty of the courts to preserve constitutional safeguards). Although Congress can
displace the Bivens remedy by enacting an alternative statutory remedy, [*9] legislative inaction
supports, rather than undercuts , recognition of a Bivens remedy. 9Link to the text of the note [*15] C.
The Executive's Actions to Deprive a Detainee of Access to the Courts Are Constitutional Violations That
Require a Remedy A basic principle of our society is the right to be heard before being condemned. Joint
Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring). The executive's
use of deception and force to deny Arar access to court violated the Fifth Amendment to the U.S.
Constitution and willfully undermined separation of powers. See Boumediene v. Bush, 553 U.S. , 128 S.
Ct. 2229 (2008) (only the judiciary can decide where habeas corpus applies). In other cases where the
executive sought to act unilaterally, it claimed the constitutional power to do so. See, e.g., Hamdi v.
Rumsfeld, 542 U.S. 507 (2004) (asserting war [*10] powers); United States v. Nixon, 418 U.S. 683 (1974)
(asserting executive privilege); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (asserting
inherent authority). In the present case, the executive exercised a de facto power without even claiming
support from the Constitution. By keeping Arar in a [*16] maximum security holding cell, interrogating him
without notifying his attorney, 10Link to the text of the note falsely telling him that his attorney had been
informed of the interrogation and chose not to attend, 11Link to the text of the note serving him with an
essentially blank order of removal form to satisfy a five-day notice requirement, 12Link to the text of the
note and then filling in the blanks en route to his transfer to Syria 13Link to the text of the note to ensure
that no habeas petition could be timely filed, 14Link to the text of the note the executive repeatedly
resorted to unlawful and unconstitutional deception and force to deny Arar access to court. Denying
federal court review of an administratively issued order of removal is illegal. INS v. St. Cyr, 533 U.S. 289,
297, 314 (2001) (construing a statute not to bar an alien's habeas petition so as to avoid the serious
constitutional questions raised by denying a forum for habeas review); see also Bounds v. Smith, 430
U.S. 817 (1977) (denial of access to courts is unconstitutional); Ex parte Hull, 312 U.S. 546, 549 (1941)
("the state and its officers may not abridge or impair petitioner's right to apply to a federal court for a writ
of habeas corpus"). [*17] Where, as here, the past acts of government officials make it impossible for a
person to assert legal rights in court, damages are the appropriate [*18] remedy. Christopher v. Harbury,
536 U.S. 403 (2002). The two-part test of Harbury requires (1) the existence of a non-frivolous legal claim
that had been frustrated by the defendants' behavior and (2) the impossibility of obtaining adequate
compensation by pursuing the underlying legal claim in a contemporaneous judicial forum. 536 U.S. at
415-16. Judicial review of either the removal order (which included the knowingly false determination that
Arar was not likely to be tortured in Syria) or a habeas corpus petition would have shielded Arar from
being delivered by defendants to Syria's torturers. Undoubtedly for that reason, the defendants actively
denied Arar access to such legal relief. Arar satisfies the Harbury two-part test and, therefore, damages
are the appropriate remedy. [*12] II. REVIEW SHOULD BE GRANTED BECAUSE THE BIVENS
"SPECIAL FACTORS" ANALYSIS ADOPTED BY THE SECOND CIRCUIT ABANDONS THE COURTS'
ROLE AS THE GUARDIAN AGAINST UNCONSTITUTIONAL EXECUTIVE CONDUCT The Bivens
"special factors" analysis applied by the Second Circuit permits the executive to determine when
executive constitutional violations cannot [*19] be redressed. Under the Second Circuit's test, if a judge
would "pause even to consider" the appropriateness of a Bivens cause of action, no damages claim will
be recognized. 15Link to the text of the note The judges "do not take account of countervailing factors."
16Link to the text of the note No affirmative factor favoring a Bivens remedy raised by the plaintiff will be
considered, and the defendant's mere mention of a so-called "special factor" precludes the cause of
action. Such "analysis" is not judicial review but rather supine obedience to the executive and an
evisceration of judicial independence . This purported "analysis" provides a perverse incentive for
the executive branch to assert "special factors" when its actions are most culpable and would not
otherwise withstand scrutiny from an independent judiciary. This case is a prime example . The
Canadian Report on Arar makes clear that the "national security" concerns raised by the executive were
either [*20] wrong or exaggerated. The Canadian information initially provided to the INS on Arar was
"either completely inaccurate or, at a minimum, tended to overstate his importance" in an ongoing
Canadian investigation. 17Link to the text of the note The error was [*13] immediately brought to the
attention of the INS. A fax sent to "American authorities" on October 4, 2002, while Arar was being held
by INS, said that Canada was "unable to indicate that Mr. Arar had links to al-Qaeda." 18Link to the text
of the note Telephone conversations between intelligence officers in Canada and the INS, while Arar was
still in U.S. custody, further established that Canada did not have information linking Arar to al-Qaeda.
19Link to the text of the note That the INS chose to disregard that information while arranging for Arar's
torture would, under any judicial analysis, be weighed against the executive's bald assertions that national
security was at stake. Instead, the Second Circuit has invented a test that invites the executive to assert,
as it did here, "national security" issues simply to avoid judicial review of actions that could not
otherwise withstand any measure of scrutiny from an independent judiciary. [*21] A. Denial of Judicial
Review in This Case Violates Due Process Under the Constitution Blocking Arar's access to court to
ensure that he could not have his detention reviewed violated the Constitution in at least three ways. First,
access to court is a constitutional guarantee. See Tennessee v. Lane, 541 U.S. 509 (1988). In this case,
the defendants' use of deception and force to block access to court was a constitutional violation. Second,
the Constitution requires a hearing at a meaningful time and in a meaningful manner. Boddie v.
Connecticut, 401 U.S. 371 (1971). In this case, the administrative decisions that Arar was an inadmissible
alien and that he would not be tortured [*14] in Syria could have been reviewed by a court. By deceiving
his lawyer and serving Arar with a reviewable administrative decision while he was already in transit to
Syria, the defendants actively denied a hearing at a meaningful time. 20Link to the text of the note The
decision was never forwarded to Arar's attorney. 21Link to the text of the note Such acts are
unconstitutional [*22] and an affront to the independence of the judicial branch and to our entire
system of justice . Third, destruction of legal claims is a violation of due process. Logan v. Zimmerman
Brush Co., 455 U.S. 422 (1982) (negligent destruction of a legal claim is a violation of due process). Here,
the defendants' intentional destruction of Arar's legal claims for review of unconstitutional administrative
decisions, by blocking access to court by force and deception, violated constitutional due process
guarantees. See Webster v. Doe, 486 U.S. 592 (1988) (requiring judicial review of constitutional claims
associated with administrative decisions). The "special factors" analysis as applied by the Second Circuit
denies a remedy for these constitutional violations by denying review of Arar's claims. Recognition of
Arar's claims would not inhibit any lawful government actions and no contrary Congressional intent exists.
Indeed, U.S. statutes and [*23] court cases forbid the actions allegedly taken against Arar. 18 U.S.C. §
2441 (prohibiting torture for the purpose of obtaining information); 18 U.S.C. § 2340A(c) (prohibiting
conspiracy to torture abroad); 8 U.S.C. § 1231 (barring removal of any person to a country where he will
likely be tortured); 28 U.S.C. § 2241 (providing statutory authority to [*15] grant writ of habeas corpus);
see also Wilkie v. Robbins, 551 U.S. 537 (2007) (declining to recognize a Bivens claim that would inhibit
lawful executive acts). The need for the assertion of the rule of law here is acute and requires a Bivens
remedy to provide a check on executive violations of due process. B. The Bivens "Special Factors"
Analysis, as Applied by the Second Circuit, Subjects the Courts to Executive Manipulation and Vitiates
Meaningful Review of Constitutional Violations The Bivens "special factors" analysis applied by the
Second Circuit prevents the judiciary from implementing procedures, such as in camera review, that
address the executive's concerns while preserving the [*24] constitutional remedy. Open court
proceedings safeguard against attempts to use the courts as instruments of persecution; 22Link to the
text of the note this causes the Second Circuit to pause to consider whether to recognize a Bivens cause
of action where in camera review of secret documents may be required. In the Second Circuit's view, that
hesitation slams the court's door on those whose torture was arranged by the defendants and then
classified as "secret" by those same defendants. 23Link to the text of the note Requiring dismissal based
on "hesitation" creates a perverse incentive for reflexive decisions and prevents thoughtful evaluation and
development of the record at the district court level. Here, the Second Circuit denied a remedy for
constitutional violations because any decisions the district court might reach based on reviewing
documents in camera might lead some [*16] observers to assume a miscarriage of justice. The Second
Circuit has thus allowed a hypothetical perception of injustice to bar the doors of the court to a plaintiff,
thereby ensuring injustice. 24Link to the text of the note [*25] To date, no court has reviewed the alleged
state secrets that allegedly counsel hesitation in this case. The Canadian Report indicates that Canada
initially provided baseless information to U.S. officials about Arar 25Link to the text of the note but
subsequently corrected that information on multiple occasions while Arar was still in U.S. custody. 26Link
to the text of the note The FBI told the Canadians, the day after Arar was transferred to Syria, that they
had no information that would allow them to hold Arar. 27Link to the text of the note Despite this publicly
available evidence that [*17] national security [*26] concerns were wildly exaggerated, the defendants'
mere assertion of secrets and national security caused the Second Circuit to decline to recognize a cause
of action. By adopting a standard that requires dismissal of Bivens causes of action whenever the
executive has the foresight self-servingly to classify documents as secret and then assert national
security concerns in court, the Second Circuit has created a test that requires the least scrutiny of the
most serious allegations - those in which executive officials, such as the defendants here, detain and
arrange for the torture of their victims while blocking their access to the courts. [*27] The Second Circuit's
analysis also precludes meaningful review by first misconstruing Arar's complaint as a challenge to
"extraordinary rendition," thereby overlooking the constitutional violations that Arar actually alleges. The
court then dismisses the claim based not on analysis of the defendants' constitutional violations but rather
on whether issues raised by the defense "counsel hesitation" in recognizing a Bivens remedy. 28Link to
the text of the note The facts underlying Arar's "access to court" claim were readily available and publicly
known. There were no alternative legal remedies. In subsuming Arar's claim under the rubric of
"extraordinary rendition," the Second Circuit ignores the unconstitutional treatment to which Arar was
allegedly subjected as a prelude to his being forcibly sent to Syria, a government known for torture. Under
this decision, an executive officer concerned about [*28] being accused of a constitutional violation can
avoid accountability for past misconduct merely by committing additional constitutional violations and
having the victim shipped off to torturers in a foreign country. [*18] C. In Its Bivens "Special Factors"
Analysis, the Second Circuit Abandons Its Proper Role as a Guardian Against Unconstitutional Executive
Conduct The Second Circuit asserts that a Bivens cause of action is reserved for those times when it is
"easy to identify both the line between constitutional and unconstitutional conduct and the alternative
course which officers should have pursued." 29Link to the text of the note This standard is clearly met in
this case. The decision that torture is unconstitutional is easy and the alternatives to torture are obvious.
[*29] In support of its conclusion that the determinations as to constitutionality and as to alternative
conduct were difficult to identify, the Second Circuit rambles through a series of irrelevant choices (e.g.,
"should the officers have let Arar go on his way and board his flight to Montreal?") 30Link to the text of the
note to demonstrate that the defendants did not have a clear constitutional path forward. This bit of
rhetoric ignores the question at the heart of this case: Should the defendants have blocked Arar's access
to court while arranging for his torture in Syria? The Constitution provides a clear answer: torture or
complicity in torture is categorically forbidden by the Constitution, statutes, and treaties. See Chavez v.
Martinez, 538 U.S. 760, 773 (2003) ("Our views… do not mean that police torture or other abuse that
results in a confession is constitutionally permissible so long as the statements are not used at trial");
County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (due process bars executive officials from
employing their power as an "instrument of [*19] oppression" in a manner that "shocks the conscience of
the court"); Rochin v. California, 342 U.S. 165, 166 (1952) [*30] (due process requires the state to
observe "certain decencies of civilized conduct" and prohibits "methods too close to the rack and screw to
permit of constitutional differentiation"); Irvine v. California, 327 U.S. 128, 133 (1954) ("coercion, violence
or brutality to the person" which "shocks the conscience" violates due process); Williams v. United States,
341 U.S. 97, 101 (1951) ("[W]here police take matters in their own hands, seize victims, beat and pound
them until they confess, there cannot be the slightest doubt that the police have deprived the victim of a
right under the Constitution."). A constitutional path forward was available to the defendants and was
ignored: allowing Arar access to the courts and not torturing him. Instead, according to the complaint, the
defendants unconstitutionally and illegally conspired to torture Arar in a misguided effort to produce
intelligence on al-Qaeda. The role of an independent judiciary is not to empathize [*31] with imagined
difficult decisions made by such defendants but to protect victims against constitutional violations .
Our constitutional framework of government requiring a judicial check on such unconscionable
executive actions protects the rule of law only when such checks are exercised by an independent
judiciary .

Extinction
Kelman 89 – Professor of Law at DePaul
Barry Kelman, Professor, DePaul University College of Law; J.D. Yale, ARTICLE: JUDICIAL
ABDICATION OF MILITARY TORT ACCOUNTABILITY: BUT WHO IS TO GUARD THE GUARDS
THEMSELVES?, 1989 Duke L.J. 1597

In this era of thermonuclear weapons , America must uphold its historical commitment to be a
nation of law . Our strength grows from the resolve to subject military force to constitutional
authority . Especially in these times when weapons proliferation can lead to nuclear winter , when
weapons production can cause cancer, when soldiers die unnecessarily in the name of readiness: those
who control military force must be held accountable under law. As the Supreme Court recognized a
generation ago,
the Founders envisioned the army as a necessary institution, but one dangerous to liberty if not confined
within its essential bounds. Their fears were rooted in history . They knew that ancient republics had
been overthrown by their military leaders.. . . . . . . We cannot close our eyes to the fact that today the
peoples of many nations are ruled by the military. We should not break faith with this Nation's tradition of
keeping military power subservient to civilian authority, a tradition which we believe is firmly embodied in
the Constitution. 1Link to the text of the note
Our fears may be rooted in more recent history . During the decade of history's largest peacetime
military expansion (1979-1989), more than 17,000 service personnel were killed in training accidents.
2Link to the text of the note In the same period, virtually every facility in the nuclear bomb complex has
been revealed [*1598] to be contaminated with radioactive and poisonous materials; the clean-up costs
are projected to exceed $ 100 billion. 3Link to the text of the note Headlines of fatal B-1B bomber
crashes, 4Link to the text of the note the downing of an Iranian passenger plane, 5Link to the text of the
note the Navy's frequent accidents 6Link to the text of the note including the fatal crash of a fighter plane
into a Georgia apartment complex, 7Link to the text of the note remind Americans that a tragic price is
paid to support the military establishment. Other commentaries may distinguish between the specific
losses that might have been preventable and those which were the random consequence of what is
undeniably a dangerous military program. This Article can only repeat the questions of the parents of
those who have died: "Is the military accountable to anyone? Why is it allowed to keep making the same
mistakes? How many more lives must be lost to senseless accidents?" 8Link to the text of the note
This Article describes a judicial concession of the law's domain, ironically impelled by concerns for
"national security." In three recent controversies involving weapons testing, the judiciary has disallowed
tort accountability for serious and unwarranted injuries. In United States v. Stanley, 9Link to the text of the
note the Supreme Court ruled that an Army sergeant, unknowingly drugged with LSD by the Central
Intelligence Agency, could not pursue a claim for deprivation of his constitutional rights. In Allen v. United
States, 10Link to the text of the note civilian victims of atmospheric atomic testing were denied a right of
tort recovery against the government officials who managed and performed the tests. Finally, in Boyle v.
United Technologies, 11Link to the text of the note the Supreme Court ruled that private weapons
manufacturers enjoy immunity from product liability actions alleging design defects. A critical analysis of
these decisions reveals that the judiciary , notably the Rehnquist Court, has abdicated its
responsibility to review civil matters involving the military security establishment. 12Link to the text of
the note
[*1599] Standing at the vanguard of "national security" law, 13Link to the text of the note these three
decisions elevate the task of preparing for war to a level beyond legal [*1600] accountability. They
suggest that determinations of both the ends and the means of national security are inherently above the
law and hence unreviewable regardless of the legal rights transgressed by these determinations. This
conclusion signals a dangerous abdication of judicial responsibility. The very underpinnings of
constitutional governance are threatened by those who contend that the rule of law weakens the
execution of military policy. Their argument -- that because our adversaries are not restricted by our
Constitution, we should become more like our adversaries to secure ourselves -- cannot be sustained if
our tradition of adherence to the rule of law is to be maintained . To the contrary , the judiciary must
be willing to demand adherence to legal principles by assessing responsibility for weapons decisions.
This Article posits that judicial abdication in this field is not compelled and certainly is not desirable. The
legal system can provide a useful check against dangerous military action, more so than these three
opinions would suggest. The judiciary must rigorously scrutinize military decisions if our 18th century
dream of a nation founded in musket smoke is to remain recognizable in a millennium ushered in under
the mushroom cloud of thermonuclear holocaust .
History shows that serious consequences ensue when the judiciary defers excessively to military
authorities. Perhaps the most celebrated precedent for the deference to military discretion reflected in
these recent decisions is the Supreme Court's 1944 decision in Korematsu v. United [*1601] States.
14Link to the text of the note Korematsu involved the conviction of an American citizen of Japanese
descent for violating a wartime exclusion order against all persons of Japanese ancestry. That order,
issued after Japan's attack on Pearl Harbor, declared that "the successful prosecution of the war requires
every possible protection against espionage and against sabotage to national-defense material, national-
defense premises, and national-defense utilities." 15Link to the text of the note Justice Hugo Black's
opinion for the Court, upholding the exclusion order and Korematsu's conviction, stressed the hardships
occasioned by war and held that "the power to protect must be commensurate with the threatened
danger." 16Link to the text of the note
Justice Murphy's dissent from this shameful abdication of responsibility presaged the thesis of this Article:
In dealing with matters relating to the prosecution and progress of a war, we must accord great respect
and consideration to the judgments of the military authorities who are on the scene and who have full
knowledge of the military facts. The scope of their discretion must, as a matter of necessity and common
sense, be wide . And their judgments ought not to be overruled lightly by those whose training and
duties ill-equip them to deal intelligently with matters so vital to the physical security of the nation.
At the same time, however, it is essential that there be definite limits to military discretion, especially
where martial law has not been declared. Individuals must not be left impoverished of their constitutional
rights on a plea of military necessity that has neither substance nor support. Thus, like other claims
conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to
the judicial process of having its reasonableness determined and its conflicts with other interests
reconciled. "What are the allowable limits of military discretion, and whether or not they have been
overstepped in a particular case, are judicial questions."
The judicial test of whether the Government, on a plea of military necessity, can validly deprive an
individual of any of his constitutional rights is whether the deprivation is reasonably related to a
public danger that is so "immediate, imminent, and impending" as not to admit of delay and not to permit
the intervention of ordinary constitutional processes to alleviate the danger. 17Link to the text of the note
The three princip al decisions that this Article examines prove that the ju diciary in recent times has not sufficiently heeded Justice Murphy's warning. Indeed, the unquestioned deference to the military security establishment contained in these decisions stands as this generation's moral equivalent of Korematsu. As in the Korematsu case, the courts that reviewed [*1602] these weapons testing cases permitted gross injuries to go uncompensated in the face of the military security establishment's claim of "military necessity" as a defense. Yet, whereas Korematsu undeniably is a blot on American law, 18Lin k to the text of the note the three decisions discussed in this Article are not even "justified" by wartime crisis and involved physically greater injuries than those suffered by Japanese descendants incarcerated during World War II. Perhaps most important is that these weapons testin g decisions, like Korematsu, confer sensitive strategic value on highly questionable military activities and thus shroud patently dangerous conduct from legal challenge.
The issues that frame this Article are essential to the future of constitutional governance: (1) When, if ever, should military activity be subject to legal scrutiny? and (2) What is the authority of the judiciary to exercise jurisdiction over military decisions? 19Link to the text of the note Although this Article presents only three cases, which themselves address only the narrow issue of tort accountability for weapons testin g, the three cases chosen provide explicit demonstrations of how the scope of ju dicial review of military discretion has undergone radical contractio n. These cases portend a new and far-reaching doctrine that could replace legal protections with the caprice of sheer military might, justified only by infla ted assertions of "national security." Although this area uniq uely calls on the courts to decide controversies by reference to formal criteria and subject to the limits of reasonableness, the three cases discussed below reveal an abject judiciary unwilling to assert its proper role . Part I of this Article traces the case law that has considered claims
against the military and the proper scope of military review. 20Link to the text of the note It demonstrates [*1603] that the three weapons testing cases discussed herein are on the leading edge of a judicial trend toward conclusions of nonju sticiability on all matters remotely involving military security. Parts II, 21Link to the text of the note III, 22Lin k to the text of the note and IV 23Link to the text of the note discuss in separate detail United States v. Stanle y, Allen v. United States, and Boyle v. United Technologies. A brief conclu sion then develo ps the important distin ction between judicial deference and judicial abdication in the context of military security policy. I. DOCTRINAL BASES OF DEFERENCE TO THE MILITARY Either a civilian or a serviceman suffering injuries from military activities can bring a tort claim for damages against either a branch of government or a private party. The claim may allege a violation of constitutional rights or state statutory rights. 24Link to the text of the note In any event, the claim must overcome the defense of
sovereign immunity. 25Link to the text of the note In the absence of a statutory waiver of immunity, therefore, recovery of damages 26Link to the text of the note for the tortious actions of federal officials is limited to a suit again st the official in his or her in dividual capacity, 27Lin k to the text of the note or introductio n of a private bill in [*1604] Congress. 28Lin k to the text of the note The Federal Tort Claims Act 29Link to the text of the note (FTCA) is a statutory waiver of sovereign immunity that permits suits against the United States for injuries caused by "the neglig ent or wrongful act or omission of any employee of the Government while acting within the scope of his office or emplo yment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the pla ce where the act or omission occurred." 30Link to the text of the note This right of recovery is limited by thirteen exceptions, two of which limit cla ims arising out of military activities: (1) the discretionary functions exception, 31Link to
the text of the note and (2) the exception for activities incident to military service. 32Link to the text of the note Judicial application of these exceptions to the three weapons testin g controversies discussed herein forms the focus of this Article. A. The Discretionary Function Exception The basic purpose of the discretionary function exception is "to allow a government official the freedom to choose a course of conduct without the threat of governmental liability lurking in the background." 33Link to the text of the note However, this exception would categorically reinstate sovereign immunity unless there were express limits to the grant of discretion since most conscious acts involve some degree of choice. That dilemma has received considerable attention 34Link to the text of the note from which criteria of discretio n have been forged. As in terpreted, the exception focuses on whether the [*1605] decisionmaking process involves policy consideratio ns. Whether courts should recognize the government's discretionary function immunity must be decided in
each case by balancin g the government's need to function against the right of individuals to legal redress for their inju ries. At the core of the discretionary function exception is a recognition that regula tory decisions, such as promulgating rules and issuing licenses or permits, cannot give rise to a private cause of action without substantially interfering with the conduct of government. Furthermore, planning decisions that call for a balancing of fin ancial, political, economic, and social effects may not be subject to judicial revie w. Although the government's decision to undertake a particular course of conduct may be protected, however, executio n of that decision in a manner that deviates from properly authorized instructio ns can result in civil liability. 35Lin k to the text of the note Liability turns not on the government official's status (though that may be factually sig nificant) but on the nature and quality of the decision itself -- whether it included the type of regulatory or pla nning activity that is the essence of policy formation. Thus, in Peterson v. United
States, 36Link to the text of the note the court held that the discretionary function exception did not immunize the government from a farmer's claim of injuries from a B-52 bomber flying too lo w over his farm: The pla nning level of the Air Force train ing and evaluation missions, which would in clude the develo pment of the route for the mission at issue here, is protected within this discretionary function exception. Nevertheless, the discretionary function exceptio n does not protect the United States from liability for operational negligence in carrying out such a mission. The United States is not protected if the pilot operating the B-52 which flew over Peterson's farm was negligent in implementing the policy decisions made by Government officials. 37Link to the text of the note The discretio nary function exception thus should clarify the distinction between the formulatio n of policy by high-ranking officials and the routine implementation of policy by subordin ates. Only policy decisions should be exempt; where the alleged misconduct involves the negligent
acts of an agent, the discretionary function exceptio n does not prevent the imposition of liability on that official. 38Lin k to the text of the note [*1606] B. The Feres Exception A series of Supreme Court decisions begin ning with Feres v. United States 39Link to the text of the note has developed the exception for servicemen's injuries in curred in cident to military service. Tort immunity stems from the concern that suits by servicemen would threaten military discipline and empower the courts to interfere with the military's chain of command. 40Link to the text of the note The Feres doctrine is based on the need to preserve military discipline; to litigate cla ims involving the management of the military and the control of service personnel would impede the immedia te obedience to orders required in the military environment. 41Lin k to the text of the note Many questio ns have arisen under Feres concerning whether the mere status of the victim as a serviceman bars any and all recovery, 42Link to the text of the note or whether the immunity may apply to acts of
civilian agencie s of the government. Recently, the Supreme Court extended the scope of application for Feres suits against civilian agencie s. In United States v. Johnson, 43Lin k to the text of the note immunity was upheld against a wrongful death claim by a Coast Guard pilot's widow who alleged that Federal Aviation Administration (FAA) air traffic controllers negligently caused the pilot's aircraft to crash. The Court applied the three Feres rationales despite the FAA's civilian status: (1) the federal relationship between the government and servicemen; (2) the existence of statutory disability and death benefits; and (3) the potential that servicemen's suits against the government could disrupt military discip line. Johnson suggests that it is not the military status of the agency which is essential for immunity; rather, the immunity may be extended where necessary to prevent suits based on service-related injuries. Courts have extended the logic of Feres to bar suits by servicemen not only again st the government but also against private military
contractors. In Stencel Aero Engineering Corp. v. United States, 44Link to the text of the note the Court rejected a contractor's claim of indemnificatio n from the government for damages paid to a member of the National Guard. In the Agent Orange [*1607] litigation, 45Link to the text of the note the Court inverted the logic of Stencel Aero Engin eering to grant private contractors a defense again st servicemen's product liability claims if they proved that: (1) the government established the specifications for the product; (2) the product complied with the government's specificatio ns in all material respects; and (3) the government knew as much as, or more than, the contractor about the hazards accompanying use of the product. According to the Court's reasonin g: The purpose of a government contract defense in the context of this case is to permit the government to wage war in whatever manner the government deems advisable, and to do so with the support of suppliers of military weapons. Considerations of cost, time of production, risks to
participants, risks to third parties, and any other factors that might weig h on the decisions of whether, when, and how to use a particular weapon, are uniquely questions for the military and should be exempt from review by civilian courts. 46Lin k to the text of the note The Agent Orange case left open the question of how explicit government specifications must be to support the immunity: Is mere approval of contractor specifications sufficient, or does the immunity require compulsory in structions that the contractor must obey? 47Lin k to the text of the note [*1608] It is not the purpose of this Article to challenge either the discretio nary function exception or the Feres incident-to-service exception. Each exception is based on reasonable considerations regarding the limits of judicial authority and generally has been applie d conservatively in appropriate situations. In a sense, these two exceptions illustrate that judicial caution is appropriate when courts review conduct at opposite extremes of the military command spectrum: The discretionary function
protects the highest and most abstract functions of government -- the formulation of policy by senio r officials; and the "incident to service" exception protects the most specific military commands -- the battlefie ld orders of an officer to his troops. The problem with these exceptions is not their application in appropriate circumstances, but rather if the exceptions are allo wed to expand, they eventually will meet and immunize all activities bearing the military's imprimatur. There is a vast and important range of potentially tortious military conduct between the extremes of discretionary policymaking and commands incident to service. Each case discussed below arguably falls into this middle range because the pla intiff's claim of inju ry challenges neither military policy nor the commands of superior officers; instead, the challenge in each case is against the manner that a particula r military program was executed. C. Limiting the Exceptions This Article's purpose is to suggest that the courts have improperly extended the language of both FTCA exceptions in
the three weapons testin g cases discussed herein to render tort cla ims again st the military nonjusticiable. Indeed, this Article asserts that the weapons testin g cases represent fla wed judicial efforts to apply the nonjusticiability considerations undergirding the political questio n doctrine to these disputes by invoking either the FTCA discretionary function or the in cident-to-service exception. This doctrinal shift from the constitutional dimensio ns of the political question doctrine with its judicially develo ped criteria 48Lin k to the text of the note to a [*1609] reliance on the FTCA's open-ended exceptions to federal government liability -- substantially broadens the range of military conduct that may be nonjusticiable. Nonjusticiability based on prudentia l consid erations regarding the possibility of unwarranted in trusion into military affairs beyond the scope of the judiciary's article III authority has been upheld in cases where properly authorized matters of natio nal security policy directly rela te to the international exercise of military force. 49Link to the text of the
note The political question doctrine, itself hig hly controversial, 50Link to the text of the note applied in this context reflects the judiciary's reluctance to in terfere with the legitimate exercise of military authority, due in part to the military's need for unchallenged loyalty in the face of external threats. 51Link to the text of the note Where a complainant challenges military policy, the doctrine asserts that responsible officials may be held accountable only in the political arena -- ju dicial review of a claim alleging tort liability is therefore inappropriate. Yet this doctrine is limited by countervailing considerations that emphasize the importance of judicial review even of disputes with a political or military aspect. Even the Supreme Court's broadest application of the political question doctrine to the military, Justice Burger's opinio n in Gilligan v. Morgan, 52Lin k to the text of the note cautioned again st an application of the doctrine that would preclu de entirely legal accountability: The ultimate responsibility for [the composition, training, equipping, and control of the
national guard] is appropriately vested in branches of government which are periodically subje ct to ele ctoral accountability. It is this power of oversight and control of military force by [*1610] ele cted representatives and officials which underlies our entire constitutional system . . . . . . . In concludin g that no justiciable controversy is presented, it should be cle ar that we neither hold nor imply that the conduct of the National Guard is always beyond ju dicial review or that there may not be accountability in a judicial forum for violations of law or for specific unla wful conduct by military personnel. 53Link to the text of the note Applicatio n of the discretionary function and Feres exceptions to the weapons testing cases achieves the same result as applicatio n of the political question doctrine, but in unprecedented contexts. The effect is to radically expand the doctrinal bases for denying legal redress to tort victims of military activity. Although the political question doctrine was not raised explicitly in any of the weapons testing cases discussed below, the metaphor
of nonjusticiability helps to expla in the decisions. The courts used the discretionary function and incident-to-service exceptions as rubrics for refusing to entertain the plaintiffs' claims of tortious conduct by the military. These three decisions starkly assert the underlying ratio nale for political question nonjusticiability without considering the three limiting considerations set out below. Further, these decisions invoke nonju sticiability in statutory (rather than constitutional) contexts, in which the need for prudential deference should be, and generally has been, le ft for congressional determination. Thus, these three weapons testin g decisions, in the unprecedented context of federal tort litigation under the FTCA, exhibit a one-sided application of the political question doctrine that neglects the countervailing need for judicial review. Application of the political question doctrine involves three principles. First, the protected conduct must be of constitutional significance -- i.e., only the decisions of Congress or high ranking Executive Branch officials would be
nonjusticiable. 54Lin k to the text of the note Thus, not all cases with political [*1611] overtones are thereby rendered nonjusticiable. A "political question" challenge must be against the conduct of a senior Executive official who is authorized, either by article II of the Constitution or by specific congressional enactment, to act for the United States in regard to war or foreign relations. 55Link to the text of the note Second, the constitutio nal allocatio n of authority to either Congress or the Executive Branch must be manifest for the Court to invoke political question deference. Although the judiciary should abjure review of the government's final policy decisions, the judiciary must nevertheless review the preliminary question of whether in fact policy decisions were made. As discussed above in the context of the discretionary functio n exception, 56Link to the text of the note this consid eratio n draws on the distinction between injuries that result from a policy choice and injuries resulting from execution of policy at the operational level. [*1612] Third, in cases
where nonjusticiability is based on the judiciary's inability to make factual determinations because they are beyond the judiciary's resources and expertise or would constitute an intrusion impairing effective government administration, that in ability must be patent in recognition of the judiciary's procedures for dealing with sensitive information. This condition raises troubling issues regarding the ju dicial role in resolving comple x and sensitive disputes. There is a strong presumption that the judiciary has the ability to make factual determinatio ns when presented with a dispute over legal rights -- to refuse to decide a case due to the sensitive political informatio n involved must be because of the overwhelming and obvious difficulties in ascertainin g the truth in a particular case; mere concern about political sensitivities is not enough. The case precedents stress that the difficulty of determining facts must not swallow the necessary role of judicial review. In Langenegger v. United States, 57Link to the text of the note for example, claims that the United States
was responsib le for a program of agrarian reform in El Salvador that resulted in confiscatio n of pla intiffs' property were held justiciable: The courts are often presented with questions which consider congressional or executive actions and purposes, and have managed to decid e cases without putting the government in a fishbowl . . . . . . . . . . . While cases involving foreig n affairs may make the courts uncomfortable, the Constitution mandates the role of the judiciary without regard to its comfort. 58Lin k to the text of the note These limitations on in voking the political questio n doctrine serve the important purpose of restricting nonju sticiability to a very select set of issues and draw a discernible line between deference and abdication. Consider, by way of contrast to the three weapons testing decisions discussed herein, the court's willingness to hear the tort claim raised in De Arellano v. Wein berger, 59Link to the text of the note one of the most important political question [*1613] cases decid ed in recent years. A United States citizen claimed that the
United States Department of Defense, in building a large military facility for trainin g Salvadoran soldie rs on his cattle ranch in Honduras, had taken his property without due process of law in violation of the fifth amendment. 60Lin k to the text of the note The district court dismissed the complaint as nonjusticiable because the claim directly challenged the propriety of the United States' military presence in Central America. 61Lin k to the text of the note The Court of Appeals for the District of Columbia Circuit reversed, explaining: "[P]lain tiffs do not seek to adju dicate the lawfulness of the United States military presence abroad. Instead, they seek adjudication of the narrow issue whether the United States defendants may run military exercises throughout the plaintiff's private pastures when their land has not been lawfully expropriated." 62Lin k to the text of the note In contrast to disputes that challenged the propriety of U.S. policy in Central America, 63Link to the text of the note the court of appeals reasoned that the judiciary could resolve the factual
disputes without exceeding its expertise or risking disclosure of sensitive and confidential communications. Then-Judge Scalia, dissenting, characterized the pla intiff's claim as one requiring "direct court interference with a military operatio n being conducted abroad," since it sought an order that "would have substantia l foreig n policy consequences." 64Link to the text of the note In response to Judge Scalia's obje ction, Judge Wilkey's majority opinion referred to the narrowness of the political question doctrine: The Executive's power to conduct foreign relations free from the unwarranted supervision of the Judiciary cannot give the Executive carte blanche to trample the most fundamental liberty and property rights of this country's citizenry. The Executive's foreign relatio ns prerogatives are subject to constitutional limitation . . . . . . . Affirmance of this dismissal on the ground that plaintiff's claims are political questions or an improper challenge to foreign affairs [*1614] powers would mean that virtually anything done by United States officials to United
States citizens on foreign soil is nonju sticiable. This is not the law. 65Lin k to the text of the note Judge Wilkey's assertion of limits to nonjusticiability demonstrates that until very recently Judge Scalia's broad use of the political questio n doctrine neither was nor should be the law. The De Arellano decision stands in opposition to each of the three weapons testing decisions discussed herein (two of which were authored by Justice Scalia). In each case, the judiciary refused to adjudicate injury claims of American citizens stemming from military activities during peacetime. None of these claims challenged internatio nal or political activities that required senior Executive Branch approval or forced the ju diciary to make exceptionally sensitive factual determinatio ns. The limiting considerations inherent in the political question doctrine would not have counseled against judicial review. Instead of confronting those considerations directly, the courts in United States v. Stanley, Alle n v. United States, and Boyle v. United Technologies formulated new doctrine to
reach the same result with less justificatio n. In comparison to De Arellano, the weapons testing decisions: (1) deny justiciability of challenges to the military's domestic peacetime activities; (2) erase nearly all specific criteria by which courts have determined a need for deference; and (3) reflect a judicial imprimatur on the strategic importance of weapons testing. Ironically, these decisions also denounce the judiciary's ability to do what courts normally do well -- analyze specific facts under criteria honed by precedent -- but affirm the judiciary's ability to assess risks, weig h values, and allo cate costs. The result of this doctrinal devolutio n is that the scope of judicial review of military discretion has narrowed radically, thereby generating serious concerns that the military may transgress constitutio nal rights of Americans with impunity. II. UNITED STATES V. STANLEY During World War II, the Office of Strategic Services (OSS), the predecessor of the Central Intelligence Agency (CIA), began searching for a drug that could overcome the psychological
defenses of enemy spies and precipitate their uninhibited disclosure of secret information. After experimenting with alcohol, barbiturates, peyote, scopolamine, marijuana, mescaline, and cocaine, in the early 1950s the CIA settled on lysurgic acid diethylamide (LSD) because it had the potentia l of eliciting [*1615] accurate informatio n while leaving the subject with temporary amnesia . 66Link to the text of the note In addition, the CIA was concerned that the Soviet Union and communist China might be developin g LSD as an espionage weapon; the CIA therefore wanted its operatives to have had experience with LSD before being sent on sensitive overseas missions so that, if captured and drugged, they would not break down. 67Link to the text of the note CIA operatives realized that in tense mental confusion could be produced by deliberately attackin g a person along psycholo gical lines. Of all the chemicals that caused mental derangement, none was as powerful as LSD. Acid not only made people extremely anxious, it also broke down the character
defenses for handling anxiety. A skillful in terrogator could explo it this vulnerability by threatening to keep an unwitting subject in a tripped-out state indefin itely unless he spilled the beans. This tactic often proved successful where others had failed. CIA documents indicate that LSD was employed as an aid to interrogatio n on an operational basis from the mid-1950s through the early 1960s. 68Lin k to the text of the note In 1953, the CIA initia ted Operation MKULTRA under the direction of Richard Helms, then a high-ranking member of Clandestine Services. Although MKULTRA testing at first was limited to CIA personnel, subsequent projects involved the surreptitious administration of LSD to unwittin g civilian subjects. 69Link to the text of the note Meanwhile, the Army Chemical Corps pursued widespread testing of LSD on unsuspecting military units to determine the drug's effects on sold ier performance. 70Link to the text of the note These tests rarely met FDA standards for drug testing on humans 71Link to the text of the note -- indeed, in some
instances no medical personnel were even present. 72Link to the text of the note In all, the [*1616] Army Chemical Corps subjected nearly fifteen hundred military personnel to LSD experiments. 73Link to the text of the note A. The Prima Facie Case In 1958, Master Sergeant James B. Stanley, a highly decorated veteran of the Korean War, volunteered to participate in an experimental program with the alleged purpose of testing methods of defense again st chemical warfare attack, including the testin g of various gas masks and protective clothing. During the course of clinical testing at Edgewood Arsenal in Aberdeen, Maryland, he unknowingly consumed four doses of LSD. Stanley claimed that he suffered from hallucinations and memory losses that eventually tore apart his career and marriage. Not until 1975, when the Army wrote Stanley requesting information from "volunteer participants" for a follow-up study on the effects of LSD, did Stanley learn the cause of his distress. When his claims for compensation were denied by the Army and the
CIA, Stanley file d suit under the FTCA alleging negligence. 74Lin k to the text of the note The district court granted summary judgment for the government, reasoning that the Feres doctrine 75Link to the text of the note barred Stanley's suit because his injuries were "incident to military service." 76Lin k to the text of the note The Fifth Circuit vacated that decision on grounds that the district court should have dismissed the suit for lack of subject matter jurisdiction rather than grant summary judgment. On remand, Stanley amended his complaint to assert a constitutional claim against the government officers -- a so-called Bivens claim -- for denial of his constitutional right to be free to decide for himself whether to become a test subje ct in drug experiment. 77Link to the text of the note

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 78Link to the text of the note
the Supreme Court established that the victim of a constitutional [*1617] violation by a federal officer
has the right to recover damages against the official in federal court despite the absence of any
statute conferring such a right , unless one of two conditions is present: (1) The defendant
demonstrates "special factors counselling [the court's] hesitation in the absence of affirmative action by
Congress," 79Link to the text of the note or (2) Congress has provided an equally effective remedy and
declared explicitly that it is a substitute for recovery directly under the Constitution. 80Link to the text of
the note The damages remedy stems from the Supreme Court's article III power to award
damages, even against unconsenting federal officials , when necessary to vindicate
constitutionally protected interests . Without this remedy, victims of constitutional torts would lack
legal redress against federal officers violating their constitutional rights . 81Link to the text of the
note
Master Sergeant Stanle y's Bivens claim asserted that the government deprived him of liberty without due process by denying him the right to be free to decide for himself whether to submit to drug experimentatio n. 82Lin k to the text of the note The district court held : The surreptitious administration of LSD to an unwittin g serviceman who believes he is involved in a project important to the development of defenses to chemical warfare constitutes a violatio n of the rights of privacy and bodily integrity, and of the right of an individual to control his mind, his private thoughts and his intellectual process. 83Lin k to the text of the note None of the judges in volved at any stage of this complex litigation, including Justice Scalia who wrote the Court's opinion disallowing Stanle y's Bivens claim, disagreed that Stanle y's injuries resulted from a violatio n of his constitutional rights. The later stages of this litigation turned on the Supreme Court's decision in Chappell v. Wallace, which denied Bivens relief for five black men enlisted in the Navy who alleged racial
discrimination by their superior officers in jo b assignments and performance evaluatio ns. 84Link to the text of the note Citing concerns for the "inescapable demands of military discip line," 85Link to the text of the note the Court in Chappell ruled that "the need for unhesitating and decisive action by military officers and equally disciplined responses by enlisted personnel would be undermined by a ju dicially created remedy exposing [*1618] officers to personal liability at the hands of those they are charged to command." 86Lin k to the text of the note The Chappell Court relied on the Feres doctrine to hold that "the uniq ue disciplinary structure of the Military Establishment and Congress' activity in the fie ld constitute 'special factors' which dictate that it would be inappropriate to provide enlisted military personnel a Bivens-type remedy against their superior officers." 87Link to the text of the note The defendants in Stanley moved to dismiss, asserting that the need to protect military discipline, as recognized in Chappell, precluded civil adjudication of
Stanley's claims. The district court in Stanley interpreted Chappell to bar only actio ns "in which a member of the military brings a suit against a superior officer for wrongs which in volve direct orders in the performance of military duty and the discipline and order necessary thereto." 88Link to the text of the note Accordingly, the district court found the analogy between Stanley's claims and those asserted in Chappell unconvincing: [Stanley]'s Bivens action in the instant case neither involves nor threatens to compromise military discipline. The case does not involve a combat or combat-trainin g situatio n; it does not involve any exigent circumstances; and it is not a case in which Stanley was either ordered or obligated to participate in a military exercise. 89Lin k to the text of the note [B]y donning a uniform, a member of the Army does not volu nteer himself to be duped and deceived in to becoming a guinea pig for his superiors, and consequently to be deprived of his most fundamental constitutional and human rights. The "peculiar and special relationship
of the sold ier to his superiors" does not permit the violation of those fundamental rights in a situation that does not involve military discipline and duty. 90Link to the text of the note The Eleventh Circuit agreed that, unlike Chappell, the adjudication of Stanley's cla ims would not undermine the "special nature of military life, the need for unhesitating and decisive action by military officers and equally discip lined responses by enlisted personnel." 91Link to the text of the note Furthermore, Congress's plenary authority over the military did not militate against permittin g Stanley's Bivens claim because "[t]hose intramilitary administrative procedures which the Court found adequate to redress the servicemen's racial discriminatio n complaints in Chappell are clearly inadequate to compensate Stanley for the vio lations compla ined of [*1619] here." 92Link to the text of the note Undaunted by the Ele venth Circuit's refusal to accept the purported precedent of Chappell for the claim brought by Master Sergeant Stanley, the Army appealed to the Supreme Court. B.
The Supreme Court's Decision The issue before the Supreme Court was whether Stanley's allegations of surreptitious drugging, plus the government's failu re to notify him or offer subsequent treatment, were claims which the court could not address because of "specia l factors counselling hesitation." That issue turned on whether Chappell's incident-to-service test was co-extensive with the Feres bar against suits brought under the FTCA. Stanley argued that the defendants were not his superior officers, indeed they may have been civilians, and therefore the chain-of-command concerns underlying Chappell were not implicated -- his injuries simply were not incident to service. The success of that argument rested on the defin ition of the term "incid ent-to-service." The broader the definition, the less likely the conduct would be held justiciable . In a five-to-four decision, the Supreme Court reversed Stanley's victory in the circuit court on grounds that the same "special factors" counselling restraint in Chappell applied to Stanley's action. 93Link to the text
of the note Justice Scalia's majority opinion recognized that there are "varying levels of generality at which one may apply 'special factors' analysis," 94Link to the text of the note from allo wing suits for egregious conduct even in the officer-subordinate context, to disallowing suits only if "it affirmatively appears that military discipline would be affected" or "disallow[ing] Bivens actions whenever the injury arises out of activity 'incident to service.'" 95Link to the text of the note The choice depends "upon how harmful and inappropriate judicial in trusion upon military discipline is thought to be." 96Link to the text of the note As Justice Scalia concluded for the Court: "This is essentially a policy judgment . . . ." 97Lin k to the text of the note Justice Scalia, for the majority, based that policy judgment not on what happened to Master Sergeant Stanley or the need for accountability, but on the need to protect military concerns: A test for liability that depends on the extent to which particula r suits would call into question military discipline and decision-making would
itself require ju dicial inquiry into, and hence intrusion upon, military matters. Whether a case implicates those concerns would often be problematic, raising the prospect of compelled depositions and trial [*1620] testimony by military officers concerning the details of their military commands. Even putting aside the risk of erroneous judicial conclu sions (which would beclo ud military decision-making), the mere process of arriving at correct conclu sions would disrupt the military regime. The "in cident to service" test, by contrast, provides a line that is rela tively clear and that can be discerned with less extensive inquiry into military matters. . . . The "specia l facto[r]" that "counsel[s] hesitatio n" is not the fact that Congress has chosen to afford some manner of relief in the particular case, but the fact that congressionally uninvited intrusion in to military affairs by the judiciary is in appropriate. 98Lin k to the text of the note The issue of whether the injury was incident to service within the meaning of Feres already had been decided adversely to Stanley: "The
experiment was conducted on an Army base by and for the benefit of the Army. Thus, the relationship between Stanley and the allegedly negligent individuals stemmed from their official military rela tionship." 99Link to the text of the note The point at issue was not whether Stanley had an adequate federal remedy for his injuries nor the particular defendants' immunity to such an action. The Court's holding was based simply on the conclusio n that "no Bivens remedy is available for in juries that 'arise out of or are in the course of activity incident to service.'" 100Lin k to the text of the note Simply put, having found that the challenged drugging took place on an Army base pursuant to official orders, it followed necessarily that the conduct was protected. Accordingly, Stanley's cla im was decid ed by the broad and unequivocal defin ition of "incident to service." Justice O'Connor dissented on the grounds that Stanley's injuries were the result of conduct "so far beyond the bounds of human decency that as a matter of law it simply cannot be considered a part
of the military mission." 101Link to the text of the note Justice O'Connor did not dispute the principle that Chappell bars suits in volving harm caused as a result of military service; rather, she disagreed that the application of that bar could "insula te defendants from liability for deliberate and calcula ted exposure of otherwise healthy military personnel to medical experimentatio n without their consent, outside of any combat, combat trainin g, or military exigency, and for no other reason than to gather information on the effect of lysergic acid diethylamide on human beings." 102Lin k to the text of the note Justice Brennan, joined in his dissent by Justices Marshall and Stevens, began with reference to the 1947 medical trials at Nuremberg which "deeply impressed upon the world that experimentation with unknowing [*1621] human subje cts is morally and le gally unacceptable ." 103Link to the text of the note Accordingly, the first princip le of the Nuremburg Code is that the voluntary consent of human subjects is essential prior to experimentation. In defiance
of this prin ciple, Justice Brennan poin ted out, the military drugged "unwitting, nonvolunteer" 104Lin k to the text of the note Americans. When these activities were discovered, the military maintained that it should "remain free to viola te the constitutional rights of soldiers without fear of money damages." 105Link to the text of the note Replied Justice Brennan: "[G]overnment officials (military or civilian) must not be left with such freedom. . . . Serious violations of the constitutional rights of soldiers, must be exposed and punished." 106Link to the text of the note According to Justice Brennan's dissent, the majority opinion conferred absolute immunity on the defendant officials despite longstanding precedents establishing liability for intentional violations of constitutional rights. 107Link to the text of the note More to the poin t, in applying Chappell, the majority ignored the fact that the defendants were not Stanley's superior officers and that the concern for soldiers' unquestio ned obedience to orders is not implicated in cases in which a soldier sues civilian
officials. 108Lin k to the text of the note The CIA, after all, did not command him to undergo the experiments nor could it have so ordered a soldier. The CIA is not a branch of the United States military and has no direct authority over Army personnel. 109Lin k to the text of the note Justice Brennan observed: The Court fears that military affairs might be disrupted by factual inquiries necessitated by Bivens actions. The ju diciary is already involved, however, in cases that implicate military judgments and decisions . . . . Unless the command relationship . . . is involved, these violations should receive moral condemnation and le gal redress without limitation to that accorded negligent acts. 110Link to the text of the note [*1622] Most important to Justice Brennan was that Chappell was a narrow exception to the significant interests protected by Bivens actions: Were I to concede that military discip line is somehow implicated by the award of damages for intentio nal torts again st civilian officials, I would nonetheless conclude, in accord with our usual immunity
analysis, that the decision-making of federal officials deliberately choosing to violate the constitutional rights of soldie rs should be impaired. I cannot comprehend a policy judgment that frees all federal officials from any doubt that they may intentionally, and in bad faith violate the constitutional rights of those serving in the Armed Forces. . . . . . . . Soldie rs ought not be asked to defend a Constitution indifferent to their essentia l human dig nity. 111Lin k to the text of the note C. The Purpose of Deference to Military Discretion -- Part I What is the military security justification for testing LSD on soldiers? LSD testin g was never an important part of the strategic debate nor has it been defended explicitly by the military establishment. The majority of the Supreme Court in Stanley refused to hear a constitutional challenge to nonconsensual drugging on the grounds that judicial review would intrude in to military affairs. The Supreme Court required neither evidence that LSD testing bore a significant relationship to military security nor proof of a chain of authority
from those who administered the tests to those at the "pla nning le vel" where policy is decided. Moreover, none of the criteria of nonjusticiability were emplo yed. According to the Court, the only relevant consid eratio n was that the challenged conduct was "incid ent to service;" any further ju dicial inquiry was necessarily intrusive. The Supreme Court simply refused to allow a legal challenge to a military matter because of its concern with maintaining the institutional division between the judiciary and the military. In theory, the government's surreptitious experimentation on Master Sergeant Stanley could have in volved any substance: steroids, opiates, chemical weapons, or even radioactive materials. Not a word in Justice Scalia's opinion suggests that there is any limit on what type of testing military authorities can do to soldiers. As long as the testing takes pla ce on a military base, in volves military personnel, and is performed under proper military command, the Court will not allow the Constitution to intrude on the discretion of military authorities.
112Lin k to the text of the note [*1623] This conclusion is indeed ominous. Heretofore, the judiciary abstained from reviewing matters that implicated the hie rarchy of command and the need for immediate obedie nce to orders. These two conditions underlie Chappell, the precedent for Justice Scalia's opin ion. By focusing on the officer-subordinate relationship, deference under the doctrine of "special factors counselling hesitatio n" made sense. But Master Sergeant Stanley's claims did not involve such a relationship. Instead of protecting military commands from subsequent review, the Court shrouded the government's determinatio n that LSD testin g was important to military security. Review of that determination has far different implications than a review of officer-subordinate matters. At issue here is not the need to ensure immedia te obedience to authority -- Master Sergeant Stanle y was not alleging improper conduct by a senior officer. He was alle ging that a military program had violated his rights. The trial of this claim would have inquired into
important matters of administrative process: What was the statutory or executive authority for the program? Did those who made the decision to proceed with the program have sufficient delegated authority? Did the execution of the program at the operational level reasonably comply with decisions made at the pla nnin g level? For the first time in American law, the majority of the Supreme Court decided that the courts may not even address these questions to the military. The military should have the initial burden to establish more than the mere fact that the conduct took place on a military base; it should be obligated to advance a reasonably authoritative connection between the testing and a policy decision by legitimate congressional or Executive authority. The demonstration of a clear authoritative structure from the administrator of the test up to a senior Executive Branch official would have exposed the level of in itiative for the program. The possib ility exists that drugging soldiers was a rogue program of which the nation's leaders were unaware:
The LSD testin g may have resulted from the caprice of someone low in the chain of command who ordered this program of covert drugging for purposes scarcely related to national interests. It is uncle ar whether proper congressional or Executive authority to drug Stanley existed; Justice Scalia's opin ion conspicuously fails to cite any evid ence of such chain-of-command authority. 113Link to the text of the note [*1624] Even if a reasonable authority structure is asserted, why should the military not be required to undertake properly conducted research studies if it wants to learn of the effects of dangerous drugs? The military should realize that there are proper (and hence improper) methods of accomplishin g certain ends. It would not be unusual for a biomedical laboratory to test drugs pursuant to a military contract; private institutions must follow professio nal standards and procedures. In the context of LSD testin g, why did the authorities decide to administer the tests through non-medical personnel? Why were some subjects, including Stanley,
completely uninformed about the substance of the test? All these questio ns could be answered without jeopardizing military security: if reasonably answered, there might be a basis for invoking the discretio nary function exception. But by relying on the "special factors counselling hesitation" exception to the Bivens doctrine, the military defendants in Stanle y convinced the Supreme Court to render the controversy nonjusticiable. 114Link to the text of the note Without judicial review, it is impossible to know exactly why these tests were undertaken or how they were admin istered. Without compelling evidence of an apparent military security justificatio n nor an authoritative structure linking the tests' execution to senio r political officials, the liability exception for conduct "incid ent to service" was given nearly limitless applicatio n. As Justice Murphy warned in Korematsu, the claim of military security leaves important legal issues entirely unaddressed. 115Link to the text of the note Perhaps most chilling is that Justice Scalia's opinion evinces no dismay (or
repugnance) about what the Army did to Master Sergeant Stanley. Nowhere does the opinion even faintly suggest that Master Sergeant Stanley was caused unreasonable harm. Justice Scalia's denial of the central reality of the case suggests a tolerance for conduct -- medical experimentatio n on non-volunteer humans -- that the Nuremburg Trials condemned as unju stifiable on a claim of "military necessity." Yet the Supreme Court of the United States held that such conduct was nonju sticiable because it was "incid ent to service," 116Lin k to the text of the note -- to award legal redress would "require judicial inquiry into, and hence intrusion upon, military matters." 117Link to the text of the note The obvious reply to this hold ing is to agree that judicial revie w and a civil suit to redress injuries would be intrusive. The rele vant questio n, [*1625] however, is whether that intrusion would be constitutional. The Supreme Court answered this questio n negatively, despite the commitment of the Western world at Nuremberg to safeguard humans from non-
voluntary testing. The hands of those responsible for the testing have been washed clean. III. THE ATOMIC TESTING LITIGATION The litigatio n involving cla ims of injuries resulting from atomic testing 118Link to the text of the note differs from the Stanley litigation in three significant respects. First, atomic weapons testing was, by any conceivable measure, far more essentia l to national security than was LSD testing. It hardly can be disputed that any potential foe was cautioned more by the U.S. military's demonstration of nuclear weaponry than by the military's testing of hallucinogenic drugs. Second, although the consequences of atomic testing were far more widespread and more severe than the consequences of LSD testing, the causal connectio n between the testing and the resulting injuries was more ambiguous in the context of atomic testing. For purposes of tort accountability, the fact that atomic testing may have caused innumerable cancers is both more serious and less definite than Master Sergeant Stanley's problems. Third, the atomic
testing litigation never raised

Wha s he under y ng bas s or he Cour s ear ha w n er ere w h he m ary? O course he

Un ed S a es has rea secur y needs and he m tary s response to those needs shou d not be
ma ers or ud c a rev ew Bu hose secur ty needs are not a ways at stake There have o be m ts
o h s concept of ud c a deference f there are no m ts hen he hrea o an ex erna enemy ever
v g an o des roy us our m ary s a a cons ra ned w be used o ust fy the oss o he very
reedom and secur y ha we seek f there are no cr ter a by wh ch courts may determ ne whe her a
g ven dec s on s ndeed he essence o na ona secur y po cy hen he pr mary force of
accountab ty -- ud c a rev ew -- w be barred a he Pen agon s ga e
Under y ng h s ca or cr er a s he be e ha the age of nuc ear deterrence poses spec a prob ems
or he app ca on o aw o he m ary es ab shmen Amer ca has spen much o he wen e h cen ury
de end ng ber y and on y a oo wou d c a m ha v c ory may be dec ared and our guard e down Ye
Amer ca s no a war Wh e he many hrea s ha he na on mus ace compe read ness no s a e o war
ex s s Recen revo u onary changes n he Eas ern B oc na ons presen h s coun ry w h a un que
oppor un y o re ec on he Co d War and he po c es spawned Desp e hese mproved prospec s and
he earsome m ary capab es o he Sov e Un on and o he Un ed S a es weapons es ng esca a es
n an age o nuc ear weapons "mu ua assured des ruc on" has become he u ma e us ca on or he
sovere gn s mmun y m ary au hor y s n er ered w h by ud c a rev ew hen he chance o
hermonuc ear ho ocaus may ncrease and we may a be des royed Such was he us ca on o
med eva kn gh s who era y obeyed a d eren code *1653 han ha obeyed by c v an sub ec s Bu
med eva kn gh s cou d never po n o any ex erna hrea -- any dragon n he woods -- qu e so terr fy ng
as Sov e CBMs mus be remember however ha hese modern pro ec ors he armored and mmune
Un ed S a es m ary have caused more dea h and d sease han any Sov e weapon Now ud c a
abdication to the purported needs of the warrior class renders us all the bearers of the unknown and
unknowable consequences of weapons testing.

4.Even if Congress acts to protect---Can’t solve---Key to the net benefit

Blair 20 – JD-St. Louis
Daniel Blair, JD-Saint Louis University, One Step Away: How Hernández II Signals the Elimination of
Bivens, 64 St. Louis U. L.J. (2020), https://scholarship.law.slu.edu/lj/vol64/iss4/11

The state of Bivens claims has never been in greater peril. If Thomas’s Hernández II concurrence is any
indicator, and I believe it is, then Bivens claims are one step away from elimination . There have been
calls for Congress to act;125 and, certainly, congressional action would be the quickest way to secure
these Constitutional rights. However , even if Congress were to pass a statute creating an appropriate
remedy for this instance , it is still possible that some rights would not be covered . Therefore, a new
test for implied claims for constitutional violations would still be needed. The Court adopting the test
presented here is the only way to ensure that all constitutional rights are protected . As the draft
dissent showed, the Supreme Court not only has the ability to create an implied remedy to
constitutional violations, it has the duty to do so to protect the separation-of-powers and
constitutional supremacy principles that make up the foundation of our constitutional
scheme .
 —Ext—Narrow—2NR
The permutation is deference to a Congressional decision—Instead, the CP alone
restores an expansive read of Bivens
Robotti 9 – Associate, Ropes and Gray LLP
Michael P. Robotti, J.D., magna cum laude, NY Law, Article: Separation of Powers and the Exercise of
Concurrent Constitutional Authority in the Bivens Context, 8 Conn. Pub. Int. L.J. 171, 2009

A Retreat from Bivens under the Guise of Institutional Competence

Again, blending the exceptions originally set forth in Bivens, the Court in Schweiker v. Chilicky 66Link to
the text of the note found the existence of a congressionally created remedial scheme to be a special
factor counseling hesitation that foreclosed a Bivens remedy. 67Link to the text of the note In this case,
the plaintiff brought suit under the Due Process Clause of the Fifth Amendment in response to the
hardship he experienced as a result of the Reagan Administration's illegal policy of disqualifying large
numbers of Social Security disability recipients from their benefits. 68Link to the text of the note Justice
O'Connor for the majority stated: "When the design of a government program suggests that Congress has
provided what it considers adequate remedial mechanisms for constitutional violations that may occur in
the course of its administration, we have not created additional Bivens remedies." 69Link to the text of the
note The Court asserted that it must give "an appropriate judicial deference to indication that
congressional inaction has not been inadvertent." 70Link to the text of the note
Justice Brennan wrote a scathing dissent in this case because, unlike in Bush or Stanley, the Court was
not deferring to the superior competence of Congress in remedying a constitutional violation. 71Link to
the text of the note Congress had not remedied the constitutional violation at all in this case :
disqualified recipients were not allowed to present constitutional challenges to agency action at any of
the four tiers of administrative review under the statute. 72Link to the text of the note Constitutional
challenges could be raised at the level of judicial review, but those who won at the administrative level
and had their benefits restored [*180] had no standing to press constitutional challenges. 73Link to the
text of the note Justice Brennan noted that while "neither the military justice system nor the federal
employment relations scheme affords aggrieved parties full compensation for constitutional injuries . . .
the relief provided in both is far more complete than [here]." 74Link to the text of the note Moreover,
Justice Brennan asserted that there was no reason for the Court to afford deference to Congressional
inaction with respect to the constitutional violations at issue; this inaction in no way demonstrated intent
to foreclose Bivens relief. 75Link to the text of the note This was not an area in which Congress had
special expertise that the Court lacked; in fact, the social welfare system turned "on the relationship of the
Government and those it governs-the relationship that lies at the heart of constitutional adjudication."
76Link to the text of the note Thus, while this case was ostensibly decided under the auspices of
institutional competence , the majority's opinion once again suggested that the Court lacked the
power to create a Bivens remedy without congressional authorization .
In Correctional Services v. Malesko, 77Link to the text of the note it became apparent that the Court had
adopted the view that it lacked the power to fashion Bivens remedies. 78Link to the text of the note
The plaintiff in this case, an inmate living at a halfway house, filed suit against the federal contractor
operating the home for violating his Eighth Amendment rights. 79Link to the text of the note Although not
explicitly discussing which Bivens exception foreclosed a remedy, the Court for the first time found that a
Bivens remedy could be precluded by state law remedies, 80Link to the text of the note a proposition
explicitly rejected in Bivens itself. 81Link to the text of the note In "affirming" the core holding of Bivens,
Chief Justice Rehnquist gave Bivens and its progeny the narrowest possible reading , stating that the
Court should not create a Bivens remedy unless it is necessary "to provide an otherwise nonexistent
cause of action against individual officers alleged to have acted unconstitutionally, or to provide a cause
of action for a plaintiff who lacked any alternative remedy for harms caused by an individual officer's
unconstitutional conduct." 82Link to the text of the note Indeed, in asserting that this remedial issue
was a question for Congress to decide , the Chief Justice stated that "[s]o long as the plaintiff had an
avenue for some redress, bedrock principles of separation of power foreclosed judicial imposition of a
new substantive [*181] liability ." 83Link to the text of the note
These sweeping statements were a far cry from the narrow exceptions articulated in Bivens and
adhered to through Stanley, where the Court precluded a Bivens remedy only upon a showing of an
adequate remedial alternative or special factors counseling hesitation, such as unique congressional
expertise in a specific area. After Malesko, as long as any alternative remedy is available, regardless of
its adequacy or whether it is a federal remedy, a Bivens remedy is foreclosed. This dramatic reduction
in the scope of the doctrine led Justice Stevens to proclaim in his dissent that, "the driving force
behind the Court's decision is a disagreement with the holding in Bivens itself ." 84Link to the text of
the note
This statement by Justice Stevens must be correct; otherwise, the Court's finding that state remedies
can foreclose a Bivens remedy is logically incoherent . Where Congress has taken action in an area
in which it possesses superior institutional competence, it is reasonable for the Court to defer to that
action. But , there is no legitimate argument that the "state courts are more competent to make such
remedial decisions in the absence of Congress than are federal courts." 85Link to the text of the note
Thus, the only logical explanation for the holding in Malesko is that the majority believes that the Court
lacks the power to craft Bivens remedies; thus, it will only do so under the precise circumstances
presented in Bivens, Passman, and Carlson. 86Link to the text of the note Indeed, this was the
conclusion that Justice Scalia reached in his concurrence. 87Link to the text of the note
 —Ext—Squo—2NR
Specifically, that’s what SCOTUS’s current rulings turn on—CP is necessary and
sufficient
Liptak 20 – JD-Yale, taught courses on SCOTUS at Yale Law & UChicago, covers SCOTUS for the
NYT
Adam Liptak, covers the United States Supreme Court and writes Sidebar, a column on legal
developments. A graduate of Yale Law School, he practiced law for 14 years before joining The New York
Times's news staff in 2002. He was a finalist for the 2009 Pulitzer Prize in explanatory reporting. He has
taught courses on the Supreme Court and the First Amendment at several law schools, including Yale
and the University of Chicago, Supreme Court Rules for U.S. Agent Who Shot Mexican Teenager, 2020,
The New York Times, Lexis

In one of two 5-to-4 decisions Tuesday, the court said Congress had not authorized lawsuits over
cross-border shootings. The justices also ruled against a death row inmate seeking resentencing.
WASHINGTON — The Supreme Court divided 5 to 4 twice along its usual lines on Tuesday, with its
conservative majority ruling against the parents of a teenager killed by an American agent shooting
across the Mexican border and a death row inmate in Arizona who said his sentencing was unlawful. The
case concerning the shooting, Hernandez v. Mesa, No. 17-1678, started in 2010, when Jesus Mesa Jr., a
border guard, shot a fleeing 15-year-old boy in the head, killing him. The boy, Sergio Hernández Guereca,
had been playing with friends in the dry bed of the Rio Grande that separates El Paso from Ciudad
Juárez, Mexico. The international borderline, unmarked, runs through the middle of the culvert. The boys
dared one another to run up a concrete incline and touch the barbed wire of the American border fence.
Mr. Mesa grabbed one of them. Sergio made it back to Mexico before Mr. Mesa shot him from about 60
feet away. Justice Samuel A. Alito Jr., writing for the majority , said Sergio’s parents could not sue Mr.
Mesa without congressional authorization . Such authorization is not always required in suits
claiming violations of constitutional rights . In 1971, in Bivens v. Six Unknown Named Agents, the
Supreme Court ruled that federal officials may sometimes be sued for violating the Constitution without
specific statutory authorization . But the court has grown increasingly uneasy about the decision,
which concerned the unconstitutional search of a home in Brooklyn, and it has cautioned that the ruling
should not be extended lightly to new contexts . Justice Alito said the shooting at issue in the case
was such a new context. “Unlike any previously recognized Bivens claim,” he wrote, “a cross-border
shooting claim has foreign relations and national security implications.” “The broad issue of violence along
the border, the occurrence of cross-border shootings and this particular matter have been addressed
through diplomatic channels,” he wrote. Diplomacy, however, appears to have failed in the case. In a
Supreme Court brief, the government of Mexico had urged the justices to allow Sergio’s parents to sue.
“When agents of the United States government violate fundamental rights of Mexican nationals and
others within Mexico’s jurisdiction, it is a priority to Mexico to see that the United States provides
adequate means to hold the agents accountable and to compensate the victims,” the brief said. “The
United States would expect no less if the situation were reversed and a Mexican government agent,
standing in Mexico and shooting across the border, had killed an American child standing on U.S. soil.”
Justice Alito also wrote that “the issue here implicates an element of national security.” “Unfortunately,
there is also a large volume of illegal cross-border traffic,” he wrote. “During the last fiscal year,
approximately 850,000 persons were apprehended attempting to enter the United States illegally from
Mexico, and large quantities of drugs were smuggled across the border. In addition, powerful criminal
organizations operating on both sides of the border present a serious law enforcement problem for both
countries.” Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Neil M. Gorsuch and Brett
M. Kavanaugh joined the majority opinion. In a concurring opinion, Justice Thomas, joined by Justice
Gorsuch, called on the court to overrule the Bivens decision entirely . In dissent , Justice Ruth Bader
Ginsburg wrote that the parents’ lawsuit was authorized by the Bivens ruling . Indeed, she said, Mr.
Mesa’s lawyer had acknowledged that the suit would have been proper had the shooting occurred in the
United States. “The only salient difference here: the fortuity that the bullet happened to strike Hernández
on the Mexican side of the embankment,” Justice Ginsburg wrote. “But Hernández’s location at the
precise moment the bullet landed should not matter one whit.” Justices Stephen G. Breyer, Sonia
Sotomayor and Elena Kagan joined the dissent.
 —Ext—Distinguishing—2NR
Replicates the error of the status quo, namely—Carving out distinctions. Gets
weaponized to eviscerate the doctrine
HLR 17 – Harvard Law Review
THE SUPREME COURT 2016 TERM: LEADING CASE: CONSTITUTIONAL LAW: Constitutional
Remedies -- Bivens Actions -- Ziglar v. Abbasi, 131 Harv. L. Rev. 313

Neither the Constitution nor the U.S. Code states that a federal official who violates a person's
constitutional rights may be sued for damages. In its landmark 1971 decision in Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 1Link to the text of the note the Supreme Court held that a
federal agent who commits an unconstitutional search and seizure can be held liable in damages through
a right of action implied under the Fourth Amendment. Over the next decade, the Court twice extended
the Bivens cause of action into new contexts. In Davis v. Passman, 2Link to the text of the note the Court
held that an employee terminated on account of her sex could seek damages from her former employer, a
U.S. Congressman, under the Fifth Amendment. In Carlson v. Green, 3Link to the text of the note the
Court permitted a Bivens action under the Eighth Amendment against senior prison officials who exhibited
deliberate indifference to an inmate's medical needs. The Court then decided eight consecutive cases in
which it held that a Bivens action did not lie. 4Link to the text of the note Last Term, in Ziglar v. Abbasi,
5Link to the text of the note the Court ruled that persons detained after the September 11 attacks could
not maintain a Bivens action against federal officials responsible for their detention under harsh
conditions. Abbasi is the ninth successive decision, spanning thirty-four years, in which the Court has
chosen to distinguish Bivens. If the Court wants to continue distinguishing Bivens, for the sake of judicial
candor and litigative efficiency it should hold that the Bivens cause of action is limited to the facts of
Bivens, Davis, and Carlson. In the wake of the September 11 attacks, the federal government detained
hundreds of persons unlawfully present in the United States on suspicion of ties to terrorism. 6Link to the
text of the note Often the detention lasted for months, 7Link to the text of the note notwithstanding the
flimsiness of the tip that prompted the arrest. 8Link to the text of the note Many detainees were held in the
Metropolitan Detention Center (MDC) [*314] in Brooklyn, where the conditions of confinement were
severe. Detainees were frequently strip-searched, could rarely leave their small cells (which were kept lit
at all hours), and were often held incommunicado. 9Link to the text of the note Guards allegedly abused
the detainees. 10Link to the text of the note The instant litigation began in 2002. 11Link to the text of the
note Several detainees filed a putative class action in federal court, alleging violations of their
constitutional rights by executive branch officials Attorney General John Ashcroft, FBI Director Robert
Mueller, and INS Commissioner James Ziglar, and by MDC officials, including Warden Dennis Hasty.
12Link to the text of the note The operative complaint, filed in 2010, 13Link to the text of the note set forth
Bivens claims under several constitutional amendments and alleged a conspiracy to commit civil rights
violations under 42 U.S.C. § 1985(3). 14Link to the text of the note The Eastern District of New York
dismissed the case against Ashcroft, Mueller, and Ziglar but allowed most of the claims against the MDC
defendants to proceed. 15Link to the text of the note A divided Second Circuit panel affirmed in part,
reversed in part, and remanded, reviving many of the claims against Ashcroft, Mueller, and Ziglar. 16Link
to the text of the note In sustaining certain Bivens claims, the majority analogized to Carlson, which also
concerned conditions of confinement. 17Link to the text of the note Judge Raggi wrote separately. She
thought the instant Bivens claims differed meaningfully from those previously recognized by the Supreme
Court and would have dismissed the action on that ground. 18Link to the text of the note By an evenly
divided vote, the Second Circuit denied rehearing en banc. 19Link to the text of the note [*315] On
certiorari, two types of Bivens claims remained live. The plaintiffs' detention policy claims alleged that the
executive branch and MDC defendants abridged their Fifth Amendment rights by detaining them under
punitive pretrial conditions (a due process violation) on account of their race, religion, or national origin
(an equal protection violation). 20Link to the text of the note The plaintiffs' prisoner abuse claim alleged
that MDC Warden Hasty violated the Fifth Amendment by knowingly allowing his subordinates to engage
in abuse. 21Link to the text of the note A shorthanded Supreme Court, 22Link to the text of the note
through Justice Kennedy, 23Link to the text of the note reversed on the detention policy claims and
vacated and remanded on the prisoner abuse claim. The Court began by describing the evolution of
Bivens. Bivens, Davis, and Carlson were decided during an "ancien regime," an era when the Court
would sometimes imply a cause of action into otherwise-bare statutory or constitutional text. 24Link to the
text of the note That approach later fell out of favor, first for statutes, 25Link to the text of the note then for
the Constitution. 26Link to the text of the note Today, "expanding the Bivens remedy" into a new context
is "disfavored." 27Link to the text of the note In a Bivens action brought today, the Court explained, the
first question is whether the case arises in a new context. Does it "differ[] in a meaningful way" from the
Court's three decisions recognizing Bivens actions? 28Link to the text of the note Abbasi provided a set of
factors that might so distinguish a case, including "the constitutional right at issue" and "the rank of the
officers involved." 29Link to the text of the note If the context is familiar, the claim may proceed. But if the
context is new, a court must determine whether there are "special factors" that preclude a Bivens remedy.
30Link to the text of the note Are the courts well [*316] suited, in place of Congress, to decide that an
action for damages should lie? 31Link to the text of the note A special factor "cause[s] a court to hesitate
before answering that question in the affirmative." 32Link to the text of the note Finally, the presence of
an alternative remedy "alone may limit the power of the Judiciary to infer a new Bivens cause of action."
33Link to the text of the note Applying this test, the Court dismissed the detainees' detention policy
claims. 34Link to the text of the note Those claims, which challenged conditions of confinement imposed
after a catastrophic terrorist attack, bore "little resemblance to the three Bivens claims the Court ha[d]
approved in the past." 35Link to the text of the note Thus they arose in a new context, prompting a
consideration of special factors that amply weighed against permitting a Bivens action. Allowing a Bivens
suit would "requir[e] an inquiry into sensitive issues of national security" and would occasion interference
with "sensitive functions of the Executive Branch." 36Link to the text of the note Further, in light of
Congress's "frequent and intense" interest in the MDC, the legislature's failure to enact a damages
remedy was telling. 37Link to the text of the note Finally, as an alternative remedy, the detainees might
have filed a habeas petition, although the Court acknowledged it had never held that habeas can be used
to challenge conditions of confinement. 38Link to the text of the note The Court considered separately the
prisoner abuse claim against MDC Warden Hasty. Here the new context question was closer: the suit
against Hasty had "significant parallels" to Carlson, which also involved a warden's mistreatment of a
prisoner. 39Link to the text of the note Still, the new context inquiry was "easily satisfied," 40Link to the
text of the note in part because the detainees' claim concerned the Fifth Amendment, not the Eighth, as in
Carlson. 41Link to the text of the note The Court then vacated and remanded on the prisoner abuse
claim, directing the courts below to conduct the special factors analysis. 42Link to the text of the note The
Court also held that each defendant was entitled to qualified immunity on the § 1985(3) civil conspiracy
claim. There is a longstanding circuit split on whether officials in the same government department can
conspire with each other, the Court noted. 43Link to the text of the note It would be "unfair," [*317] the
Court explained, "to subject officers to damages liability when even 'judges . . . disagree.'" 44Link to the
text of the note Justice Breyer dissented. 45Link to the text of the note The Court erred at each step in its
analysis, he argued. 46Link to the text of the note First, the context was not new. Justice Breyer criticized
in particular the Court's distinguishing of Carlson. On the prisoner abuse claim, "the only difference in
constitutional scope consist[ed] of a circumstance" -- the lack of a conviction -- "that ma[de] the violation
here worse." 47Link to the text of the note Second, there was likely no alternative remedy available to
persons detained under a "communications blackout." 48Link to the text of the note Third, there were no
special factors counselling hesitation. He regarded each factor discussed by the Court as
nondeterminative. 49Link to the text of the note Justice Breyer did not share the Court's aversion to
Bivens. 50Link to the text of the note Because 42 U.S.C. § 1983 provides a damages remedy to those
whose constitutional rights are infringed by state officials, the absence of a Bivens remedy would "amount
to a constitutional anomaly." 51Link to the text of the note He rejected "the Court's strongest argument":
"that Bivens should not apply to policy-related actions taken in times of national-security need." 52Link to
the text of the note Invoking Korematsu v. United States, 53Link to the text of the note he concluded his
dissent by observing that Bivens actions may prove essential when the government claims wartime
exigency as an excuse. 54Link to the text of the note "Cases that get distinguished often enough are
commonly said to die -- or at least to suffer near-death experiences." 55Link to the text of the note So too
for Bivens, Davis, and Carlson. Through Abbasi and its forebears, those cases have "slowly become
mere ghosts of their former selves, barely clinging to [*318] existence." 56Link to the text of the note The
Court's decision in Abbasi hastens the spectral process. Most actions will not survive its three-part test,
due in part to Abbasi's unorthodox manner of distinguishing cases. If the Court wants to persist in
distinguishing Bivens at every turn, in the interest of judicial candor and litigative efficiency it should hold
that the Bivens action is limited to the facts of its original three Bivens decisions. The Court is already
close to limiting the Bivens cause of action to the circumstances of Bivens, Davis, and Carlson, as it will
be very difficult for any case not presenting those facts to survive Abbasi's threepart test. 57Link to the
text of the note Consider the new context analysis and the Court's distinguishing of Carlson. Despite the
"modest" 58Link to the text of the note difference between the warden claims in Carlson and Abbasi, the
Court found the new context inquiry "easily satisfied." 59Link to the text of the note As Justice Breyer
observed, the principal difference between the two cases -- that Carlson involved the Eighth Amendment
and Abbasi the Fifth -- served only to make "the violation here worse." 60Link to the text of the note
Detainees, unlike convicted prisoners, cannot invoke the Cruel and Unusual Punishments Clause only
because they cannot, in a legal sense, be punished at all. 61Link to the text of the note The new context
inquiry is quite exacting if the Court can distinguish Carlson on this ground. 62Link to the text of the note
Often then the context will be new, prompting a court to ask whether a sufficient alternative remedy exists.
After Abbasi, an alternative remedy like habeas may suffice even if: (1) the plaintiffs, held
incommunicado, had no way to avail themselves of the remedy; 63Link to the text of the note (2) the
nation was so anxious that a court might have hesitated to grant relief; 64Link to the text of the note and
(3) there is a credible argument that the suggested remedy did not, as a [*319] matter of law, exist. 65Link
to the text of the note This is a lenient standard. Further, even the absence of alternative relief may
undermine a Bivens action. In Abbasi, the Court cited as a special factor Congress's failure to enact a
damages remedy for the alleged abuse at the MDC. 66Link to the text of the note If either the existence or
absence of an alternative remedy can defeat a claim, Bivens plaintiffs are in a double bind. Absent the
new context inquiry, it is unlikely that even Bivens, Davis, or Carlson would survive the Abbasi Court's
test. At a minimum the alternative remedy available in each case would likely suffice to defeat a Bivens
claim. Webster Bivens had state trespass law. 67Link to the text of the note A modern-day plaintiff in
Shirley Davis's shoes could invoke the Congressional Accountability Act of 1995. 68Link to the text of the
note The Carlson plaintiff could sue under a federal tort statute. 69Link to the text of the note When the
Court writes that the analysis in its three Bivens cases might have been different if decided today, 70Link
to the text of the note it's true not only because the background principles governing implied causes of
action have changed. Without a saving clause -- the new context inquiry -- those cases would not survive
Abbasi. This is an unusual way to distinguish cases. On one familiar theory, to distinguish a precedent a
court will take a rule from an earlier case and add a condition. But the refined rule must fit the facts and
outcome of the earlier case. 71Link to the text of the note Soon after Bivens was decided, for example,
some lower courts held that its implied cause of action was limited to Fourth Amendment violations.
72Link to the text of the note That narrow rule fit the facts and outcome of Bivens, at least until Davis was
decided. In contrast, Abbasi's alternative remedy inquiry likely precludes the outcomes of Bivens, Davis,
and [*320] Carlson. So the Court has grandfathered them in as "old contexts," legacy exceptions to the
general rule. This unusual manner of distinguishing is understandable, because there is no coherent
theory that would allow a remedy on the facts of Bivens, Davis, and Carlson and only on those facts. In
other words, there is no common logical thread that links those three cases and also excludes the Court's
nine decisions rejecting Bivens claims. After deciding Bivens, the Court might have followed an internally
coherent course. It could have expanded the remedy into the federal-official equivalent of § 1983. 73Link
to the text of the note When its approach to implied causes of action shifted, the Court could have done
away with Bivens altogether. Or it could have found a justifiable middle ground, like "Bivens for only the
most egregious violations." 74Link to the text of the note The Court has done none of those things,
instead choosing to distinguish Bivens, one case at a time, for thirty-four years. Path dependence best
explains why some fact patterns support a Bivens action today and others not. 75Link to the text of the
note But that is a matter of chance -- that certain cases were heard in one era and others later -- and not
logic. If the Court wants to continue distinguishing Bivens, it could promote the values of judicial candor
and litigative efficiency by expressly limiting the Bivens action to the facts of Bivens, Davis, and Carlson.
76Link to the text of the note The Court acts candidly when it says what it means. 77Link to the text of the
note With Abbasi, the Court has sent its clearest signal yet that it wants to confine Bivens to its three old
contexts. But until the Court so states, Bivens will continue to provoke (or prolong) litigation that is unlikely
to succeed. 78Link to the text of the note [*321] The two Bivens cases that continue on remand after last
Term illustrate how clearer guidance would help resolve long-running litigation. Abbasi has lasted fifteen
years; the other, involving the cross-border shooting of a Mexican national, 79Link to the text of the note
has lasted seven. Both cases likely will be resolved against the plaintiffs -- eventually. On the prisoner
abuse claim in Abbasi, the Court described special factors and alternative remedies that will be difficult for
the plaintiffs to overcome. 80Link to the text of the note The cross-border case assuredly arises in a new
context. 81Link to the text of the note Yet that litigation alone has prompted more than a dozen opinions
at four stages of litigation, with more to come. 82Link to the text of the note The Court does occasionally
limit a disfavored decision to its facts in order to quiet litigation. 83Link to the text of the note In 1922, the
Court held that professional baseball teams, despite their "constantly repeated travelling" across
interstate lines, did not engage in interstate commerce and thus were exempt from the Sherman Antitrust
Act. 84Link to the text of the note Later the Court's conception of commerce changed, calling the 1922
holding into serious doubt. 85Link to the text of the note In a series of cases heard in the 1950s, the Court
refused either to extend baseball's antitrust exemption to similar forms of sport and entertainment 86Link
to the text of the note or to overrule the earlier decision, citing Congress's failure to act. 87Link to the text
of the note Still litigation persisted as parties argued for the extension of the exemption to new industries.
88Link to the text of the note [*322] Finally, seemingly exasperated by the failure of litigants and lower
courts to get the message, 89Link to the text of the note the Court made clear that its 1922 decision was
"specifically limit[ed] . . . to the facts there involved, i.e., the business of organized professional baseball."
90Link to the text of the note The Court could say the same for Bivens, Davis, and Carlson. Here as
there, the legal underpinnings of a precedent have eroded and the Court has stated that any extension
must be legislative, not judicial. 91Link to the text of the note Having refused to extend Bivens on nine
occasions yet apparently unwilling to overrule it outright, 92Link to the text of the note the explicit
limitation of Bivens, Davis, and Carlson to their facts is a logical next step. 93Link to the text of the note
The foregoing is offered in service of moving the Bivens doctrine to a more sensible resting place. But we
should be mindful that Bivens, unlike baseball, is not a game. It is deeply troubling that the Abbasi
plaintiffs and those like them are left without an effective remedy for constitutional wrongs by federal
officials. 94Link to the text of the note With Bivens now at a low ebb -- whether limited to its facts or not --
the courts are unlikely to afford relief in all but the narrowest circumstances. Abbasi makes plain that real
redress will be scant unless Congress acts. 95Link to the text of the note
 Ext-Bivens Key to Rights/Const.
Rights can only be vindicated and enforced by expansive Bivens doctrine
Blair 20 – JD-St. Louis
Daniel Blair, JD-Saint Louis University, One Step Away: How Hernández II Signals the Elimination of
Bivens, 64 St. Louis U. L.J. (2020), https://scholarship.law.slu.edu/lj/vol64/iss4/11

In light of the newest decision on the Bivens doctrine in Hernández v. Mesa (Hernández II),2 the Supreme
Court appears to be on the precipice of eliminating Bivens claims altogether. The elimination of Bivens
claims is even being explicitly called for by two of the Justices.3 Bivens claims are damages claims for
constitutional violations that are implied; the damages are implied because they have not been created by
Congress but are assumed to exist through constitutional interpretation.4 The implications of such a move
would be shocking to many people.
Bivens claims serve a vital role in protecting the U.S. Constitution. The nature of Bivens claims means
that Congress has not acted to authorize a remedy and state claims are not generally possible due to
preemption, therefore there is no other course of action to remedy a constitutional violation; in Justice
Harlan’s words “its damages or nothing.”5 Furthermore, Bivens claims provide a necessary deterrent to
constitutional violations from federal officers.6 Without the availability of Bivens claims to remedy
constitutional violations by federal officers, such officers would have near-limitless ability to violate
constitutional rights. Indeed, the earliest Bivens cases show just how necessary these claims are. In
Carlson, an inmate at a federal prison suffered serious injuries and died when the prison officials were
deliberately indifferent to a serious medical concern.7 In Bivens itself, the plaintiff claimed to have
“suffered great humiliation, embarrassment, and mental suffering” at the hands of federal officers for an
illegal search and seizure.8 In both of these cases, it was clear that if state officials had committed the
same action, claims would have been viable under § 1983.9 Under § 1983 claims, state officials are held
responsible for violations of federal constitutional rights.10 These claims serve as an important deterrent
to rampant abuses by federal officials.
Due to prior Supreme Court decisions, citizens are already unable to bring claims against federal officials
for policy choices they enact.11 If the Court were to eliminate Bivens claims altogether, then there would
likely be many scenarios in which individuals would have no legal recourse against a government which
oversteps its boundaries. The individual could not sue the officials who created a policy that violates
constitutional rights, nor could they sue the federal official who carries out such a policy. To go even
further, the individual would also have no protection against a federal official who violates both an official
policy as well as an individual’s constitutional rights.
For example, if an FBI agent took an action that clearly violated FBI policy and the federal constitution,
and a suspect dies, the family of that suspect would have no recourse against that agent. If the actions
were not a violation of a criminal statute, the most that could occur would be that the officer would be
fired. This is unacceptable. The absurdity of such a system that would allow for violations to be brought
against state officials who violate federal constitutional rights but not against federal officials who violate
those same rights is astounding. While some of the blame certainly lies with Congress, here, it is
important to note that Congress alone is not responsible for protecting constitutional rights.12 The
arbitrariness of such decisions certainly makes no legal sense and the Supreme Court should reverse its
current path.
 Ext-Judicial Remedy Key to Exec
Specifically—Shoring up independent judiciary through unilateral remedies is key
to the rule of law, and meaningful checks on the Executive
Vladeck 16 – Professor of Law at UT-Austin
Stephen I Vladeck, A. Dalton Cross Professor in Law at the University of Texas School of Law and a
nationally recognized expert on the federal courts, constitutional law, national security law, and military
justice. Professor Vladeck has argued multiple cases before the U.S. Supreme Court and the lower
federal courts; has served as an expert witness both in U.S. and foreign tribunals; and has been
repeatedly recognized for his influential and widely-cited legal scholarship, his prolific popular writing, his
teaching, and his service to the legal profession, and Robert C. Hilliard, et al., HERNANDEZ v. MESA,
2016 U.S. S. Ct. Briefs LEXIS 4499, Initial Brief of Appellant-Petitioner, On Writ of Certiorari to the United
States Court of Appeals for the Fifth Circuit, 2016

Finally, recognizing a cause of action here falls within the heartland of Bivens [*31] jurisprudence. Bivens
inferred a cause of action for damages in part to ensure a remedy for egregious Fourth Amendment
violations like the one alleged here. But a cause of action under Bivens also exists to vindicate the
Supremacy Clause's promise to keep the Executive within constitutional bounds --in this case, to
prevent more unlawful killings and to protect our basic right to be free from excessive force. See Bivens,
403 U.S. at 408 (Harlan, J., concurring in the judgment). Without a federal damages remedy , there
would be no remedy at all for the government's unjustified killing of an unarmed fifteen-year-old boy,
and no judicial check on the Executive in this context. With no Bivens action for an unlawful killing,
Fourth Amendment protections would be " merely precatory ," Davis v. Passman, 442 U.S. 228, 242
(1979), and the promise of the Supremacy Clause and the Constitution's guarantee of the rule of law
ring hollow . Nor do "special factors" militate against a Bivens remedy here. Because a judicial remedy
neither implicates national security nor jeopardizes international diplomacy, the only question is whether
this Court [*32] wants to leave this family with Bivens or "nothing." Bivens, 403 U.S. at 410 (Harlan, J.,
concurring in the judgment).
ARGUMENT I. The Fourth Amendment's prohibition on the unjustified use of deadly force applies to a cross-border shooting of an unarmed Mexican civilian in an enclosed area patrolled by federal agents. The last time this Court considered extraterritorial application of a constitutional provision, it rejected the argument that, "as applied to noncitizens, the Constitution necessarily stops where de jure sovereignty ends." Boumediene, 553 U.S. at 755. Instead, the Court surveyed its extraterritoriality jurisprudence and held that
"questions of extraterritoriality turn on objective factors and practical concerns, not formalism." Id. at 764. That same approach governs this case. The Fifth Circuit, however, concluded otherwise and instead assigned dispositive weight to the formalist analysis embraced by four Justices in Verdugo-Urquidez. But that approach would effectively limit Boumediene to its facts. And it ignores Justice Kennedy's concurring opinion in Verdugo-Urquidez [*33] , which "appl[ied]" a functional "extraterritoriality test" to the Fourth
Amendment's warrant requirement--the same test later adopted by the Court in Boumediene. Id. at 760. Under that test, the Fourth Amendment's separate prohibition on the unjustified use of deadly force applies in the narrow context presented in this case: a close-range shooting by a U.S. border agent standing on U.S. soil. There is nothing impracticable or anomalous about applying constitutional protection here. To the contrary, not doing so would create a lawless border zone, handing the Executive unchecked power to use
lethal force on innocent civilians just outside our gates. A. "Objective factors and practical concerns, not formalism," determine whether the Fourth Amendment applies. 1. The functionalist approach this Court articulated in Boumediene stretches back more than 100 years. It is embodied in cases arising out of different continents and centuries, and it extends to a wide array of constitutional provisions. Taken together, these cases repudiate the Fifth Circuit's strict sovereignty-based test. At "the dawn of the 20th century," in what
came to be known as [*34] the Insular Cases, this Court began developing its extraterritoriality jurisprudence by addressing whether the Constitution "applies in any territory that is not a State." Boumediene, 553 U.S. at 756.See, e.g., DeLima v. Bidwell, 182 U.S. 1 (1901);Dooley v. United States, 182 U.S. 222 (1901);Armstrong v. United States, 182 U.S. 243 (1901);Downes v. Bidwell, 182 U.S. 244 (1901);Haw. v. Mankichi, 190 U.S. 197 (1903);Dorr v. United States, 195 U.S. 138 (1904). Adopting a pragmatic approach, this
Court articulated "the doctrine of territorial incorporation," under which "certain fundamental personal [constitutional] rights" (but not all constitutional rights) apply to noncitizens in unincorporated territories. Boumediene, 553 U.S. at 757-58. "[N]oting the inherent practical difficulties of enforcing all constitutional provisions 'always and everywhere,'" the Court instead considered each provision individually, sensitive to the specific concerns presented in each case. Id. at 759 (quoting Balzac v. Porto Rico, 258 U.S. 298, 312 (1922)).
[*35] Functional considerations proved similarly "decisive" half a century later in Reid v. Covert, 354 U.S. 1 (1957), which held that the spouses of American servicemen living on military bases abroad were entitled to trial by jury. Boumediene, 533 U.S. at 760. Although the plurality opinion rested primarily on the petitioners' status as American citizens, two concurring opinions--"votes [that] were necessary to the Court's disposition"--instead relied on "practical considerations" unrelated to citizenship. Id. Justice Frankfurter's
concurrence rejected the "broad principle" that the Constitution has no application beyond the "limits of the United States," endorsing a flexible approach that looks at the "specific circumstances of each particular case." Reid, 354 U.S. at 54. Justice Harlan likewise rejected a "rigid and abstract rule," opting instead for pragmatic consideration of "the particular circumstances, the practical necessities, and the possible alternatives" presented, as well as whether enforcement would be "impractical and anomalous." Id. at 75. "The
question is one of judgment," he explained, "not compulsion. [*36] " Id. "Practical considerations [also] weighed heavily" in Johnson v. Eisentrager, 339 U.S. 763 (1950), which denied access to the writ of habeas corpus to "enemy aliens" imprisoned "in Germany during the Allied Powers' post-war occupation." Boumediene, 553 U.S. at 762. The Court's opinion "stressed the difficulties" of granting this right and the "practical barriers" it would pose. Id. at 762-63. Although the opinion includes language suggestive of "a formalistic,
sovereignty-based test," Boumediene "reject[ed] this reading," concluding instead that "practical considerations" were "integral" to Eisentrager's outcome. Id. at 762-63. Had Eisentrager adopted a "bright-line test," Boumediene emphasized, its holding would have been "inconsistent" with this Court's "functional approach to questions of extraterritoriality." Id. at 763-64. "De jure sovereignty is a factor that bears upon which constitutional guarantees apply" to a noncitizen, but it is not "the only relevant consideration in determining
the geographic reach of the Constitution." Id. at 764. [*37] Finally, Boumediene drew on Justice Kennedy's concurrence in Verdugo-Urquidez. Justice Kennedy expressly disagreed with the formalist reasoning of the four other Justices who joined the Verdugo-Urquidez opinion, and instead "appl[ied]" Justice Harlan's "'impracticable and anomalous' extraterritoriality test" to a warrantless search abroad. Id. at 760. Justice Kennedy listed several "conditions and considerations" that "would make adherence to the Fourth
Amendment's warrant requirement impracticable and anomalous," including "[t]he absence of local judges or magistrates available to issue warrants, the differing and perhaps unascertainable conceptions of reasonableness and privacy that prevail abroad, and the need to cooperate with foreign officials." Verdugo-Urquidez, 494 U.S. at 278. These practical considerations, he concluded, "all indicate that the Fourth Amendment's warrant requirement should not apply in Mexico as it does in this country," so federal agents need
not "obtain a warrant when searching the foreign home of a nonresident alien." Id. Boumediene observed that the "common thread uniting" this Court's [*38] extraterritoriality cases is their shared recognition that "questions of extraterritoriality turn on objective factors and practical concerns, not formalism." 553 U.S. at 764. Even if some cases could be read to suggest that constitutional protection of noncitizens necessarily stops where "de jure sovereignty" ends, the Court refused to read its cases "to conflict in this manner." Id.
Having rejected a "formal sovereignty-based test," Boumediene applied a functional framework and held that detainees in Guantanamo Bay, Cuba, are "entitled to the privilege of habeas corpus." Id. at 764, 771. The Court based its conclusion on objective factors and practical considerations, and found that the benefits of extraterritorial application outweighed the "costs to holding the Suspension Clause applicable," which were not "dispositive." Id. at 754, 769. 2. The Fifth Circuit's decision departs from this longstanding
functional approach. The court did not consider any of the pragmatic and context-specific considerations Boumediene identified as central to the extraterritoriality analysis. Nor did it ask whether applying constitutional [*39] protection to a close-range, cross-border shooting would be "impracticable and anomalous"--an inquiry Boumediene emphasized as critical, drawing on Justice Kennedy's concurrence in Verdugo-Urquidez and Justice Harlan's concurrence in Reid. Instead, the Fifth Circuit relied on selective portions of the
Court's opinion in Verdugo-Urquidez that did not represent the views of a majority of the Court. Verdugo-Urquidez held that the Fourth Amendment does not apply "to the search and seizure by United States agents of property that is owned by a nonresident alien and located in a foreign country." 494 U.S. at 261. The Court based this holding primarily on the Fourth Amendment's use of the phrase "the people," and reasoned that Verdugo-Urquidez "had no voluntary connection with this country that might place him among the
people."' Id. at 273. That reasoning, however, does not control this case. Although Justice Kennedy joined the Verdugo-Urquidez opinion (thus supplying the fifth vote), and did not believe that his views "depart[ed] in fundamental respect from the opinion of the Court," he wrote separately to explain why he [*40] disagreed with the formalist approach of the other four Justices who joined the majority in full. 494 U.S. at 275. He could not "place any weight on the reference to the people' in the Fourth Amendment." Id. at 276.
Instead, he focused on pragmatic considerations specific to the particular issue before the Court: whether "adherence to [the] warrant requirement" abroad would be "impracticable and anomalous." Id. at 278. By extending Verdugo-Urquidez's "significant voluntary connection" test beyond the warrant requirement--without asking whether extraterritorial application would be "impracticable and anomalous" under the circumstances--the Fifth Circuit disregarded the "common thread uniting" this Court's cases and flouted
Boumediene. 553 U.S. at 764. Under this Court's precedent, the Fourth Amendment's applicability to a deadly shooting at the U.S.-Mexico border "turn[s] on objective factors and practical concerns, not formalism." Id. B. Objective factors and practical concerns strongly favor applying Fourth Amendment protection in this context. Boumediene identified "at least three [*41] factors" relevant to the functional analysis: (1) "the citizenship and status" of the person claiming protection, (2) the "nature" and "physical location" where the
alleged violation "took place," and (3) the "practical obstacles inherent" in applying protection. Id. at 739, 766. To these can be added a fourth: whether the right asserted is "a fundamental precept of liberty," such as "freedom from unlawful restraint." Id. at 739. Applying these factors here generates a clear answer: The Fourth Amendment protects noncitizens against the arbitrary use of deadly force at the border, at least in the context of a close-range, cross-border shooting in a confined area patrolled by federal agents.

1. The right to life is the most basic precept of liberty. The most "fundamental personal rights" are the
most deserving of protection beyond our formal borders. Id. at 758;see Reid, 354 U.S. at 51-53
(Frankfurter, J., concurring in the judgment); Downes, 182 U.S. at 282-83. A person's "fundamental
interest in his own life need not be elaborated upon." Tennessee v. Garner, 471 U.S. 1, 9 (1985). [*42] It
is enough to say that "[t]he intrusiveness of a seizure by means of deadly force is unmatched"; that
preventing arbitrary, extrajudicial killing is of paramount concern to any civilized society; and hence
that "apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of
the Fourth Amendment." Id. at 7, 9. The right asserted here is as fundamental as they come.
2. Sergio was a civilian in a neighboring country and part of a shared border community. The case for
extraterritoriality here is stronger than in Boumediene with respect to the citizenship and status of the
person asserting the right. Unlike the plaintiffs there, Sergio Hernández was not an alleged enemy
combatant from halfway around the globe, but an unarmed civilian teenager from a friendly, neighboring
nation. As President George W. Bush once said, "the United States has no more important relationship in
the world than the one we have with Mexico"--"a relationship of unprecedented closeness and
cooperation." Remarks by President Bush and President Fox, N.Y. Times, Sept. 5, 2001,
http://nyti.ms/2fk865q. And Sergio's relationship [*43] to this country was closer still, for he was a member
of the El Paso-Juarez shared border community--"one of the largest binational regions in the world, with
2.5 million people." Semuels, Crossing the Mexican-American Border, Every Day, The Atlantic, Jan. 25,
2016, http://theatln.tc/2g6UOKn.
3. U.S. agents exercise permanent, unaccountable power at the border. Physical location and degree
of control likewise tilt in favor of extraterritorial application in this case. First, the challenged governmental
conduct took place entirely inside the territorial jurisdiction of the United States--an area where the U.S.
government has complete control, and where U.S. courts serve as a check on the unlawful exercise of
governmental power. Second, the injury caused by that conduct occurred "within feet" of U.S. sovereign
territory. App. 84a. Sergio was playing in an enclosed culvert heavily patrolled by federal agents, and had
just crossed the invisible borderline from the U.S. side when Agent Mesa fired his weapon. Had Agent
Mesa pulled the trigger a few seconds earlier, Sergio would have been in the United States.
Third, the cities separated by the culvert--El Paso and Juarez--have [*44] been inextricably linked for centuries, and remain so today. For many years they were just one city; only in 1848 did the Treaty of Guadalupe Hidalgo split them into two. But the cities continue to form a single metropolitan area, share a central business district, and are connected in countless other ways. OECD Regional Stakeholders Committee, The Paso del Norte Region, U.S.-Mexico: Self Evaluation (2009), http://bit.ly/2fLcE6M; see also Rice, Life on
the Line ("Unless you are right here, I don't think you can get how intertwined this community is."). To highlight just one: The Paso del Norte bridge, which spans the culvert where Sergio was shot and is jointly owned by the two nations, marks the daily commute for thousands of people. See Texas Dep't of Transp., Texas-Mexico International Bridges and Border Crossings (2013), http://bit.ly/2gLBqDE. Among them are "Mexican elementary kids heading to U.S. public schools, U.S. residents working in Ciudad Juarez," and
students living in Juarez "attending U.S. colleges and universities" in El Paso, Semuels, Crossing the Mexican American Border--many paying in-state tuition, Rice, Life on the Line. "[Up] [*45] to 1,000 kids legally cross the Paso Del Norte Bridge from Juarez to El Paso to go to school every day." Barron-Lopez, El Paso is Fighting to Reclaim the Border's Soul, Huffington Post, Aug. 9, 2015, http://huff.to/2fFzxa4 Because of the deep interconnectedness of the two communities, locals on both sides--including "the mayors [who]
represent these two cities"--regard the separation as "more or less a fiction." Leeser & Mocken, President Obama: Castner Connects The Past And Future, Huffington Post, Aug. 17, 2016, http://huff.to/2fVay0A. Similar sentiments prevail in border communities across the Southwest, in part because the U.S. has long "wielded military, political, and economic authority over northern Mexico." Bitran, Boumediene at the Border? The Constitution and Foreign Nationals on the U.S.-Mexico Border, 49 Harv. C.R.-C.L. L. Rev. 229, 244-
48 (2014);see Glover, Two Sides of a Border, One Community, Aspen Institute, June 1, 2016, http://bit.ly/2fogXVo ("The American and Mexican communities that live at the border are united by common geography, history, language, and aspirations."); St. John, Line in the Sand: A History of the [*46] U.S.-Mexico Border 93 (2011) (describing history of "[b]order towns, where border-straddling buildings and binational activity" make it "difficult to distinguish between U.S. and Mexican space"). Finally, as this case illustrates, U.S.
border agents routinely carry out their duties right next to, and even across, the formal U.S. border. Their presence--and the power they exercise--is not "transient," but "constant." Boumediene, 553 U.S. at 768-69;see App. 85a-86a. The Chief of the U.S. Border Patrol has acknowledged that U.S. border-security policy "extends our zone of security outward, ensuring that our physical border is not the first or last line of defense, but one of many." Testimony of Michael J. Fisher, Chief, United States Border Patrol, DHS, Feb. 15,
2011, http://bit.ly/2ghjpuk. That policy has resulted in agents firing weapons across the border with increasing frequency. In one recent five-year span, border agents "shot across the border at least ten times, killing a total of six Mexicans on Mexican soil." Frey, Over the Line. And because none of those agents set foot in Mexico, and the possibility of extradition is illusory, they are not "answerable [*47] to" any other sovereign. Boumediene, 553 U.S. at 768. So even if the "United States has no formal control or de facto
sovereignty over the Mexican side of the border, the heavy presence and regular activity of federal agents across a permanent border without any shared accountability weigh in favor of recognizing some constitutional reach." App. 86a.

4. Protecting against unreasonable deadly force at the border would be practicable, avoid anomalous
results, and provide a check on Executive power . Most importantly, this case triggers none of the
factors that make extraterritorial application of constitutional rights "impracticable and anomalous."
Boumediene, 553 U.S. at 760. Border patrol officers are already prohibited from using deadly force--on
anyone, anywhere--if unnecessary to prevent "the imminent danger of death or serious physical injury," 8
C.F.R. § 287.8(a)(2)(ii). So applying constitutional protection in this context "would not force agents to
change their conduct" to conform to new standards. App. 88a. It would simply create an enforcement
mechanism for rules already in place, thereby promoting [*48] consistency and uniform standards.
The government's certiorari-stage brief did not even assert that applying constitutional protection here would be impracticable or anomalous. It instead suggested that doing so would be unnecessary because extradition or criminal proceedings are possible. U.S. BIO 12. Yet it did not cite a single instance in which the United States has extradited a border officer to face charges stemming from on-duty incidents. And the lone example it gave of a domestic criminal prosecution was "the first Border Patrol agent to be prosecuted by
the Department of Justice for a cross-border shooting" in history, and the indictment was issued two months after the petition was filed in this case. Binelli, 10 Shots Across the Border, N.Y. Times, Mar. 3, 2016, http://nyti.ms/21KKuXM. Assuming such prosecutions might continue, they only confirm that there is no pragmatic reason to deny constitutional protection. If cross-border shootings fall within the "jurisdiction of the United States" under the federal murder statute, 18 U.S.C. § 1111(b), then why shouldn't the constitutional
prohibition on unjustified deadly force also apply? The government [*49] hasn't said. It offered a vague reference to diplomacy (at 13), but the only foreign nation affected supports a remedy in this case. Mexico Cert. Br. 7. Applying constitutional protection would thus prevent, not provoke, "friction with the host government." Boumediene, 553 U.S. at 770.

If anything, it would be anomalous not to afford constitutional protection here. On the government's
theory, the Fourth Amendment applies if a border agent (a) kills an American citizen on either side of the
border, (b) kills a foreign citizen with significant voluntary connections on either side of the border, or (c)
kills a foreign citizen on the U.S. side of the border. Only if the victim happens to be a foreign citizen
without significant voluntary connections, standing on the Mexican side of the border, would the Fourth
Amendment not apply. And even in that scenario, the government believes that the agent could be
criminally prosecuted. Such a patchwork regime might benefit Agent Mesa, but allowing "the applicability
of the Fourth Amendment" to "turn on [such] fortuitous circumstance[s]" has little to recommend it. Cf.
Verdugo-Urquidez, 494 U.S. at 272. [*50]
Nor would applying Fourth Amendment protection in this case subject activities like U.S. surveillance in Mexico or elsewhere to constitutional scrutiny. "This case addresses only the use of deadly force by U.S. Border Patrol agents in seizing individuals at and near the United States-Mexico border." Rodriguez v. Swartz, 111 F. Supp. 3d 1025, 1037 (D. Ariz. 2015). It does not involve extraterritoriality of the Fourth Amendment more broadly. Nor does it implicate national-security concerns, "divert the attention of military personnel
from other pressing tasks," Boumediene, 553 U.S. at 769, or interfere with immigration-related activities. See App. 36a (Prado, J., concurring) ("This is not a case involving a drone strike, an act of war on a distant battlefield, or law-enforcement conduct occurring entirely within another nation's territory."); Bitran, Boumediene at the Border?, 49 Harv. C.R.-C.L. L. Rev. at 257 ("[T]he case has no bearing on Congress's power to decide which noncitizens will be admitted to the United States."). The Fourth Amendment, moreover,
has a built-in mechanism to address unique concerns that may [*51] arise in the cross-border context: the substantive standard of reasonableness. Although some judges expressed concern below about the "line drawing" inherent in functionalism, App. 8a, courts have experience drawing lines in Fourth Amendment cases. This Court's cases, for example, already recognize that the border is not just a formal line, but includes "functional equivalents," which take into account objective factors like proximity to the border as well as
practical concerns. See Almeida-Sanchez v. United States, 413 U.S. 266, 272-73 (1973) (holding that roving patrol units "at least 20 miles north of the Mexican border" were not considered the "functional equivalents of border searches"); United States v. Martinez-Fuerte, 428 U.S. 543, 550 (1976) (holding that a less-intrusive permanent Border Patrol checkpoint "65-90 miles from the nearest points of the Mexican border" was justified by practical concerns). Nor is this mode of analysis unique to the border. Ordinary search-
and-seizure jurisprudence, through the doctrine of curtilage, recognizes that Fourth Amendment protection does not stop at the building's edge. This doctrine requires courts [*52] to consider such factors as "the proximity of the area claimed to be curtilage" and "whether the area is included within an enclosure," United States v. Dunn, 480 U.S. 294, 301 (1987), and has its origins in a case where the curtilage extended to the length of a "cannon-shot" from Fort Leavenworth, United States v. Stone, 69 U.S. (2 Wall.) 525, 534
(1864). The Court can draw upon this familiar doctrine to conclude that the Fourth Amendment's protection against unreasonable lethal force extends at least the length of a gunshot from the border.

While the costs of recognizing a Fourth Amendment right here are minimal, the costs of denying it are
high. "If the Constitution does not apply here, the only check on unlawful conduct would be that which the
Executive Branch provides"--either through extradition, criminal proceedings, or internal discipline (none
of which have yet proved up to the task). App. 87a-88a. At best, that regime "would permit a striking
anomaly in our tripartite system of government," allowing the Executive to operate "without legal
constraint" beyond that which is self-imposed, while damaging our relationship with an important [*53] ally
and border partner. Boumediene, 553 U.S. at 765. At worst, it would create "perverse and disturbing
incentives" for border officers, in effect telling them that if they simply ensure that Mexicans are standing
on the Mexican side of the border, they can shoot with impunity, free of constitutional constraints. App.
42a. That result would not only resurrect the territorial formalism that Boumediene rejected; it would
enable the Executive to " switch the Constitution on or off at will ," 553 U.S. at 727, producing "zones
of lawlessness where the fortuity of one's location at the time of a gunshot would mark the boundary
between liability and impunity," App. 42a (Prado, J., concurring). Boumediene does not permit that result.
II. Agent Mesa is not entitled to qualified immunity based on facts unknown to him at the time of the
shooting.
The Fifth Circuit held that Agent Mesa is immune from liability even if the Constitution applies. It did so
despite the fact that his conduct, as alleged, plainly violates even the most permissive standard for
exercising deadly force on unarmed civilians--a constitutional norm that has been [*54] clearly established
for decades. The court granted immunity on the theory that Mesa was not "reasonably warned" that it was
objectively unreasonable to shoot and kill an unarmed teenager because he later turned out to be "an
alien who had no significant voluntary connection to, and was not in, the United States" when he was
killed. App. 5a. But Mesa "did not know and could not have reasonably known when he fired the shot
whether Sergio was a U.S. citizen" or had significant voluntary connections to this country. CA5 Supp. Br.
46. And Mesa has never contended otherwise. See BIO 6-15. Federal officers are not entitled to qualified
immunity based on facts "unknown to the officer at the time of the incident." Pet. i.
A. Qualified immunity should not be granted or denied based on facts unknown to the officer at the time of the incident. This Court has long recognized that qualified immunity is "evaluated from an ex ante perspective." Saucier, 533 U.S. at 204. As the Court reiterated just last Term, "[t]he correct inquiry" assesses "the officer's conduct in the 'situation she confronted.'" Mullenix v. Luna, 136 S. Ct. 305, 309 (2015) [*55] (per curiam); see also Hope v. Pelzer, 536 U.S. 730, 746 (2002) (assessing officer's conduct "in the situation he
confronted"); Anderson v. Creighton, 483 U.S. 635, 641 (1987) (holding that the "relevant question" considers "the information [the officer] possessed" at the time). The Court has never held to the contrary. It has neither granted nor denied immunity for a constitutional violation based on later-discovered facts. Instead, the Court has consistently put itself in the officer's shoes at the time of the incident and asked whether the officer "acted in an objectively reasonably manner" given the information then available to him.
Messerschmidt v. Millender, 132 S. Ct. 1235, 1245 (2012). Thus, in deadly-force cases, the Court has asked what the officer "reasonably understood" the "fact[s]" to be "when [he] fired" his weapon. Mullenix, 136 S. Ct. at 312. That inquiry mirrors the substantive constitutional standard, which assesses the reasonableness of the conduct from "the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight," Graham v. Connor, 490 U.S. 386, 396 (1989), [*56] and considers only "the facts
available to the officer at the moment" of the incident, Illinois v. Rodriguez, 497 U.S. 177, 188 (1990). Consistent with this approach, lower courts have routinely refused to let litigants "shift[] the focus of the qualified immunity inquiry from the time of the conduct to its aftermath." Rhodes v. Robison, 408 F.3d 559, 570 (9th Cir. 2004);see Al-Turki v. Robinson, 762 F.3d 1188, 1194 (10th Cir. 2014) ("The main flaw in Defendant's argument is that she is focusing on the facts we now know," but "the pertinent question for determining
her entitlement to qualified immunity depends on the facts that were known at the time"; "then-unknown facts did not somehow make her retroactively unable to perceive [the unlawfulness of] her actions."); Lee v. Ferraro, 284 F.3d 1188, 1200 (11th Cir. 2002) ("[W]e do not use hindsight to judge the acts of police officers; we look at what they knew (or reasonably should have known) at the time of the act."). As the Ninth Circuit explained in a case where immunity was similarly asserted based on the victim's then-unknown legal
status, the fact that [*57] the person turned out to have been a parolee (and was thus entitled to fewer constitutional protections) "cannot justify" a search that was unlawful based on facts known at the time of the search. Moreno v. Baca, 431 F.3d 633, 642 (9th Cir. 2005). 3Link to the text of the note This ex ante rule can cut both ways--sometimes in favor of immunity, sometimes against it. The Ninth Circuit, for example, has granted immunity from liability for a constitutional [*58] violation after "identifying what information was
available to [the official] at the time he made his decision, as distinguished from" the "information brought to light after the fact and in litigation." Rudebusch, 313 F.3d at 519. The court explained that "the relevant inquiry is not whether, in hindsight, [he] acted unreasonably, but instead whether his decision was reasonable in light of the information that he possessed at the time." Id. The Eleventh Circuit has similarly recognized that an officer who uses what he reasonably (but mistakenly) believes to be lawful force will not be
denied immunity simply because "the force aggravates (however severely) a pre-existing condition the extent of which was unknown to the officer at the time." Lee, 284 F.3d at 1200. But nor will he be entitled to immunity for using objectively unreasonable force "simply because the fortuity of the circumstances protected the plaintiff from suffering more severe physical harm." Id. That approach is the only one that furthers qualified immunity's purposes: balancing "the need to hold public officials accountable when they exercise
power irresponsibly [*59] and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson, 555 U.S. at 231 (2009). Qualified immunity is a judge-made doctrine that seeks to protect officers when they lack "notice [that] their conduct is unlawful," Saucier, 533 U.S. at 206, giving them "breathing room to make reasonable but mistaken judgments," Messerschmidt, 132 S. Ct. at 1244. But it is not designed to shield wrongdoers from liability when "the unlawfulness of the
alleged conduct should have been apparent." Pelzer, 536 U.S. at 743. By focusing on the objective reasonableness of an officer's actions based on the information he possessed at the time--an inquiry the Court has called the "touchstone" of the doctrine, Anderson, 483 U.S. at 639--qualified immunity represents "the best attainable accommodation of [these] competing values," Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982). The Fifth Circuit's holding does not remotely serve the values underlying qualified immunity. It does not
adequately deter or redress officials' "lawless conduct, [*60] " id. at 819, because it allows federal agents to escape liability for reasons that did not bear on the reasonableness of the agents' actions at the time they were committed. Officers would be allowed to avoid liability even if they are "plainly incompetent," Mullenix, 136 S. Ct. at 308, or exhibit "obvious cruelty," Pelzer, 536 U.S. at 745--or even commit murder--"simply because the fortuity of the circumstances" end up creating some uncertainty about what the officer could
have known at the time, Lee, 284 F.3d at 1200. "[W]hen [he] fired", his weapon, Agent Mesa could not have known that Sergio was a citizen of Mexico, or that, by hiding behind the pillar, he had formally crossed into Mexico. Mullenix, 136 S. Ct. at 312. Those facts, therefore, are not relevant to whether Mesa was "on notice" that his conduct was unlawful. The Fifth Circuit's holding would also expose officials to additional liability because it incorporates consideration of facts not known to the officer at the time. Unless only
defendants, not plaintiffs, may rely on later-discovered facts, competent government officials [*61] may be subjected to suit based on after-the-fact discoveries about which they could not have known at the time, even if they otherwise acted reasonably. That makes no sense. The correct rule--the one adopted by the other circuits, and the one that is faithful to this Court's qualified-immunity jurisprudence--avoids these outcomes. By doing so, it advances (rather than undermines) the two competing interests at the heart of the
doctrine.

The problems with the Fifth Circuit's approach are best illustrated by way of a hypothetical. Recall that
Sergio was playing with friends when he was shot. Suppose that Mesa had fired his weapon and killed
two of them, rather than just Sergio. Suppose further that the other boy turned out to have been a U.S.
citizen--a friend or cousin of Sergio's from across town, say, or one of the half million U.S.-born children
living in Mexico. No one has ever claimed that Mesa would be entitled to qualified immunity in that
scenario. And for good reason: Is there any doubt that the law does not immunize the intentional
killing of unarmed U.S. citizens without any justification ten feet past the border, even if there is no
case directly on point? See United States v. Lanier, 520 U.S. 259, 271 (1997) [*62] ("The easiest cases
don't even arise. There has never been [a] case accusing welfare officials of selling foster children into
slavery; it does not follow that if such a case arose, the officials would be immune."); Souza v. Pina, 53
F.3d 423, 426 (1st Cir. 1995) ("[A] state actor cannot murder a citizen."). Mesa should not receive
immunity from a civil action brought by one boy but not the other, when the conduct was identical.
Or suppose Mesa had shot Sergio a few seconds earlier, and a land survey later showed that,
unbeknownst to Mesa, Sergio was on the U.S. side of the border. Indeed, in one recent cross-border
shooting case, the government introduced a survey showing that "the international border ran through
[the victim's] body such that the majority of his body was in Mexico upon death." Mot. to Dismiss at 6,
Nino v. United States, No. 13-469, Dkt. 43-1 (S.D. Cal. Dec. 16, 2014). If Sergio had turned out to be just
inside the border (or on the border), the Fifth Circuit's qualified-immunity answer would likely be different.
See Lynch v. Cannatella, 810 F.2d 1363, 1375 (5th Cir. 1987) (denying immunity because no reasonable
[*63] officer would think it lawful to inflict "gross physical abuse"--or "summary execution"--on excludable
aliens who had just crossed the border "in the absence of some articulable, rational public interest that
may be advanced by such conduct"); Martinez-Aguero v. Gonzalez, 459 F.3d 618, 626-27 (5th Cir. 2006)
(denying immunity because "Lynch plainly confers on aliens in disputes with border agents a right to be
free from excessive force, and no reasonable officer would believe it proper to beat a defenseless alien
without provocation").
It would be a bizarre immunity jurisprudence that drew such distinctions. If there is a public-policy interest
that is vindicated by making immunity turn on after-the-fact determinations about the victim's legal status,
ties to the U.S., and precise physical location, it is not obvious, and it has never been articulated by
anyone in this litigation. The better approach is the one this Court has consistently taken: making
immunity turn on the reasonableness of the officer's actions in light of his knowledge of the facts and law
at the time of the incident.
B. Agent Mesa is not entitled to qualified immunity. Rather [*64] than confront the question presented, the government attempted to rewrite it to focus on whether Sergio had a "clearly established" constitutional right. U.S. BIO I. But that is not the question, and it misapprehends the nature of the "clearly established" inquiry. That inquiry asks whether 'it would [have been] clear to a reasonable officer that his conduct was unlawful in the situation he confronted.'" Kingsley v. Hendrickson, 135 S. Ct. 2466, 2474 (2015) (emphasis
added)); see Hanrahan v. Doling, 331 F.3d 93, 99 (2d Cir. 2003) ("[C]ourts have repeatedly declined to frame the clearly established inquiry through the '20/20 vision of hindsight.'"). The Fifth Circuit, however, did not ask whether Mesa violated clearly established law based on what he knew (or reasonably should have known) in the situation he confronted, but instead used hindsight and asked whether he violated clearly established law based on what the facts later turned out to be. That was error. Under the proper analysis,
Mesa is not entitled to qualified immunity based on the allegations in the complaint because no reasonable officer would have believed it was lawful to [*65] kill an unarmed civilian who posed no threat to anyone. See App. 142a (alleging that Sergio "was defenseless, was offering no resistance, had no weapon of any kind, and had not nor was threatening Mesa, or any third party, with harm, deadly or otherwise"). Few things are as clearly established as the principle that an officer "may not seize an unarmed, nondangerous
suspect by shooting him dead." Garner, 471 U.S. at 11. That is true whether viewed through the rubric of the Fourth Amendment or the Fifth Amendment. See Torres v. City of Madera, 648 F.3d 1119, 1128 (9th Cir. 2011); K.H. Through Murphy v. Morgan, 914 F.2d 846, 848 (7th Cir. 1990) (Posner, J.) ("One of the less controversial aspects of the due process clause is its implicit prohibition against a public officer's intentionally killing a person, or seriously impairing the person's health, without any justification."). Mesa would like
an exemption from this clearly established prohibition on unjustified deadly force because no reasonable officer would have known that Sergio was a Mexican national with no substantial ties to the U.S. Roughly one million U. [*66] S. citizens live in Mexico, including more than 500,000 children, many of whom were born in American border cities like El Paso, but whose families are Mexican and reside across the border in Mexico. See U.S. State Department, U.S. Relations With Mexico: Fact Sheet (July 2016),
http://1.usa.gov/1cogco2; Gomez Licon, U.S.-born kids lose basic rights in Mexico, Associated Press, July 18, 2012, http://bit.ly/1JbJNzq. Sergio could have been one of those children, playing with his friends on a summer day. Or he could have been one of the twenty million U.S. residents who visit Mexico every year, many from border communities. U.S. Relations With Mexico. Or one of the nearly 9,000 students who "live in Mexico and attend private and public high schools, conservatories, seminars or colleges in the United
States under F-1 student visas." Bartenstein, Students Commute From Mexican Border Town for U.S. Education, N.Y. Times: Student Journalism Institute, May 29, 2015, http://bit.ly/1RNfjFw. Had Sergio been any of those people, Mesa would not have known. Nor would it have been reasonable for Mesa to engage in racial profiling to assume Sergio was not one of these people. Millions [*67] of people with Sergio's skin tone are U.S. citizens, or have significant connection to the United States. United States v. Brignoni-Ponce,
422 U.S. 873, 886 (1975) ("Large numbers of native-born and naturalized citizens have the physical characteristics identified with Mexican ancestry."). And this Court has rejected the contention that, "in the areas adjacent to the Mexican border, a person's apparent ancestry alone justifies [the] belief that he or she is an alien." Id. at 877. Nor are Border Patrol agents trained to take any of these facts into account when deciding whether to use lethal force. They are required by law to focus on objective risk factors in making that
determination--not the citizenship of the subject, whether they have significant connections to the U.S., or whether they happen to be on one side of the border as opposed to the other. See 8 C.F.R. §§ 287.8(a)(1)(iii) & (2). These regulations are "[r]elevant to the question" whether Mesa had "fair warning" of the "wrongful character of [his] conduct," regardless of whether they were treated by Border Patrol agents as "merely a sham" they [*68] "could ignore . . . with impunity." Pelzer, 536 U.S. at 743-44. Having been trained to
comply with these regulations (as well as the Fourth Amendment), and lacking information about Sergio's legal status, a reasonable officer in these circumstances "could be expected to know" that killing an unarmed civilian teenager without justification "would violate statutory or constitutional rights" and restrain himself accordingly. Harlow, 457 U.S. at 800. In fact, this is a case where the wrongfulness of the conduct is "obvious." Pelzer, 536 U.S. at 745. The allegations, if proved, would constitute murder and violate
international law. See 18 U.S.C. § 1111; Tex. Penal Code § 19.02; Restatement (Third) of Foreign Relations Law of the United States § 702(c) & comment (f) (1987). It would turn the doctrine on its head to grant the officer qualified immunity based on later discoveries about citizenship, voluntary connections, and precise physical location--especially where "the official's conduct lies so obviously at the very core of what the Fourth Amendment prohibits." Lee, 284 F.3d at 1199-1200. [*69] III. Bivens provides a damages remedy
against Agent Mesa for the unlawful shooting of Sergio Hernández.

A federal damages action provides the Hernández family with their only possible remedy for a federal
agent's unjustified killing of their fifteen-year-old boy, and the sole means to ensure that the
Constitution and the rule of law remain supreme . The alternative is deeply unsettling: Without a
Bivens remedy, the family would have no recourse against the federal agent who killed their son, and
no mechanism would exist to test the legality of the agent's lethal action. Such a ruling would
discard 45 years of established law that Bivens provides an action to review the Executive's use of
force against civilians. Nor do any special factors counsel hesitation against providing the Hernández
family with a federal damages remedy to raise their excessive-force claim. No national-security or
international-diplomacy concerns militate against that remedy here.
A. The constitutional system of separated powers preserves federal courts' ability to infer a federal
damages remedy for the Hernández family's excessive-force claim [*70] .
1. The constitutional system of separated powers reflects the Framers' understanding that power
should not be concentrated and unchecked in one branch of government: they knew "that pendular
swings to and away from individual liberty were endemic to undivided uncontrolled power." Boumediene,
553 U.S. at 742. The federal judiciary is integral to this system because it has the ultimate duty to
ensure that both the executive and legislative branches abide by constitutional limits on their
authority. Presenting the Bill of Rights to Congress, James Madison explained:
If [these rights] are incorporated into the Constitution, independent tribunals of justice will consider
themselves in a peculiar manner the guardians of those rights ; they will be an impenetrable bulwark
against every assumption of power in the legislative or executive.
1 Annals of Cong. 439, 457 (1789) (Joseph Gales ed., 1834); see also The Federalist No. 78 (Alexander
Hamilton) (explaining that federal judges would "guard the Constitution and the rights of individuals");
Davis, 442 U.S. at 241 ("[T]he judiciary is clearly discernible as the primary [*71] means through
which [constitutional] rights may be enforced ."). The judiciary's power to inquire into whether
public officials have exceeded constitutional limits preserves both the supremacy of the
Constitution and the rule of law itself . See Gwyn, The Meaning of the Separation of Powers 42-43,
105-06 (1965) (documenting historical evidence that our separation of powers was intended to ensure the
"impartial rule of law").
As Justice Harlan emphasized, the "judiciary['s] . . . particular responsibility to assure the vindication of
constitutional interests" is the basis for the Bivens damages remedy. Bivens, 403 U.S. at 407 (Harlan, J.,
concurring in the judgment); see also id. at 392 (majority opinion) ("[W]here federally protected rights
have been invaded, it has been the rule from the beginning that courts will be alert to adjust their
remedies so as to grant the necessary relief."). Bivens ensures not only that victims of constitutional
torts receive redress for concrete harm but also that the judiciary is able to safeguard the Bill of
Rights and the separation of powers .
2. Inferring a damages remedy in this case follows [*72] directly from Bivens, which held that, even
though "the Fourth Amendment does not in so many words provide for its enforcement by an award of
money damages," the Constitution itself does. 403 U.S. at 396. In Bivens itself, as here, the claim was
that federal agents had deployed "unreasonable force" in violation of the Fourth Amendment. Id. at 389.
This Court held that federal courts , as the primary guarantors of constitutional rights, " may use any
available remedy to make good the wrong done ," at least where there are "no special factors
counseling hesitation ." Id. at 396.
The Hernández family's claim thus lies in the heartland of Bivens: federal officers violated Sergio's Fourth
Amendment right to be free of unreasonable (indeed deadly) force, and the family has no viable
alternative to a damages remedy arising from the Constitution. In Bivens, as Justice Harlan aptly
observed, it was " damages or nothing ." 403 U.S. at 409-10. The same is true here: It is Bivens "or
nothing" to provide some measure of redress for the death of the Hernández's fifteen-year-old son. Id. at
409. [*73]
A damages action against Agent Mesa is compelled here by the same imperative that drove Bivens--the
federal judiciary's solemn duty to protect individual liberties from encroachment by the other
branches . See id. at 407. It is precisely because of "the judiciary['s]" "particular responsibility to
assure the vindication of constitutional interests" that a federal court must not "await express
congressional authorization" before providing relief for a federal agent's use of excessive force
against civilians . Id. Sidelining the courts wouldn't just deprive victims of a remedy; it would
undermine the judiciary's duty--fundamental in our constitutional order and the Supremacy
Clause--to make good on the rule of law . See id.
 2NC Impact OV
Global liberal democracy turns and solves every impact
Diamond 95 – Senior Fellow at the Hoover Institution
Larry, Senior Fellow at the Hoover Institution and Coeditor of The Journal of Democracy , “Promoting
Democracy in the 1990s”, December, http://www.wilsoncenter.org/subsites/ccpdc/pubs/di/fr.htm

This hardly exhausts the lists of threats to our security and well-being in the coming years and decades.
In the former Yugoslavia nationalist aggression tears at the stability of Europe and could easily spread.
The flow of illegal drugs intensifies through increasingly powerful international crime syndicates that have
made common cause with authoritarian regimes and have utterly corrupted the institutions of tenuous,
democratic ones. Nuclear, chemical, and biological weapons continue to proliferate. The very source of
life on Earth, the global ecosystem, appears increasingly endangered. Most of these new and
unconventional threats to security are associated with or aggravated by the weakness or absence
of democracy , with its provisions for legality, accountability, popular sovereignty, and openness .
LESSONS OF THE TWENTIETH CENTURY The experience of this century offers important lessons.
Countries that govern themselves in a truly democratic fashion do not go to war with one another. They
do not aggress against their neighbors to aggrandize themselves or glorify their leaders. Democratic
governments do not ethnically "cleanse " their own populations, and they are much less likely to face
ethnic insurgency . Democracies do not sponsor terrorism against one another. They do not build
weapons of mass destruction to use on or to threaten one another. Democratic countries form more
reliable, open, and enduring trading partnerships . In the long run they offer better and more stable
climates for investment . They are more environmentally responsible because they must answer to
their own citizens, who organize to protest the destruction of their environments. They are better bets to
honor international treaties since they value legal obligations and because their openness makes it
much more difficult to breach agreements in secret. Precisely because, within their own borders , they
respect competition, civil liberties , property rights, and the rule of law , democracies are the only
reliable foundation on which a new world order of international security and prosperity can be
built.

Global rule of law solves extinction

Rhyne 58 – Former President of the American Bar Association
Charles, "Law Day Speech for Voice of America," http://www.abanet.org/publiced/lawday/rhyne58.html)

The tremendous yearning of all peoples for peace can only be answered by the use of law to replace
weapons in resolving international disputes . We in our country sincerely believe that mankind's best
hope for preventing the tragic consequences of nuclear -satellite-missile warfare is to persuade the
nations of the entire world to submit all disputes to tribunals of justice for all adjudication under the
rule of law . We lawyers of America would like to join lawyers from every nation in the world in fashioning
an international code of law so appealing that sentiment will compel its general acceptance .
Man's relation to man is the most neglected field of study, exploration and development in the world
community. It is also the most critical. The most important basic fact of our generation is that the rapid
advance of knowledge in science and technology has forced increased international relationships in
a shrunken and indivisible world. Men must either live together in peace or in modern war we will
surely die together . History teaches that the rule of law has enabled mankind to live together
peacefully within nations and it is clear that this same rule of law offers our best hope as a
mechanism to achieve and maintain peace between nations.
Solves the aff—prevents conflict escalation
Peerenboom, Prof Law – UCLA, ‘5
(Randall, “HUMAN RIGHTS AND RULE OF LAW: WHAT’S THE RELATIONSHIP?” Georgetown Journal
of International Law, Spring)

Rule of law is said to facilitate geopolitical stability and global peace .14 According to some, it may
help prevent wars from occurring in the first place .15 It also provides guidelines for how war is
carried out, limiting some of the worst atrocities associated with military conflicts. It offers the possibility of
holding accountable those who commit acts of aggression and violate humanitarian laws of war, and it
is central to the establishment of a rights-respecting post-conflict regime .
 2NC Democ—ROL Key
Rule of law enforced by an independent judiciary is the decisive factor for
democracy
Danopoulos 15 – Prof of Poli Sci at SJSU
Constantine P. Danopoulos, Professor of Political Science at San Jose State University, specialties are
comparative politics and international relations, Law Making, the Rule of Law, and the Quality of
Democracy in Greece, Journal of Modern Hellenism Vol. 31 (2015),
https://journals.sfu.ca/jmh/index.php/jmh/article/viewFile/25/27

The rule of law is arguable the single most essential dimension of quality democracy ; it is virtually
synonymous with democracy . It is the anchor upon which all other dimensions of the quality of
democracy depend for substance, enforceability , effectiveness, and meaning . The literature on the
rule of law leaves little room for doubt as to its seminal importance. Juan J. Linz and Alfred Stepan
view the rule of law as an “ indispensable condition.”2 Guillermo O’Donnell believes that “the rule of law
works intimately with other dimensions of the quality of democracy.” In his mind, “the rule of law is among
the essential pillar s upon which any high quality democracy rests. Without a vigorous rule of law,
defended by an independent judiciary , rights are not safe and the equality and dignity of all citizens
are at risk .” He adds: only under the rule of law “will the various agencies of electoral, societal, and
horizontal accountability function effectively , without obstruction and intimidation from powerful state
actors.”3 Thomas Carothers sees a “profound” relationship between the rule of law and liberal
democracy, asserting that “ the rule of law makes possible individual rights , which are at the core of
democracy .” Without the rule of law, he argues, “ major economic institutions would not function ,
and the government’s multifaceted involvement in the economy would be unfair, inefficient, and
opaque.”4 Larry Diamond and Leonardo Morlino are equally emphatic regarding the salience of the rule of
law and its impact on other dimensions of democratic quality. They assert that “ when the rule of law is
weak participation of the poor is suppressed and marginalized; civil groups may be unable to organize
and advocate; the resourceful and well connected have vastly more access to justice and power; [and]
corruption and abuse of power run rampant .”5
Simply stated, the rule of law means that there is a clear, understandable, stable, and self-sustaining
body of law based on universally accepted principles and precepts. It is nonretroactive, treats all citizens
equally regardless of class, economic status, gender, color, or creed, and it is applied fairly, evenly, and
consistently across the board by a network of judicial and law enforcement systems (including courts, the
bureaucracy, the police, and other law enforcement agencies) that are held accountable but enjoy
independence and professional esprit de corps. While dynamic and capable of meeting changing social
conditions, the fundamental/constitutional components of the law cannot be changed easily (say, through
simple majority vote) by relevant and constitutionally empowered bodies, but by a more elaborate process
that takes in to account the needs and rights of minorities. Diamond and Morlino leave no doubt that a
“good democracy” (by which they mean a liberal democracy ) must “have a strong, vigorous, diffuse,
self- sustaining rule of law.”6
Law experts agree that people are more likely to conform to a good and moral legal system than a
defective one; and that a good quality legal system encourages conformity . Conversely, people
cannot be expected to conform to laws they do not understand or see as arbitrary and unjust. Elucidating
on what constitutes “good law” a leading authority stresses, “The law is good if it produces prudential
reasons for action where and when this is advisable and if it marks out certain standards as socially
required where it is appropriate to do so…. If the law does so properly then it reinforces protection of
morally valuable possibilities and interests and encourages and supports worthwhile forms of social co-
operation.”7
 2NC Democ—Key to Global
Not resilient—Signaling rights protection now is key to perceived effectiveness
and global modeling—reverse-causal
Gunitsky 17
Seva Gunitsky, associate professor of political science at the University of Toronto, “These are the three
reasons fascism spread in 1930s America — and might spread again today,”
https://www.washingtonpost.com/news/monkey-cage/wp/2017/08/12/these-are-the-three-reasons-that-
fascism-spread-in-1930s-america-and-might-spread-again-today/?utm_term=.0d446eacb45c

There could be a resurgence of fascism in the U.S. Even though these three factors no longer exist,
similar problems lurk under the surface of modern political life, problems that could conceivably drive a
resurgence of fascist movements. The overall U.S. economy has been performing well, but levels of
inequality continue to rise. Wide areas of America are increasingly mired in permanent unemployment
and a massive drug epidemic. These are the sorts of economic conditions that drove fascist support in the
1930s; another major crisis like the Great Recession is likely to bolster nationalist appeals even more.
Few people worry about the communist threat today. Yet fear of communism has been replaced by fear of
globalists and elite technocrats (still often tinged with anti-Semitism) who supposedly seek to undermine
and control the lives of ordinary Americans. The recently uncovered National Security Council memo
reflected these sentiments clearly, arguing that Trump’s opposition is made up of a cabal of Islamists,
cultural Marxists and global bankers. The extreme right-wing blogger Mike Cernovich, who has been
praised by Donald Trump Jr., recently published a cartoon showing national security adviser H.R.
McMaster as a puppet manipulated by George Soros, who in turn was being manipulated by a monstrous
green hand labeled “Rothschilds,” a historically wealthy Jewish family. The third factor — the appearance
of an ideological rival that seemed to outperform America’s corrupt democracy — is today reflected most
clearly in fears over the rise of China. Over the past decade, numerous observers have argued that liberal
democracy is being supplanted by the kind of state capitalism exemplified by China, in which a
capitalist system of production is undergirded by state ownership and guidance, with little room for
democracy. Americans cannot be complacent about democracy Over the 20th century, democracy
spread from a few isolated outposts to most corners of the world. Today its superiority seems self-
evident to people who have been steeped in its moral virtues and material successes. But over the past
century, mere moral appeal has rarely been sufficient for its survival. It would be a convenient mistake to
accept the victory of democracy as a historical morality play, the predestined triumph of good over evil.
For much of the 20th century, democracy’s success depended on the existence of powerful countries
such as the United States , examples to be imitated . More than any appeal to freedom,
democracy spread because it promised economic prosperity and political stability. But when
democracies failed to deliver, as during the Great Depression, the tide of popular and elite
opinion shifted just as readily and just as quickly against democratic institutions . The key lesson
of the 20th century is that democracy is more fragile than we might like.

US judicial enforcement of civil rights is key to global democracy—Lynchpin of

the world order
Patton 19 – Resident Fellow at Stanford, quoting Larry Diamond, Prof. of Poli Sci-Stanford, and others
Jill Patton, citing Diamond and other scholars, An Existential Moment for Democracy? As American
leadership falters, scholars say, autocrats are on the rise., December 2019,
https://stanfordmag.org/contents/an-existential-moment-for-democracy

Don’t get too comfortable, warns Stanford political scientist Larry Diamond, ’73, MA ’78, PhD ’80. In his
new book, Ill Winds: Saving Democracy from Russian Rage, Chinese Ambition, and American
Complacency, Diamond describes how liberty is under assault in the United States and abroad, following
more than a decade in which democracies globally have weakened or failed. And he asserts that without
dramatic and immediate efforts to arrest the trend, democracy as a system of government is in peril.
“Not all democracies do a good job of defending liberty, but all the political systems that protect liberty are
democracies,” writes Diamond, a senior fellow at the Hoover Institution and at the Freeman Spogli
Institute for International Studies, who has studied and supported the world’s democracies for 45 years as
a scholar and an adviser to civic leaders, dissidents, human rights advocates and transition teams in 70
countries. “What saves citizens from the knock on the door in the dead of night, from the risk of being
silenced or removed, is a constitution, a robust body of laws, an independent judiciary to enforce them,
and a culture that insists on free elections, human rights, and human dignity.”
Glance around the world and you’ll see the danger signs: A prime minister in Great Britain trying to
suspend Parliament. Political polarization sweeping South Korea and Israel. An anti-immigrant, pro-
Russian presidential candidate gaining popularity in France, and ultranationalism reemerging in Germany.
An American president getting cozy with dictators. And democratic norms crumbling from Zambia to the
Philippines.
As recently as 2006, sixty-two percent of all nations were democracies—either in basic form, with
functional, free elections, or the more complex variety (what Diamond refers to as liberal democracies),
characterized by a broad commitment to individual rights, laws applied equally to all, protections for
minority groups and vigorous checks on government power. By 2017, the proportion had dropped to 51
percent.
“We are looking at a situation, at best, of tremendous danger and fragility,” Diamond says. He recalls the
1930s , when fascism took root across the world. “It’s not that yet, but if we allow complacency to prevail
in our thinking and our political postures, that’s where we could wind up.”
In the past, America has played a critical role on the global stage as a model for developing
democracies , a crusader for human rights and a bulwark against the spread of authoritarian
regimes . Former secretary of state Madeleine Albright once called America “the indispensable nation” for
its moral leadership. But unlike ever before , scholars say, America’s commitment to democracy is
flagging . At the same time, China and Russia are stepping vigorously into the void to promote an
entirely different approach —one featuring strong central leaders hostile to diversity and dissent .
The risk , Diamond says, is a century defined by the rise of the autocrat .
THE WINDS OF FREEDOM
When did American democracy begin? Some argue it was 1776, when the colonies declared
independence from England. Others say 1789, the year the new government adopted its constitution. It
could have been 1865, with the abolition of slavery, or 1920, with women’s suffrage. Diamond contends it
was 1965, when Congress passed the Voting Rights Act and presidential elections could plausibly be
considered “free and fair.”
The American experiment set off waves of democratic expansion and contraction. Western Europe
rounded out the first wave during the 1800s, before Nazi Germany and imperial Japan brought about a
nadir in the 1930s. Democracy expanded again in the mid-20th century, returning to Western Europe,
growing in Latin America, and taking hold in Japan and Turkey. A sustained upswing came in the mid-
1970s with the democratization of Portugal, Spain and Greece, and more growth in Latin America and
East Asia in the 1980s. The third boom peaked in the mid-2000s, by which time democracy had become
the dominant system in every part of the world except the Middle East.
“We have experienced an absolute transformation of our world’s polities in the direction of more
democratic processes over the last 50 to 75 years,” says Jeremy Weinstein, a political science professor
and director of the Stanford global studies division. “And recessions always seem to follow these
transformations. We’ve got to remember that people are better off and more free than they’ve ever been
in human history.”
And yet, Weinstein says, Diamond is “right to raise the alarm” about democracy’s recent decline—it
poses great risks to the world order .
“We have had a system of international governance since World War II that reflects the ascendance
of a set of commitments to individual rights and protections rooted in the U.N. system, emerging
over time because the United States—full of its imperfections—has been a more benevolent power
internationally than most empires historically,” says Weinstein, who served as deputy to the U.S.
ambassador to the United Nations from 2013 to 2015.
“A world without U.S. leadership and without an international architecture that’s rooted in things like the
Universal Declaration of Human Rights is a very different universe , and not one I’m sure most people
would want to live in.”
WHY POPULISTS ARE SO POPULAR
Everywhere Diamond looks, momentum seems to be gathering around authoritarian populists :
charismatic leaders who capitalize on discontent, sow distrust in the system and then consolidate power.
Even though most people living in a democratic system claim to prefer it, many believe their governments
are not working for them, which opens the door for populists to emerge.
Globalization may be partly to blame:In an increasingly interconnected world, governing has gotten
trickier. “If you have a constant flow of capital, people and trade goods, it’s harder to figure out what to do
in your own country,” says political science professor Anna Grzymala-Busse, who directs the Global
Populisms Project at the Freeman Spogli Institute. The increasing interdependence of the world’s
economies also limits the impact of any one nation’s policies. As mainstream politicians struggle to solve
“national” problems that are, in actuality, intertwined with the actions and economies of other countries,
voters can start to view them as inept.
Even though most people living in a democratic system claim to prefer it, many believe their governments
are not working for them, which opens the door for populists to emerge.
Globalization has stoked nationalism and anti-immigrant sentiment among citizens who fear not only the
economic but also the cultural changes that can accompany such shifts. There again, Grzymala-Busse
says, populists have stepped in, defining “the people” of a country narrowly and subjugating minority
interests. “Populist movements have this very corrosive impact on democracy,” she says.
Former Venezuelan president Hugo Chávez was a case in point. He first campaigned on the idea of
bringing power to the people and, in his early years, enabled by $100-per-barrel oil prices that filled the
Venezuelan treasury, he introduced reforms that improved living conditions for much of the country’s
populace. Those programs led to political successes that allowed him to extend his power. During his 14
years as president, from 1999 to 2013, Chavez rewrote the constitution, ended presidential term limits,
fired the judiciary, and usurped power over every branch of government and the military. Once considered
a stable democracy, Venezuela has been reclassified as an authori-tarian regime, a condition that
remains in effect under President Nicolás Maduro. Meanwhile, populist movements have advanced in
Turkey, Bolivia, Hungary and Poland.
“When you look at all this stuff, on balance,” Diamond says, “it’s not a period of good, uplifting, edifying
news about democracy in the world.”
AMERICAN DEMOCRACY: DEATH BY 1,000 CUTS?
In the United States, political rights and civil liberties have declined gradually over the past eight years,
according to Freedom House, a U.S.-based watchdog organization that monitors the practice of
democracy globally.
“The great challenges facing U.S. democracy did not commence with the inauguration of President
Donald Trump,” the organization’s president, Mike Abramowitz, observes in the 2019 Freedom in the
World report. “Intensifying political polarization, declining economic mobility, the outside influence of
special interests, and the diminished influence of fact-based reporting in favor of bellicose partisan media
were all problems afflicting the health of American democracy well before 2017.” He notes that the
George W. Bush administration infringed on individual rights with its surveillance programs that collected
people’s personal data in bulk, and he characterized the Obama administration’s crackdown on press
leaks
as “overzealous.”
But, Abramowitz says, “there remains little question that President Trump exerts an influence on
American politics that is straining our core values and testing the stability of our constitutional system. No
president in living memory has shown less respect for its tenets, norms and principles.” Albright has
called Trump “the first anti-democratic president in modern U.S. history.”
Some 86 percent of American voters think democracy is a good or very good system, and 78 percent say
democracy is always “preferable to any other kind of government,” according to a 2017 survey by the
nonpartisan Democracy Fund Voter Study Group. But according to a 2019 poll co-led by Diamond, only
30 percent believe American democracy works well. And when Democracy Fund researchers probed
further, they found that 24 percent of Americans feel positively about the idea of “a strong leader who
does not have to bother with Congress and elections.” Eighteen percent support the idea of military rule.
Those attitudes pair badly with America’s political polarization and a hollowing out of the civic sector.
“Basically, a lot of the former associations or civic networks that maintained ties between citizens and
elected officials have eroded,” says Didi Kuo, associate director for research at Stanford’s Center on
Democracy, Development, and the Rule of Law. She points to shrinking participation in volunteer
organizations and churches, the disintegration of labor unions, the decline of local and state media, and
the weakening of local and state party organizations.
“The way that affects people’s perceptions is that [they believe] there’s not much they can do about
political outcomes around them,” Kuo says. The result can be paralysis, or at least complacency.
What if the slide away from democracy continues? What if America weren’t a democracy?
The World Justice Project, a nongovernmental organization that assesses the rule of law in 126 countries,
is technically agnostic about the political system a country uses. Instead, it studies whether a government
is accountable, just and transparent, and whether it offers its citizens effective, accessible dispute
resolution. William Neukom, LLB ’67, WJP’s founder and CEO, observes that after having collected 10
years of data, researchers can say that liberal constitutional democracies are the most likely to have a
robust rule of law.
“Liberal democracy is great—and it’s complicated,” Neukom says. When the organization’s researchers
dive into their country-by-country analyses, each of which includes a thousand extended in-home
interviews, they’re better able to understand why Denmark has the best rule of law in the world,
Venezuela is at the bottom, and the United States ranks 20th. In the interviews, citizens describe
experiences they’ve had with police officers, government officials and the courts, and the impact of those
experiences on their lives. WJP’s 2019 Rule of Law Index shows middling to low scores for the United
States on legislative corruption, labor rights, regulatory delays and discrimination (broadly speaking and in
the courts).
What worries many scholars is that America’s commitment to its ideals seems to be weakening
just as the democratic order is being threatened by an assertive and influential global superpower—
China. “We’re no longer in this unipolar moment where the U.S. is ascendant, its norms and values are
being broadcast, and it has this attractive, influential role,” Weinstein says. “There’s competition for that
mantle. That’s really new .”
The turning point was China’s 2013 presidential election.
What worries many scholars is that America’s commitment to its ideals seems to be weakening just as the
democratic order is being threatened by an assertive and influential global superpower—China.
“Xi Jinping’s presidency represents a break with previous Chinese leaders toward the overpromotion of
the China model of authoritarian state capitalism , with a heavy emphasis on authoritarian as a
better model ,” Diamond says. It also signals a break from the peaceful transfer of power—the Chinese
legislature amended its constitution last year to eliminate term limits for the presidency.
China’s menace comes in part from its economic strength. Authoritarian leaders in, say, Uganda or
Cambodia, can point to the success of China’s model for economic development as an excuse to sacrifice
civil liberties in their quest to build a strong state.
“Of course, there’s no evidence that that kind of repression”—of Turkic Muslims in Xinjiang or protesters
in Hong Kong—“was necessary for China’s economic growth,” Diamond says. “There’s lots of evidence
that the democracies of Africa are growing more rapidly than the dictatorships of Africa, but none of that
matters. The leaders are looking for something to legitimize their concentration of power and their
crackdown on opposition and dissent.”
Russian mischief is also chipping away at the strength of Western democracies. The German Marshall
Fund, a U.S. think tank, has tracked 420 instances of Russian interference—through disinformation
campaigns, cyberattacks, political subversion, economic coercion and malign finance (such as money
laundering)—in 43 countries since 2000. More than 50 of those campaigns targeted the United States,
among them the effort to undermine the 2016 U.S. presidential election. Meanwhile, Diamond notes,
Russian trolls and bots were tweeting pro-Brexit messages from thousands of fake accounts.
But Diamond’s gaze is primarily trained on China. “There is no problem in international affairs—other than
climate change, and this is not irrelevant to climate change—that I worry about more than the U.S.-China
relationship,” he says. He recommends a U.S. posture of “constructive vigilance” that includes
cooperation on climate change and humanitarian crises, respect for the Chinese people, assertive
defense against intellectual property theft and “careful restraint so we don’t stumble into a military
conflict.”
GETTING PEOPLE TALKING
"Living through the Vietnam and Watergate era taught me two lifelong lessons,” Diamond writes. “That
political polarization and intolerance could prove poisonous to democracy, and that the instruments of
democracy—elections, the media, the congress, the courts —could restore its health .”
One way to improve democracy anywhere would be to engage citizens in deliberating with one another
more extensively before elections. James Fishkin, a professor of communication and director of the
Center for Deliberative Democracy, has used a process called deliberative polling 108 times in 28
countries since 1994 as a way to help governments find democratic solutions to controversial issues. The
method convenes a representative, randomly selected group of constituents who prepare discussions
using the same set of facts reviewed by a range of policy experts. In the end, a confidential questionnaire
gathers their opinions.
“Right now, democracy is under threat because it’s not plausibly connected to the will of the people,”
Fishkin says. Deliberative polling seeks to “create good conditions for the people to decide what they
really want in an evidence-based and reason-based way that is weighing competing alternatives.” Key to
the method is breaking out into small “deliberating microcosms,” he adds. “Once people feel their voice
matters, they’ll do all the hard work to think through the complexities of the issues.”
Most recently, Fishkin and Diamond paired up on America in One Room, a deliberative poll hosted in
Dallas in September. The event gathered 526 registered U.S. voters to consider together five topics at
issue in the 2020 presidential election: health care, immigration, the environment, the economy and
foreign policy. After spending four days together in small-group discussions, participants didn’t report
changing their minds all that much, but they said they had a better understanding of why others felt the
way they did.
And yet, before-and-after surveys showed the conversations had a moderating influence on voters on
certain issues. “Democratic support receded for a $15 federal minimum wage and for ‘Medicare for all,’ ”
the New York Times reported in its coverage of the event. “Republican support grew for rejoining the
Paris climate agreement and for protecting from deportation immigrants brought to the United States as
children.” Plus the gathering appeared to improve enthusiasm for democracy—at the end of the four days,
the proportion of participants who said they believe American democracy works well doubled, to 60
percent.
Another way to improve the character of America’s democracy, says Diamond, is ranked-choice voting,
an approach being explored by several states that encourages moderation, coalition building and civility in
politics. Instead of choosing one candidate, voters rank contenders in order of preference. If no one wins
a majority, the candidate with the fewest first-place votes is cut, and those votes are redistributed among
the remaining contenders. Eventually, a majority winner emerges. The process creates incentives for
politicians to appeal to broader constituencies, lessens the power of extremists, and opens up the field for
third-party candidates. “I think if you change the incentive structure,” Diamond says, “you will gradually
change the politics.”
His other recommendations run the gamut, from rooting out gerrymandering and expand-ing voting rights
to retiring the Electoral College. He also suggests reforming campaign finance and lobbying, and fixing
congressional rules that gum up representatives’ ability to work together.
A CLOUDY FUTURE AND AN OPPORTUNITY
Ian Morris, a Stanford classics professor, a historian and an archaeologist, says one of the most basic
assumptions underlying how people organize themselves is whether we believe that people are all more
or less the same or fundamentally different. The first assumption favors democracy; the second,
hierarchy. The notion that some people are inherently superior, more godlike and, thus, rightly more
powerful allowed monarchs, despots and craven emperors to subjugate people for most of the past
10,000 years, save for a limited democratic experiment in Greece 2,500 years ago and modern
democracies of the past 200 years.
In other words, as systems of government go, democracy is an outlier. In fact, Morris predicts the end of
democracy—perhaps in this century. He envisions its replacement by a ruling class of financially savvy,
meritocratic technocrats. “Is it reasonable to think that the 19th- and 20th-century model of democracy is
still going to be the most efficient and effective way of running a community 100 years from now?”
Down the line, relatively soon, Morris expects we’ll think it’s “crazy” to assume we might know better than
our phones do. The machines will be the “godlike kings” we submit to. “Democracy and decision-making
are going to look wildly different even within my lifetime,” Morris says.
Still, the sun hasn’t set on the era of free will. And if Diamond tilts his head at the right angle, he can
imagine a silver lining among the gathering storm clouds: We have a chance to see what the world is like
without U.S. leadership, and that may inspire a call to action.
“Democracies are not gifts or miracles ,” he writes. “They are painstakingly built forms of government,
and none of them are invincible if citizens succumb to cynicism and complacency in perilous times.”
 --xt AT: Trump Thumps
Constitutional enforcement by the Courts will be determinative, especially if
Trump loses in 2020
Wittes et al. 19 – Senior Fellow in Governance Studies at Brookings, Editor in Chief of Lawfare
Benjamin Wittes is a Senior Fellow in Governance Studies at the Brookings Institution and Editor in Chief
of Lawfare, Barney Frank served for 8 years in the MA House of Representatives and 32 years in the U.S.
House of Representatives, Caroline Fredrickson is the author of The Democracy Fix & Under the Bus:
How Working Women Are Being Run Over. She has worked in progressive advocacy, on Capitol Hill, and
in the White House, Elizabeth Holtzman is a former four-term Democratic congresswoman from New
York. She served on the House Judiciary Committee that investigated the role of President Richard M.
Nixon in the Watergate scandal and voted to impeach him, and Arturo Valenzuela is Senior International
Advisor at Covington & Burling LLP, is a political scientist who taught at Duke and Georgetown. He
previously served in both the Clinton and Obama administrations, Can the Constitution Survive Trump?,
FALL 2019, NO. 54, https://democracyjournal.org/magazine/54/can-the-constitution-survive-trump/

Can the Constitution survive Donald Trump? Caroline Fredrickson: I had thought more positively about
that after the election with the rise of the so-called Resistance and with the reaction to the first travel ban,
which was really inspiring. But as time has gone on and as the President has held at a certain level of
support that seems unshakeable, I have some worries that the Constitution would not be resilient enough
for two terms of Donald Trump. One term of Donald Trump, yes. And I think of how the courts have
withstood his challenges, have held for rule of law. We’ve had an incredibly vibrant press which has just
exposed much wrongdoing, and this also very inspiring. But I think as President Trump makes further
nominations to the courts and is moving them further and further to the right—and these are hard-right
ideologues—I’m very much worried about whether the Constitution has the resilience, when checks and
balances aren’t functioning, to actually be sustainable. So count me as a pessimist right now. Elizabeth
Holtzman: The Constitution will stand. What the country will look like is another story. Maybe we’ll survive
in some way, shape, or form one term of Donald Trump. But if he’s got another four years to add more
judges to the ranks, I’m very worried. The Constitution depends on how it’s interpreted. When we came
out of the civil rights movement, who would have thought that the last section of the Fourteenth
Amendment would be so eviscerated by the courts? But they’ve done that. Congress’s powers under the
Fourteenth Amendment have been shorn, dramatically. It’ll be even worse. The language will still be
there, but the ability to create a just society will be eviscerated. The problem is we have a Constitution
that has good provisions in it, but the courts have begun to turn it into a force of oppression in some
cases. We could see incursions regarding separation of church and state; those barriers are falling. Equal
rights, civil rights—the ability to deal with those issues through the courts and through the Congress could
be negated. Issues of basic democracy: one person, one vote. We have another Trump appointee to the
Supreme Court and what may happen is not only may a citizenship question be added to the census, but
the Court may decide that only citizens can be counted for purposes of apportionment. Well, stop and
think what that does to our democracy. Barney Frank: I think the answer is in part what happens with
Congress. If the Democrats hold the House and take back the Senate I would be much less worried.
There are two kinds of changes. One of the most dangerous is Mike Pompeo’s redefinition of basic
human rights. And then I think what you may well see, given the Supreme Court, is almost an
establishment of religion so that the First Amendment gets eviscerated because they’re going to elevate
religious belief over almost any other right. And that’s a serious cutback on affirmative action, on gay
people, on women, and on others because religion, as they interpret it, is very restrictive for a lot of those
groups. As far as things go structurally, I think that really depends on the Congress. I think that if
Democrats were to take back the Senate and keep the House, no. If, on the other hand, Trump got both
the Senate and the House back again, then I think there could be some serious erosion of how things
function. The one area that I’m not so worried about is freedom of expression. I know he yells at the press
but frankly the other problem is the press is much too thin-skinned. I mean, the First Amendment gives
you the right to say things. It doesn’t give you the right to say things and not have anybody yell at you. I
do think freedom of expression is going to be okay. I worry about individual rights, with this religious
empowerment. And if the Republicans have the House and Senate, at this point it won’t make any
difference whether he does it by executive action, really. The absence of any independence in the
Republican-controlled Congress almost vitiates the difference between an executive order and a statute.
Ben Wittes: So I find myself in the odd position of feeling pollyanna-ish compared to everything I’ve heard
so far. And also feeling like I’m perhaps in an entirely orthogonal to the universe I just heard described.
On the one hand, the answer to the question as posed is this: The Constitution survived the Confederacy,
the Constitution survived the War of 1812, and the White House burning to the ground. Yes, the
Constitution will survive this. The question is in what form does the Constitution survive this? And I think
on that point, with all due respect, I think we’re actually focusing on the wrong question so far. So I am
much less concerned than apparently the others here about conservative judges. The country has had
periods in which the judiciary has been very conservative before. We vacillate between partisan control of
the Senate and the White House and that creates ebbs and flows between the conservatism or liberalism
of the judiciary, and that does not especially trouble me, although I’m not a big fan of the jurisprudential
threats that I see going on now. Similarly, as Congressman Frank said moments ago, there isn’t a
profound difference between the judges that this President is appointing and the judges that a non-Trump
Republican President would be appointing or has appointed in the recent past. So I think one has to see
the judiciary or the squabbling over the judiciary as a longer-term feature of partisan polarization rather
than a particular feature of Donald Trump. There is an area where Donald Trump proposes a radical
departure from our traditional norms and traditions and it’s one we haven’t talked about, which is a
conversion of the presidency into a cult of personality. And the use of presidential powers in a fashion that
is qualitatively different from any of his predecessors across a number of different axes, particularly in the
sort of elevation of the expressive dimensions of the presidency over all other elements of the presidency.
And so I would suggest that if you’re asking how the Constitution will emerge from the period of Donald
Trump’s leadership, the question is whether those changes are adopted. And I’d argue that reelection is a
dramatic ratification in that regard, so the question of a second term matters. But also to what extent are
those changes adopted by successors? And those strike me as the deep tectonic questions of the impact
of Trump on the Constitution. Fredrickson: I think it’s hard to disconnect the aggrandizement of the
presidency from the judiciary because of the role of the unitary executive theory and how that’s enabled
the presidency. It’s not only Trump but it certainly has come to an extreme version of that under Donald
Trump. Where the Court is going may allow a further expansion of presidential powers which I think could
be quite dangerous. Arturo Valenzuela: I bring a different perspective to the conversation because my
academic work is comparative and not directly focused on the United States. I certainly would agree with
the notion should Trump be reelected we will continue to see an erosion of some of the fundamental
principles embodied in our Constitution that threaten our institutions and our democracy. I think it’s
important, however, to bear in mind that Trump didn’t come out of the blue. Indeed, his election, and how
he has been able to get away with his governing style, is a testament to the fact that there are some really
serious problems with American democracy, many of which are embodied in the Constitution itself. This
discussion is not new—it goes back to the founding with the Federalist Papers and reappeared many
times in the nineteenth century, particularly with the Civil War and its aftermath. It was discussed brilliantly
by Woodrow Wilson, our only President who was a scholar, who believed that the deadlocking emanating
from the doctrine of separation of powers required moving to a more parliamentary form of government.
During the Nixon impeachment, in view of the threshold of “high crimes and misdemeanors” for
impeachment, several House members, including representatives Jonathan Bingham, Edith Green and
Henry Reuss, proposed amendments to the Constitution that made a significant change to the
governance framework enshrined in the eighteenth century document—the Seventeenth Amendment on
the popular election of senators, rather than their designation by state legislators, and the Twenty-Second
Amendment limiting presidential reelection. We need to add to our discussion some of the fundamental
problems in our constitutional framework that need to be reckoned with, including an electoral system that
permits the election of President that does not represent a majority of the people and a Senate which is
one of the least representative bodies in the world. Only two presidents gained the presidency having lost
more of the popular vote than Trump did in 2016—Rutherford B. Hayes and Quincy Adams and what is
the meaning of popular sovereignty when Nebraska has 600,000 inhabitants and California has 40 million
and they each have two senators. My perspective on a lot of this comes from having studied the
breakdown of democratic regimes in other countries and particularly in Latin America, the one region of
the world that, at the beginning of the nineteenth century, copied the U.S. Constitution. In analyzing the
breakdown of democratic regimes there and elsewhere we see a recurring theme—the ambitions of
presidents that want to wield personal power, increased polarization, and the vanishing of a vital center,
when democrats with a small “d,” either because of opportunism or fear or cowardice abdicate their
responsibility to protect the Constitution and the rule of law. We have a system of government
characterized by stalemate right now, and we’ve had it for a long time. Every President, except two, since
the creation of the Republican Party in 1854, all the way up to 1954—100 years—had majorities of their
own party in Congress when they were elected. In 12 cases presidents were not able to retain majorities.
The two presidents who didn’t have majorities when they were elected were Cleveland and Hayes—failed
presidents by every account. Since 1954, we’ve had the reverse, divided government with few
exceptions, so we’ve had ongoing deadlock that has exacerbated polarization that is not being fanned by
“identity politics.” Frank: Here’s what I worry about with the Constitution, at least politically: It’s the
question of economic unhappiness. This is the second time in 90 years that economic dissatisfaction with
capitalism is threatening democracy. It did in the 1930s. When things got better in the 1940s, democracy
resurged. And now it’s going back again as the economy becomes less and less of a shared thing. I think
what you get is a tendency, not just here but elsewhere, toward a kind of unfortunate majoritarianism in
which the ethnic majority in any particular country is so unhappy with what it thinks is happening to it that
it disregards others. And I think that’s what worries me about the Constitution as well. One of the great
things about our constitutional history is that we went from rich white guys voting to full rights going to
everybody else. And what worries me here most, constitutionally, it is that this is the first time I see a
serious effort to throw back some of the rights, with the cancellation of the Voting Rights Act, with
Alabama on abortion, with a religious exemption that will override any gay rights, not just marriage, but
whether or not I have to hire somebody. Under Trump, for the first time, what we’re getting is not just a
temporary hold in the forward movement of these rights, but a serious moving of them back. And these
two trends come together because the dominant ethnic majority in any country is more and more likely to
feel they can go ahead and do what serves their interest and not be hindered by any kind of constitutional
norms, and the result is, as I said, various minorities are going to be not just stalled but will fall back.
Dionne: I’d love somebody to respond to Barney on that but can I sneak in a question? A friend of mine
who’s a student of Latin America argued that, right from the beginning, if we want to understand the
threats of Trump to our constitutional order, we’ll do far better to look to Latin America than to Europe. A
lot of people are talking about the far right in Europe, even Fascism in the 1940s, but the strong man in
Latin America is much more the model of Trump’s leadership. [to Valenzuela] I’m curious from your
comparative work how you would place him in those respects? Valenzuela: Latin America consists some
of the oldest independent nation states in the world. When the UN was founded in 1945, almost half of the
signatories from Latin America because, as with the United States, they were independent states and not
part of colonial empires. When they declared their independence from Spain, where did they turn, inspired
by ideals of the Enlightenment, to design a government framework of, by, and for the people? With the
failure of the French Revolution, they turned to the document written in Philadelphia. That’s why Latin
American countries serve as good case studies of the success or failure of American constitutional
design, albeit in countries with different antecedents. As you say, for the most part, democracy has not
been successful in Latin America. In the twentieth century from 1930 to the 1980s, 42 percent of all
changes in government were through military coups. The Cold War exacerbated the problem as a short-
lived democratic spring following World War II turned into a period of authoritarian rule. Chile, the country
that I studied the most, is one of the few exceptions in the region, preceding most European countries in
the establishment of long-term constitutional continuity based on the concept of popular sovereignty,
although it was not spared the authoritarian reversal of the Cold War era. What are the fundamental
problems with presidential democracy? For starters, presidents often think of themselves in monarchical
terms, even as they are constrained by co-equal branches of government. Prime ministers are far
different, at best primus inter pares, and there’s no prime minister in Europe that’s been succeeded by a
spouse or a child in that office—a far cry from the dynastic patterns of presidential government in Latin
America, a phenomena not absent from the U.S. experience. A second problem is that presidential
regimes are often what we can call double minority systems. As Latin America evolved from a two-party
system to multi-party system, leaders became presidents without the support of a majority of the voters,
and more likely than not their parties do not command majorities in the national legislature. So presidents
are elected thinking they represent all the people, but because they don’t, they have a hard time
governing. Richard Neustadt, one of my professors at Columbia, taught us that presidential power is in
essence the power to persuade, and that in turn is directly proportional to the popular support of the
President. In this era of democratic governance since the Cold War, there have only been three classic
military coups. And yet, 19 presidents have been forced to resign because they have been unable to
govern. Given this reality, much of my work in supporting constitutional reform efforts in the region
focused on finding the appropriate mechanisms to ward off governmental stalemate. Variants of these
ideas have been proposed in the United States as well: the merits of a single ballot to make sure that you
don’t in fact have divided government. Or avoiding perpetual elections, such as those held every two
years for the House. Why not have them every four years for the House, and eight years for the Senate,
and have them coincide with presidential elections? But perhaps even more to the point—how can we
address the problem of total stalemate or a failed government, or even a corrupt but not impeachable
President through votes of non-confidence or the calling of early elections, while devising specific
mechanisms to encourage the building of majority coalitions and governing through agreements and
compromise. Frank: But look at Bill Clinton and George W. Bush. The last six years of Clinton and the last
six years of Bush, a lot happened. This framework of deadlock and anger really starts when Obama
becomes President. So that’s why I don’t think it’s quite so structural, because people forget during
Clinton and Bush’s last six years, a great deal happened. We didn’t have these stalemates. I think it is
more that political anger comes out of the economy. But I don’t think that stalemate blockages describe
the period from Reagan on—until Obama. Holtzman: I’m not sure that the issue is one of gridlock. That is
not necessarily the bad thing that happens to us in a democracy. In fact, the Framers intended a kind of
gridlock, a kind of friction, they wanted that. So that doesn’t so much bother me. If we look at the Bush
years, we had a President who took us to war on a basis of lies, overruling the Constitution’s basic
concern about the war-making powers, lying to Congress and the American people. Frank: But with the
acquiescence of Congress. They were as guilty as he was. Holtzman: I did not say that. Frank: No, you
did, you said “lying to Congress.” Holtzman: But he also lied to the American people. So that is part of
also what I wanted to say. We had a President who took us into a war by virtue of these lies that was a
disaster for this country, cost a huge amount of money, undermined civil liberties in enormous ways,
engaged in the dehumanization of people through the torture program that was widely accepted. So, the
Bush presidency also had its horrors, some of which really reverberate today. I’m also concerned that the
President is starting to acculturate the American people into a certain point of view. He just said this
morning in one of his tweets: Oh, I’m going to be there [in the White House], what is it, six years, eight
years, 12 years. I mean it’s all just joking. And that’s another point that needs to be discussed: the use of
outside countries, outside forces to affect the election in terms of our democracy. Yeah, we can still have
our Constitution, but we’re going to have ways of undermining it, as we saw in the last election.
Fredrickson: I come from a liberal family, certainly my parents. But my grandparents were old-style
Republicans, and it’s shocking to me really how now there is no responsible Republican Party. How do
you actually function in a two-party system when you have one party that has become so bankrupt of
ethics, so bankrupt of the sense of norms and decencies that we have taken for granted? There was a
way of functioning, and I think the two members of Congress can speak to that. I worked on the Hill for a
long time, and there was a lot of antagonism, but there was a give-and-take and an ability to meet people
on the other side and reach compromise, and it seems right now that the Republican Party has said
whatever Trump does is fine. Either they agree that it’s worth it because of whatever dismantling of
federal regulations that they wanted, whatever dismantling of protections for minority populations that
they’ve wanted, or whether they’re just petrified of being attacked by Trump, either way it’s really
frightening. Valenzuela: It’s the abdication of democrats with a small “d.” Wittes: I guess I’m starting to
lose the thread of the conversation because this has relatively quickly devolved into everything that’s
wrong with our contemporary politics, most of which is not governed by the Constitution. So is the
question, “Does the Constitution require that people have ideas of civic virtue that are similar to mine?”
Apparently the answer to that question is “no,” because we have lots of scoundrels protecting mega-
scoundrels. If the question is: Does the Constitution require that politicians not lie, or even lie on fateful
things, apparently the answer to that is “no” as well. I do think if the question we’re trying to discuss is to
what extent the Constitution survives Trump, discussing all the things we don’t like about our
contemporary politics isn’t very useful. And I guess my plea would be: Can we focus this a little bit on
which part of this is people making small “d” democratic choices that we don’t approve of or don’t like, and
which part of this is actually constitutional? And I don’t think that’s an obvious question. The Constitution
requires that we not have unwise wars. And what everyone says about the Iraq war, it was unlike some
wars that preceded and succeeded it. It was authorized affirmatively by a Congress that voted in a
bipartisan fashion in both houses of Congress, so whatever the problem was there, it was not a
constitutional problem. Dionne: Could we go around the room briefly on the following question: To the
extent there is a threat to our constitutional order, how much is this specifically related to Trump, in your
view, and how much is this related to developments that preceded him and may continue after him,
related to everything from changes in the Court to behaviors in the parties? What is specific to Trump and
what is larger that we need to worry about? Fredrickson: I think a lot of this was incipient or latent in our
politics. A lot of the issues Congressman Frank mentioned earlier, about the racial anxieties and the white
ethnic base being affected by economic issues that super-charged some of the anxieties around race,
have been there. Trump has really taken advantage of that and exaggerated it in a way that has been
quite dramatic and frightening, but I think a lot of it has been there. Frank: I think it’s a combination. I think
it is the evolution of capitalism in the West where growth has now become a very mixed blessing. I think it
is the inequality, and I think it’s time we relook at Keynes and say we need to put redistribution back in
there as an equal good. And I think part of the problem is that neither Clinton nor Obama fully understood
that, and I think that created the conditions for Trump. But here’s where I would take a little bit of
exception. I was talking specifically in one area about constitutionalism, and that’s on individual rights.
That has been one of the best things about our Constitution: It is the change from 1787 to today on who is
fully recognized and has full rights. And there is a constitutional threat to that with the Court, backed by
the political one. And here’s where I think Trump is different: He is a triumphant majoritarianist. That is,
you have the ethnic majorities in democratic countries feeling threatened and angry, and the change is:
They no longer give any credence to the claims of others. They feel that everything in public policy has to
go to protecting them. Trump is the inciter of that and it affects constitutionalism in individual rights, it
affects constitutionalism in the fact that it does dilute somewhat the check and balance notion, namely
that there are a whole bunch of claimants. So I do think Trump, building on that economic dissatisfaction,
does play a role that, among other things, is substantially political but does have constitutional
implications because it leads to an unchecked majoritarianism.
 --xt AT: No US Backsliding
Crucial to prevent US democratic backsliding—Both necessary and sufficient
Mickey 17
Robert Mickey, Associate Professor of Political Science at University of Michigan-Ann Arbor, Steven
Levitsky, and Lucan Ahmad Way, FOREIGN AFFAIRS, Is America Still Safe for Democracy? Why the
United States Is in Danger of Backsliding, May, 2017

The election of Donald Trump as president of the United States—a man who has praised dictators,
encouraged violence among supporters, threatened to jail his rival, and labeled the mainstream media as
“the enemy”—has raised fears that the United States may be heading toward authoritarianism. While
predictions of a descent into fascism are overblown, the Trump presidency could push the United States
into a mild form of what we call “competitive authoritarianism”—a system in which meaningful democratic
institutions exist yet the government abuses state power to disadvantage its opponents. But the
challenges facing American democracy have been emerging for decades, long before Trump arrived on
the scene. Since the 1980s, deepening polarization and the radicalization of the Republican Party have
weakened the institutional foundations that have long safeguarded U.S. democracy—making a Trump
presidency considerably more dangerous today than it would have been in previous decades. There is
little reason to expect Americans’ commitment to democracy to serve as a safeguard against democratic
erosion. Paradoxically, the polarizing dynamics that now threaten democracy are rooted in the United
States’ belated democratization. It was only in the early 1970s—once the civil rights movement and the
federal government managed to stamp out authoritarianism in southern states—that the country truly
became democratic. Yet this process also helped divide Congress, realigning voters along racial lines and
pushing the Republican Party further to the right. The resulting polarization both facilitated Trump’s rise
and left democratic institutions more vulnerable to his autocratic behavior. The safeguards of democracy
may not come from the quarters one might expect. American society’s purported commitment to
democracy is no guarantee against backsliding; nor are constitutional checks and balances, the
bureaucracy, or the free press. Ultimately, it may be Trump’s ability to mobilize public support—
limited if his administration performs poorly, but far greater in the event of a war or a major terrorist
attack—that will determine American democracy’s fate. WHAT BACKSLIDING LOOKS LIKE If
democratic backsliding were to occur in the United States, it would not take the form of a coup d’état;
there would be no declaration of martial law or imposition of singleparty rule. Rather, the experience of
most contemporary autocracies suggests that it would take place through a series of little-noticed,
incremental steps, most of which are legal and many of which appear innocuous. Taken together ,
however, they would tilt the playing field in favor of the ruling party. The ease and degree to which
governments can accomplish this vary. Where democratic institutions and the rule of law are well
entrenched and civic and opposition forces are robust, as in the United States, abuse is both more difficult
to pull off and less consequential than it is in such countries as Russia, Turkey, and Venezuela.
Nevertheless, such abuse has occurred in the United States in the recent past, and so it cannot be ruled
out. The first type of abuse entails politicizing state institutions and deploying them against the opposition.
Modern states possess a variety of bodies that can investigate and punish wrongdoing by public officials
or private citizens—the courts; public prosecutors; legislative oversight committees; and law enforcement,
intelligence, tax, and regulatory agencies. Because these organs are designed to serve as neutral
arbiters, they present both a challenge and an opportunity for wouldbe authoritarians. To the extent that
investigative agencies remain independent, they may expose and even punish government abuse. If
controlled by loyalists, however, they can cover up official malfeasance and serve as potent weapons
against the government’s opponents. Elected autocrats thus have a powerful incentive to purge career
civil servants and other independent-minded officials and replace them with partisans. Agencies that
cannot be easily purged, such as the judiciary, may be politicized in other ways. Judges, for instance,
may be bribed, bullied, or blackmailed into compliance, or be publicly vilified as incompetent, corrupt, or
unpatriotic. In extreme cases, they may be targeted for impeachment. Packing state agencies is like
buying off the referees in a sporting match: not only can the home team avoid penalties, but it can also
subject its opponent to more of them. For one thing, the government can shield itself from investigations,
lawsuits, and criminal charges, and it can rest assured that unconstitutional behavior will go unchecked.
For another, it can selectively enforce the law, targeting rival politicians, businesses, and media outlets
while leaving allies (or those who remain quiet) alone. Vladimir Putin, for example, eliminated most of his
opponents after becoming president of Russia by prosecuting them for corruption while ignoring similar
behavior by his allies. A politicized police force, meanwhile, can be relied on to crack down on opposition
protesters while tolerating violence by pro-government thugs—a tactic that has proved effective in
Venezuela. Politicized intelligence agencies, for their part, can be used to spy on critics and dig up
blackmail material. Malaysia’s top opposition leader, Anwar Ibrahim, was sidelined in this way: after a
dubious police investigation, he was convicted of sodomy in 1999 and imprisoned. To be sure, even
bureaucracies in democratic countries are susceptible to politicization, but it is usually limited and
punished when egregious. In competitive authoritarian regimes, by contrast, it is systematic and
consequential. The second way elected autocrats may tilt the playing field is by neutralizing key parts of
civil society. Few contemporary autocracies seek to eliminate opposition outright. Rather, they attempt to
coopt, silence, or hobble groups that can mobilize it: media outlets, business leaders, labor unions,
religious associations, and so on. The easiest route is cooptation. Thus, most authoritarian governments
offer perks or outright bribes to major media, business, and religious figures. Friendly press outlets get
privileged access; favored business leaders receive profitable resource concessions or government
contracts. To handle those who resist, autocrats turn to the politicized authorities. Newspapers, television
networks, and websites that denounce government wrongdoing face libel or defamation suits or are
prosecuted for publishing material that supposedly promotes violence or threatens national security.
Business leaders critical of the government are investigated for tax fraud or other infractions, and
opposition politicians get mired in scandals dug up or simply invented by intelligence agencies. Sustained
harassment of this type can seriously weaken the opposition. The press may remain nominally
independent but quietly censor itself, as in Turkey and Venezuela. Businesspeople may withdraw from
politics rather than risk running afoul of tax or regulatory agencies, as in Russia. Over time, critical media
coverage diminishes, and with leading businesses and labor unions cowed into political inactivity,
opposition parties find it harder to fundraise, leaving them at a significant disadvantage. Finally, elected
autocrats often rewrite the rules of the political game—reforming the constitution, the electoral system, or
other institutions—to make it harder for their rivals to compete. Such reforms are often justified on the
grounds of combating corruption, cleaning up elections, or strengthening democracy, but their true aim is
more sinister. In Ecuador, for example, an electoral reform pushed through by the government of
President Rafael Correa in 2012 heavily restricted private campaign contributions, ostensibly to reduce
the corrupting influence of money in politics. But in reality, the reform benefited Correa’s governing party,
whose unregulated access to government resources gave it a massive advantage. In both Malaysia and
Zimbabwe, the government has invoked the goal of decentralization to justify reforms that increased the
electoral weight of sparsely populated rural areas at the expense of urban centers, where the opposition
was strongest. Such institutional reforms are particularly dangerous because they maintain a veneer of
legitimacy. Nevertheless, they systematically bias electoral outcomes and, in many cases, allow
incumbents to lock in advantages created by their initial abuse of power. A YOUNG DEMOCRACY It may
be tempting to assume that the United States’ centuries-old democracy is impervious to democratic
erosion, but such confidence is misplaced. In fact, liberal democracy—with full adult suffrage and broad
protection of civil and political liberties—is a relatively recent development in the United States. By
contemporary standards, the country became fully democratic only in the 1970s. Beginning in the 1890s,
after the Civil War and the failure of Reconstruction, Democratic politicians in each of the 11 states of the
old Confederacy built single-party, authoritarian enclaves. Having wrested some room to maneuver from
the Supreme Court, the executive branch, and their national party, conservative Democrats
disenfranchised blacks and many poorer white voters, repressed opposition parties, and imposed racially
separate—and significantly unfree—civic spheres. Their goal was to ensure cheap agricultural labor and
white supremacy, and they used state-sponsored violence to achieve it. For half a century, southern
states capitalized on their influence in Congress and the national Democratic Party to shield themselves
from outside reform efforts. In 1944, however, the U.S. Supreme Court struck down the region’s white-
only Democratic primaries. Beginning with that decision, black activists compelled and capitalized on
federal judicial rulings, congressional legislation, and national-party reforms to dismantle
disenfranchisement, segregation, and state repression. By the early 1970s, the southern authoritarians
had been defeated; today, some 6,000 black elected officials serve southern constituencies. But
American authoritarianism has not been just a southern phenomenon. From the time the FBI, the CIA,
and the National Security Agency were created, presidents used them to monitor White House staff,
journalists, political opponents, and activists. Between 1956 and 1971, the FBI launched more than 2,000
operations to discredit and disrupt black protest organizations, antiwar groups, and other perceived
threats. It even provided Dwight Eisenhower with derogatory information about Adlai Stevenson, his
Democratic rival in the 1952 election. Likewise, the Nixon administration deployed the U.S. Attorney
General’s Office and other agencies against its “enemies” in the Democratic Party and the media. And
congressional investigations into alleged subversion further threatened civil rights and liberties. Like
southern authoritarianism, the abuse of federal intelligence and law enforcement agencies largely ended
in the 1970s, in this case after the post-Watergate reforms. American democracy remains far from ideal.
Ex-felons, who are disproportionately black, are often prohibited from voting; many states are
experimenting with an array of new voting restrictions; and the concentration of campaign donations
among the wealthy raises serious concerns about how representative U.S. democracy truly is. Still, the
United States has been a bona fide multiracial democracy for almost half a century. Yet just as the United
States fulfilled its democratic promise, the foundations of the system began to weaken. Ironically, the
very process of democratization in the South generated the intense polarization that now threatens
American democracy. THE GREAT DIVIDE Scholars have long identified political polarization as a
central factor behind democratic breakdown. Extreme polarization leads politicians and their
supporters to view their rivals as illegitimate and, in some cases, as an existential threat. Often,
democratic norms weaken as politicians become willing to break the rules, cooperate with antidemocratic
extremists, and even tolerate or encourage violence in order to keep their rivals out of power. Few
democracies can survive for long under such conditions. Until recently, the United States seemed
immune from such threats. Indeed, traditions of restraint and cooperation helped the United States avoid
the kinds of partisan fights to the death that destroyed democracies in Germany and Spain in the 1930s
and Chile in the 1970s. In the United States, leading Democrats opposed President Franklin Roosevelt’s
efforts to pack the Supreme Court, and Republicans backed the investigation and impeachment of
President Richard Nixon. The party controlling the White House never used the full extent of
governmental powers against the other side. In fact, the systematic underutilization of power by
presidents and congressional majorities has long served as a vital source of democratic stability in
the United States. But with the passage of the Civil Rights Act and the Voting Rights Act in the 1960s,
the Democratic Party (long the guarantor of white supremacy) and the Republican Party (“the party of
Lincoln”) realigned national politics along racial lines. Southern blacks entered the electorate as
Democrats, and southern whites became increasingly Republican. Many white southerners voted
Republican for class reasons: the region’s incomes were rising, thus enhancing the appeal of the GOP’s
economic policies. But many chose the Republicans for their conservative stances on racial issues and
their appeals to “law and order.” This realignment helped change the composition of Congress. In the
ensuing decades, the South transformed from a one-party, Democratic region into a Republican-
dominated one. Whereas it once sent moderate Democrats to Congress, today it elects either black or
Hispanic liberal Democrats or, much more commonly, very conservative white Republicans. The
ideological polarization of Congress has other sources, to be sure, but the democratization of the South
represents a critical one. The result has been two much more ideologically homogeneous—and
disciplined—parties. Gone are crosscutting issues that temper partisan conflict, along with moderate
members within each party critical for crafting legislative deals. The triumph of democracy in the South
not only polarized Congress ideologically; it also polarized voters along party lines. Starting in the late
1960s, Democratic and Republican candidates began staking out increasingly distinctive views on public
policy, first on racial matters (such as affirmative action) and then on a wider range of issues. As the
political scientist Michael Tesler has argued, racially coded campaign appeals encourage voters to
evaluate government programs in terms of the social groups they imagine as benefiting from them. Over
time, white voters’ racial attitudes have increasingly shaped their views about public policy, even on
issues that seem unrelated to race, such as health care, Social Security, and taxes. Elected autocrats
have a powerful incentive to purge career civil servants and replace them with partisans. Taking their
cues from party leaders, voters are increasingly sorted into the ideologically “correct” party: few center-left
Republican or center-right Democratic voters remain. And a greater share of black voters back
Democratic candidates than ever before, while a greater share of white voters support Republicans.
Although just a small percentage of the American electorate is highly ideological (unlike their
representatives in Congress), voters now exhibit heightened animosity toward politicians and voters of the
other party—what the political scientists Alan Abramowitz and Steven Webster have termed “negative
partisanship.” Partisan polarization has been reinforced by the weakening of the establishment news
media, a critical component of democratic accountability. Until the 1990s, most Americans got their news
from a handful of trusted television networks. Politicians themselves relied heavily on the press to get the
public’s attention, and so they could ill afford to alienate journalists. But over the last 20 years, the media
have become increasingly polarized. The rise of Fox News kicked off the era of partisan news channels.
The Internet, meanwhile, has made it easier for people to seek out news that confirms their existing
beliefs and has played a role in the widespread closure of local and regional newspapers. Today,
Democrats and Republicans consume news from starkly different sources, and the traditional media’s
influence has declined precipitously. As a result, voters have grown more receptive to fake news and
more trusting of party spokespeople. When events are filtered through fragmented and polarized media,
Americans view nearly all political events through purely partisan lenses. Consider what happened after
Trump, breaking with traditional Republican policy, embraced Putin: one poll found that Putin’s favorability
rating among Republicans increased, from ten percent in July 2014 to 37 percent in December 2016. The
growing gap between the richest Americans and the rest of the country has also accentuated polarization.
U.S. income inequality has reached its highest level since the onset of the Great Depression. The
explosive growth of incomes at the top has increased support among wealthy voters and campaign
contributors for conservative economic policies, especially on taxes, and has moved Republican
legislators to the right. The stagnation of working-class wages over the past three decades, moreover,
has triggered a right-wing populist reaction with racial overtones, especially among rural whites, who have
directed their anger at liberal spending programs that they view as benefiting urban minorities. The
growing political differences over identity extend beyond the traditional black-white binary. Since the
1970s, increased immigration has added more Hispanic and Asian Americans to the electorate, largely as
Democrats, further solidifying the partisan gap between whites and nonwhites. These trends have
exacerbated anxieties among many white voters about losing their numerical, cultural, and political
preeminence—just as white southerners feared before democratization. In many respects, then, the
South’s racial politics have gone national. THE PERILS OF POLARIZATION Partisan polarization poses
several threats to U.S. democracy. First, it leads to gridlock, especially when different parties control the
legislative and executive branches. As polarization increases, Congress passes fewer and fewer laws and
leaves important issues unresolved. Such dysfunction has eroded public trust in political institutions, and
along partisan lines. Voters backing the party that does not currently occupy the White House have
astonishingly little trust in the government: in a 2010 poll conducted by the political scientists Marc
Hetherington and Thomas Rudolph, a majority of Republican voters surveyed said they “never” trust the
federal government. Gridlock, in turn, encourages presidents to pursue unilateral action on the edges of
constitutional limits. When there is divided government, with the party out of power determined to block
the president’s legislative agenda, frustrated presidents work around Congress. They expand their power
through executive orders and other unilateral measures, and they centralize their control of the federal
bureaucracy. At the same time, polarization makes it harder for Congress to exercise oversight of the
White House, since members have a hard time forging a collective, bipartisan response to executive
overreach. When the same party controls both Congress and the White House, legislators have little
incentive to exercise tough oversight of the president. Today, then, polarization reduces the chance that
congressional Republicans will constrain Trump. Although many party elites would prefer a more
predictable Republican in the White House, Trump’s strong support among the party’s voters means that
any serious opposition would probably split the party and encourage primary challenges, as well as
endanger the party’s ambitious conservative agenda. Congressional Republicans are thus unlikely to
follow in the footsteps of their predecessors who reined in Nixon. Indeed, so far, they have refused to
seriously investigate Trump’s conflicts of interest or accusations of collusion between his campaign and
the Russian government. Even more dangerous, the Republican Party has radicalized to the point of
becoming, in the words of the scholars Thomas Mann and Norman Ornstein, “dismissive of the legitimacy
of its political opposition.” Over the last two decades, many Republican elected officials, activists, and
media personalities have begun to treat their Democratic rivals as an existential threat—to national
security or their way of life—and have ceased to recognize them as legitimate. Trump himself rose to
political prominence by questioning President Barack Obama’s citizenship. During the 2016 campaign, he
repeatedly referred to his opponent, Hillary Clinton, as a criminal, and Republican leaders led chants of
“lock her up” at their party’s national convention. It was only in the early 1970s that the United States truly
became democratic. Parties that view their rivals as illegitimate are more likely to resort to extreme
measures to weaken them. Indeed, the Republican Party has increasingly abandoned established norms
of restraint and cooperation—key pillars of U.S. political stability—in favor of tactics that, while legal,
violate democratic traditions and raise the stakes of political conflict. House Republicans’ impeachment of
President Bill Clinton in 1998 represented an early instance. Senate Republicans’ refusal to hold
confirmation hearings for Obama’s Supreme Court nominee in 2016 marked another. At the state level,
Republicans have gone even further, passing laws aimed at disadvantaging their rivals. The most blatant
example comes from North Carolina, where in late 2016, the lameduck Republican legislature passed a
series of last-minute laws stripping powers from the newly elected Democratic governor. Meanwhile,
Republicans in more than a dozen states have introduced legislation to criminalize certain kinds of
protests. Even more disturbing are new restrictions on voting rights, which have been justified as efforts to
combat massive voter fraud, a problem that simply does not exist. These laws have been concentrated in
states where Republicans have recently taken control of the legislature but hold only a slim majority,
suggesting that their true purpose is to lower the turnout of voters likely to back Democratic candidates,
such as nonwhites. Trump, for his part, has given such initiatives a boost. Not only has he falsely
claimed that the 2016 election was marred by massive illegal voting, undermining public trust in the
electoral process, but his Department of Justice also looks poised to begin defending states facing
lawsuits over their suffrage restrictions. Trump has thus ascended to the presidency at an especially
perilous time for American democracy. His party, which controls both houses of Congress and 33
governorships, has increasingly turned to hardball tactics aimed at weakening the opposition. As
president, Trump himself has continued to violate democratic norms—attacking judges, the media, and
the legitimacy of the electoral process. Were his administration to engage in outright authoritarian
behavior, polarization has reduced the prospects that Congress would mobilize a bipartisan
resistance or that the public would turn against him en masse. THE FATE OF DEMOCRACY What
could halt the United States’ democratic erosion? There is little reason to expect Americans’
commitment to democracy to serve as a safeguard. Until the 1960s, most Americans tolerated serious
restrictions on democracy in the South. Nor should one expect the Constitution on its own to impede
backsliding. As the constitutional scholars Tom Ginsburg and Aziz Huq have argued, the ambiguities of
the U.S. Constitution leave considerable room for executive abuse on various fronts—including the
ability to pack government agencies with loyalists and appoint or dismiss U.S. attorneys for political
reasons. In the absence of informal norms of restraint and cooperation, even the best-designed
constitution cannot fully shield democracy. The press is also unlikely to prevent backsliding. The
mainstream media will continue to investigate and denounce wrongdoing in the Trump administration. But
in the current media environment, even revelations of serious abuse will likely be eagerly consumed by
Democrats and dismissed as partisan attacks by Trump supporters. Those pinning their hopes on
pushback from the bureaucracy are also likely to be disappointed. The United States lacks the kind of
powerful career civil service found in European democracies, and Republicans’ control of both the White
House and Congress limits GOP legislators’ incentive to monitor the president’s treatment of federal
agencies. Those staffing the agencies, meanwhile, may prove too intimidated to resist abuse by the White
House. Moreover, Congress controls the agencies’ budgets, and in January, House Republicans revived
the Holman Rule, an arcane 1876 provision that allows Congress to reduce any bureaucrat’s salary to $1.
The United States’ federal system of government and independent judiciary should provide more robust
defenses against backsliding. Although the extreme decentralization of U.S. elections makes them
uneven in quality, it also hampers any effort at coordinated electoral manipulation. And although U.S.
courts have often failed to defend individual rights in the past (as when they permitted the internment of
Japanese Americans during World War II), federal judges since the 1960s have generally strengthened
civil rights and civil liberties. Still, even U.S. courts are not immune to political pressures from other
branches of government. It may be tempting to assume that the United States’ centuries-old democracy is
impervious to democratic erosion, but such confidence is misplaced. Ultimately, the fate of American
democracy under Trump may hinge on contingent events. The greatest brake on backsliding today
is presidential unpopularity. Republican politicians troubled by Trump’s behavior but worried about
winning their party’s nomination will have an easier time opposing the president if his support among
Republican voters weakens. Declining support may also embolden federal judges to push back against
executive aggrandizements more aggressively. Thus, factors that undermine Trump’s popularity, such as
an economic crisis or a “Katrina moment”—a high-profile disaster for which the government is widely
viewed as responsible— may check his power. But events could also have the opposite effect. If a war or
a terrorist attack occurs, the commitment to civil liberties on the part of both politicians and the public will
likely weaken. Already, Trump has framed the independent judiciary and the independent press as
security threats, accusing the judge who struck down his initial travel ban of putting the country in “peril”
and describing the mainstream media as “enemies.” In the event of an attack comparable in scale to
those of 9/11, any efforts to crack down on the media, dissent, or ethnic and religious minorities would
face far fewer obstacles. The Trump presidency has punctured many Americans’ beliefs about their
country’s exceptionalism. U.S. democracy is not immune to backsliding. In fact, it now faces a
challenge that extends well beyond Trump: sustaining the multiracial democracy that was born half a
century ago. Few democracies have survived transitions in which historically dominant ethnic groups lose
their majority status. If American democracy manages to do that, it will prove exceptional indeed.
 --xt AT: No Model
No model decline --- lawyers still reference US law
Stumpf 13 (The Honorable Dr. István Stumpf is a Justice on the Constitutional Court of Hungary,
“Model, Resource, or Outlier? What Effect Has the U.S. Constitution Had on the Recently Adopted
Constitutions of Other Nations?” May 29, 2013, http://www.heritage.org/research/lecture/2013/05/model-
resource-or-outlier-what-effect-has-the-us-constitution-had-on-the-recently-adopted-constitutions-of-other-
nations)

American Constitutionalism
In summary, let me say that Hungary, of course, has different legal traditions from that of the United
States. The American Founding could start from scratch; no continental European nation has had an
opportunity to do that. In the last 20 years, Hungarian legal scholars and practitioners have developed
much stronger ties with European academia—the German influence is particularly strong—but as you
have seen, there is a very strong interest in the American constitutional heritage, and we should
by no means underestimate the United States Constitution as a model for other nations.
The basic notions of rule of law, separation of powers, natural law, judicial review, and human rights came
to life thanks to the example of the United States in the last 225 years, which in turn has influenced the
entirety of Western civilization, including Hungary. The theoretical foundations of American
constitutionalism, the works of American legal scholars, and the practice of the U.S. Supreme
Court are valuable resources and strong points of reference for lawyers in Hungary and all over the
world.
I am confident that it is for the benefit of the American academia to study from time to time how the
concepts and institutions of American constitutionalism flourish or face difficulties in other countries. It is
an honor for me to be here and take part in this conversation. As Hungary sets out to solidify its
commitment to truths that are self-evident, to the protection of unalienable rights, to a limited but effective
government, and to a renewed constitutionalism, I am convinced that we may in the future inspire one
another.
Let me close with this thought: There is much talk about a post-American era and American decline. As a
young scholar visiting America since the 1980s, I got to know this country through road trips across the
heartland as well as Ivy League university lecture halls, and I can tell you that the ideals of the
Founding Fathers, the principles of the U.S. Constitution, and the Declaration of Independence were
not and are not in decline. On the contrary, democracies around the world, old and new, need
them now more than ever.

Modeling is true for government structure questions

PILPG 8, the Public International Law & Policy Group (PILPG), is a global pro bono law firm that
provides legal assistance to foreign governments and international organizations on the negotiation and
implementation of peace agreements, the drafting and implementation of post-conflict constitutions, and
the creation and operation of war crimes tribunals. PILPG also assists states with the training of judges
and the drafting of legislation, “brief of the public international law & policy group as amicus curiae in
support of petitioners”,
http://www.americanbar.org/content/dam/aba/publishing/preview/publiced_preview_briefs_pdfs_09_10_0
8_1234_PetitionerAmCuPILPG.authcheckdam.pdf

iii. transnational judicial dialogue confirms this court’s leadership in promoting adherence to rule of law in
times of conflict.
PILPG’s on-the-ground experience demonstrating the leadership of this Court is confirmed by a study of
transnational judicial dialogue. Over the past halfcentury, the world’s constitutional courts have been
engaged in a rich and growing transnational judicial dialogue on a wide range of constitutional law issues.
See, e.g., Melissa A. Waters, Mediating Norms and Identity: The Role of Transnational Judicial Dialogue
in Creating and Enforcing International Law, 93 Geo. L.J. 487 (2005); Anne-Marie Slaughter, Judicial
Globalization, 40 Va. J. Int’l L. 1103 (2000). Courts around the world consider, discuss, and cite foreign
judicial decisions not out of a sense of legal obligation, but out of a developing sense that foreign
decisions are valuable resources in elucidating complex legal issues and suggesting new approaches to
common problems. See Waters, supra, at 493-94.
In this transnational judicial dialogue, the decisions of this Court have exercised a profound — and
profoundly positive — influence on the work of foreign and international courts. See generally
Constitutionalism and Rights: The Influence of the United States Constitution Abroad (Louis Henkin &
Albert J. Rosenthal eds., 1990); Anthony Lester, The Overseas Trade in the American Bill of Rights, 88
Colum. L. Rev. 537 (1988). As Anthony Lester of the British House of Lords has noted,
“there is a vigorous overseas trade in the Bill of Rights, in international and constitutional litigation
involving norms derived from American constitutional law. When life or liberty is at stake, the landmark
judgments of the Supreme Court of the United States, giving fresh meaning to the principles of the Bill of
Rights, are studied with as much attention in New Delhi or Strasbourg as they are in Washington, D.C.”
Id. at 541.
This Court’s overseas influence is not limited to the Bill of Rights. From Australia to India to Israel to the
United Kingdom, foreign courts have looked to the seminal decisions of this Court as support for
their own rulings upholding judicial review, enforcing separation of powers, and providing a
judicial check on the political branches.
Indeed, for foreign courts, this Court’s rulings in seminal cases such as Marbury v. Madison, 5 U.S. (1
Cranch) 137 (1803),4 Brown v. Board of Education, 347 U.S. 436 (1954),5 United States v. Nixon, 418
U.S. 683 (1974),6 and Roper v. Simmons, 543 U.S. 551 (2005)7 take on a special significance. Reliance
on the moral authority of this Court can provide invaluable support for those foreign courts
struggling to establish their own legitimacy, to shore up judicial authority against overreaching by
powerful executives, and to develop a strong rule of law within their own national legal systems .

Supreme Court key

Narasimhan, Ph D Candidate in Poli Sci @ Syracuse, ‘10
(Angela G, “A more global court? A call for a new perspective on judicial globalization and its effect on the
U.S. Supreme Court.” Studies in Law, Politics and Society, Special Issue Interdisciplinary Legal Studies:
The Next Generation. Pg. 123-151. Emerald Group Publishing)

Indeed, the greater political environment in which the Court operates has changed in recent decades.
Since the end of the Cold War, the American legal system has gained visibility abroad through the U.S.
involvement in constitution drafting and judicial reform. Although this involvement was originally a minor
part of American foreign aid and concentrated primarily on the new democracies of Europe and the
former Soviet Union, it became a primary focus of U.S. democracy assistance across the globe by the
late 1990s as attention turned to the importance of securing the rule of law in transitional countries
(Carothers, 2005). As a result, the prominence of our national judicial system quickly grew and members
of foreign and international courts became more familiar with and likely to consider its decisions
(Slaughter, 1998). Through these efforts, the U.S. system had a profound impact on the constitutional
structure of emerging democracies and new legal networks as the active exportation and influence of the
Bill of Rights abroad helped universalize human rights norms and led to international convergence on the
importance of their protection (Kelemen & Sibbitt, 2004). On a global scale, a rise in both formal and
informal interaction between the national judiciaries of the world has also been noted as a result of the
legal connections that were forged in the post–Cold War era (Ackerman, 1997). The development of an
active international community of judges and legal professionals has been part of what some scholars call
judicial globalization, a process in which national courts have become increasingly likely to communicate
and consult each others’ decisions (Slaughter, 1997). Although the consideration of foreign legal
decisions by the U.S. Supreme Court is a disputed practice, the travel schedules and international
commitments of its members reveal that they do participate in this global judicial community. While the
U.S. government's active role in post–Cold War judicial reform has resulted in greater visibility of the
Supreme Court and its decisions abroad (Scheppele, 2003), however, the question of whether its foreign
connections and new level of global prominence have had any feedback effect on the Court itself remains
largely unanswered. Within an increasingly global network of legal norms and actors, the U.S. role is
generally considered to be limited to that of an exporter, not an importer; when certain justices have
appeared to import foreign law by citing it in Court opinions, they have been politically vilified and
criticized by other justices and legal scholars. Existing literature on the Supreme Court largely mirrors this
emphasis, restricting its analysis of external influences on the Court to foreign law and the decisions by
certain justices to cite it. As a result, the possibility that changes brought about by judicial globalization
may have influenced the Court in other ways has been overlooked. This chapter calls for a more dynamic
perspective that measures these changes and investigates the full range of their potential effects on Court
decisions, as well as on the way that the justices consider their role within increasingly globalized legal
networks. First, it reviews the debate on foreign citations and proposes that we begin by considering
alternative theories of judicial decision-making when discussing their place in American constitutional law.
We need to look beyond justices’ ideology and conflicting views on constitutional interpretation to explain
their willingness to cite foreign law or not to fully capture the new set of pressures and choices that judicial
globalization may have created for Supreme Court justices. Second, this chapter identifies several models
of Supreme Court behavior that do so, in that they consider the role of external sources of influence on its
decisions, including domestic and international actors, norms, and institutions. These models can help us
understand the ways in which judicial globalization has the potential to expose the Court to global trends,
norms, or political priorities through interaction at both an individual level and an institutional level. Third, it
argues that we would also benefit by searching for evidence of judicial globalization in places other than
the justices’ opinions. The recent era of globalization, characterized by changes such as a rise in the
citation of Supreme Court decisions by foreign courts and international interest in its cases, has
transformed the broader social and political environment in which it operates and created new salient
audiences that may change the way that the justices approach and define their job. Finally, this chapter
concludes by noting that the domestic debate over foreign influences on the Supreme Court has attracted
attention and concern throughout the world, highlighting the globalized nature of legal networks and the
degree to which its members are invested in how much respect is given to the laws of international
organizations and other nations in our constitutional system. The backlash against American judicial
isolationism abroad has changed the stakes of any future efforts by the Court's members to define their
relationship with foreign counterparts, as it becomes apparent that those efforts have the potential to
affect its position within the global legal order and threaten its legitimacy abroad.

Trends
Narasimhan, Ph D Candidate in Poli Sci @ Syracuse, ‘10
(Angela G, “A more global court? A call for a new perspective on judicial globalization and its effect on the
U.S. Supreme Court.” Studies in Law, Politics and Society, Special Issue Interdisciplinary Legal Studies:
The Next Generation. Pg. 123-151. Emerald Group Publishing)

Jeffrey Toobin, a journalist and observer of the Court, has anecdotally noted the kind of link between
contemporary globalization and judicial behavior that merits further scholarly attention. In his book The
Nine, he suggests that the decision of particular justices to cite foreign law, such as Justice Kennedy, is
directly connected to changes in their worldview resulting from travel abroad (Toobin, 2007). He describes
Kennedy's experience teaching law over the summers in Salzburg, Austria, through a program of
McGeorge Law School, as resulting in “the connection that would transform his judicial career” (Toobin,
2007, p. 183). Furthermore, he links this transformation to the fact that this connection was made after the
end of the Cold War, during a period in which American legal expertise was sought from and exported to
emerging democracies around the world and programs like the Central European and Eurasian Law
Initiative (CEELI) of the American Bar Association were involved in American democracy promotion
efforts abroad. He notes that “most of the justices participated in some of these exchanges, but Kennedy
and O’Connor were by far the most active” and notes O’Connor's role in having “helped create” CEELI (p.
184). This is especially relevant because they are both considered moderate and have cast the deciding
vote in numerous important cases; former Justice O’Connor did so during her time on the Rehnquist
Court and Justice Kennedy on both the Rehnquist and Roberts Court. Thomas M. Keck (2004, p. 292)
emphasizes the important role of both justices on the Rehnquist Court, arguing that “the limits of judicial
activism – in both liberal and conservative directions – [have been] determined by O’Connor's and
Kennedy's constitutional vision.” Lee Epstein and Tonja Jacobs (2008, p. 41) also examine the impact of
what they call “super medians,” which they define as “justices so powerful that they are able to exercise
significant control over the outcome and content of Court decisions,” and identify Kennedy as a
noteworthy example. Even if an analysis of judicial globalization does nothing but confirm a link between
O’Connor and Kennedy's exposure to and participation in the globalized legal community and their
jurisprudence, their noted ability to change the direction of American constitutional law in recent years
renders that finding significant. Toobin's suggestion that the justices’ experience abroad during the 1990s
shaped their judicial career merits further attention not only for this reason but also because it is in line
with Slaughter's (2005) account of the impact that increased global judicial dialog has had on judges in
other domestic contexts. Furthermore, there is ample evidence that Washington was both a facilitator of
and active participant in this dialog. From 1995 to 1997, the Federal Judicial Center published a biannual
newsletter entitled the International Judicial Observer that was included with issues of its State-Federal
Judicial Observer. This newsletter provided a record of travel abroad by federal judges and the Supreme
Court justices, visits by foreign judges, international legal conferences, and developments in American
judicial reform efforts abroad. Such evidence supports the idea that interaction between American justices
and their foreign counterparts may have dramatically increased from the 1990s on due, at least in part, to
the more active role the United States has played in promoting democracy since the end of the Cold War,
including its efforts to promote judicial reform abroad. Slaughter (1997) considers such efforts a crucial
part of what she calls “judicial foreign policy,” which emerged following the Cold War and has resulted in
an increasingly global community of judges and legal professionals, of which the United States is a
primary and active member (p. 186). Carothers (2005) cites further evidence of U.S. membership in this
globalized legal community: There has been unprecedented growth in the levels of exchange and
communication between members of the legal profession here and abroad and in the worldwide
availability of information about legal decisions and courts. 8 Considered together, these contributions
suggest that a complete empirical account of the types of activities and interactions between the Court
and international actors, institutions, and norms discussed in this chapter is needed. If found, an increase
in these types of exchanges and other forms of personal and professional interaction between the justices
and their foreign counterparts over the past two decades may prove to be an important effect of judicial
globalization on the post–Cold War Court not yet fully explored.

Specifically, SCOTUS Con Law

Liptak 8 (Adam, J.D. from Yale, an instructor in law and journalism and the Supreme Court
correspondent for the NYT, 9/17/2008, "U.S. Court is Not Guiding Fewer Nations," The New York Times,
http://www.nytimes.com/2008/09/18/us/18legal.html?pagewanted=all&_r=0)

The signature innovations of the American legal system — a written Constitution, a Bill of Rights
protecting individual freedoms and an independent judiciary with the power to strike down legislation —
have been consciously emulated in much of the world. And American constitutional law has been
cited and discussed in countless decisions of courts in Australia, Canada, Germany, India, Israel, Japan,
New Zealand, South Africa and elsewhere.
In a 1996 decision striking down a law that made it a crime to possess pornography, for instance, the
Constitutional Court of South Africa conducted a broad survey of American First Amendment
jurisprudence, citing some 40 decisions of the United States Supreme Court. That same year, the High
Court of Australia followed a 1989 decision of the Supreme Court in a separation-of-powers case, ruling
that a judge was permitted to prepare a report for a government minister about threats to aboriginal areas
because the assignment did not undermine the integrity of the judicial branch.
Sending American ideas about the rule of law abroad has long been a source of pride. “The United
States Supreme Court is the oldest constitutional court in the world — the most respected, the most
legitimate,” said Charles Fried, a law professor at Harvard who served as solicitor general in the Reagan
administration.
 AT: Democ Impact D
Extinction
Kasparov 17
Garry Kasparov, Chairman of the Human Rights Foundation, former World Chess Champion, “Democracy
and Human Rights: The Case for U.S. Leadership,” Testimony Before The Subcommittee on Western
Hemisphere, Transnational Crime, Civilian Security, Democracy, Human Rights, and Global Women's
Issues of the U.S. Senate Committee on Foreign Relations, February 16th,
https://www.foreign.senate.gov/imo/media/doc/021617_Kasparov_%20Testimony.pdf

As one of the countless millions of people who were freed or protected from totalitarianism by the United
States of America, it is easy for me to talk about the past. To talk about the belief of the American people
and their leaders that this country was exceptional, and had special responsibilities to match its
tremendous power. That a nation founded on freedom was bound to defend freedom everywhere . I could
talk about the bipartisan legacy of this most American principle, from the Founding Fathers, to Democrats
like Harry Truman, to Republicans like Ronald Reagan. I could talk about how the American people used
to care deeply about human rights and dissidents in far-off places, and how this is what made America a
beacon of hope, a shining city on a hill. America led by example and set a high standard, a standard that
exposed the hypocrisy and cruelty of dictatorships around the world. But there is no time for nostalgia.
Since the fall of the Berlin Wall, the collapse of the Soviet Union, and the end of the Cold War, Americans,
and America, have retreated from those principles, and the world has become much worse off as a
result . American skepticism about America’s role in the world deepened in the long, painful wars in
Afghanistan and Iraq, and their aftermaths. Instead of applying the lessons learned about how to do
better, lessons about faulty intelligence and working with native populations, the main outcome was to
stop trying. This result has been a tragedy for the billions of people still living under authoritarian regimes
around the world, and it is based on faulty analysis. You can never guarantee a positive outcome— not in
chess, not in war, and certainly not in politics. The best you can do is to do what you know is right and to
try your best. I speak from experience when I say that the citizens of unfree states do not expect
guarantees. They want a reason to hope and a fighting chance. People living under dictatorships want the
opportunity for freedom, the opportunity to live in peace and to follow their dreams. From the Iraq War to
the Arab Spring to the current battles for liberty from Venezuela to Eastern Ukraine, people are fighting for
that opportunity, giving up their lives for freedom. The United States must not abandon them. The United
States and the rest of the free world has an unprecedented advantage in economic and military strength
today. What is lacking is the will. The will to make the case to the American people, the will to take risks
and invest in the long-term security of the country, and the world. This will require investments in aid, in
education, in security that allow countries to attain the stability their people so badly need. Such
investment is far more moral and far cheaper than the cycle of terror, war , refugees, and military
intervention that results when America leaves a vacuum of power. The best way to help refugees is to
prevent them from becoming refugees in the first place. The Soviet Union was an existential threat, and
this focused the attention of the world, and the American people. There existential threat today is not
found on a map, but it is very real . The forces of the past are making steady progress against the
modern world order. Terrorist movements in the Middle East, extremist parties across Europe, a
paranoid tyrant in North Korea threatening nuclear blackmail, and, at the center of the web, an
aggressive KGB dictator in Russia . They all want to turn the world back to a dark past because their
survival is threatened by the values of the free world, epitomized by the United States. And they are
thriving as the U.S. has retreated . The global freedom index has declined for ten consecutive years. No
one like to talk about the United States as a global policeman, but this is what happens when there is
no cop on the beat. American leadership begins at home , right here. America cannot lead the world
on democracy and human rights if there is no unity on the meaning and importance of these things.
Leadership is required to make that case clearly and powerfully . Right now, Americans are engaged
in politics at a level not seen in decades. It is an opportunity for them to rediscover that making America
great begins with believing America can be great. The Cold War was won on American values that were
shared by both parties and nearly every American. Institutions that were created by a Democrat, Truman,
were triumphant forty years later thanks to the courage of a Republican, Reagan. This bipartisan
consistency created the decades of strategic stability that is the great strength of democracies. Strong
institutions that outlast politicians allow for long-range planning. In contrast, dictators can operate only
tactically, not strategically, because they are not constrained by the balance of powers, but cannot afford
to think beyond their own survival. This is why a dictator like Putin has an advantage in chaos, the ability
to move quickly. This can only be met by strategy, by long-term goals that are based on shared values,
not on polls and cable news. The fear of making things worse has paralyzed the United States from trying
to make things better. There will always be setbacks, but the United States cannot quit. The spread of
democracy is the only proven remedy for nearly every crisis that plagues the world today. War,
famine, poverty, terrorism –all are generated and exacerbated by authoritarian regimes. A policy of
America First inevitably puts American security last. American leadership is required because there is no
one else, and because it is good for America. There is no weapon or wall that is more powerful for
security than America being envied, imitated, and admired around the world. Admired not for being
perfect, but for having the exceptional courage to always try to be better. Thank you.

Strong democracy maintains global peace

Cortright 13, David Cortright is the director of Policy Studies at the Kroc Institute for Peace Studies at
the University of Notre Dame, Chair of the Board of Directors of the Fourth Freedom Forum, and author of
17 books, Kristen Wall is a Researcher and Analyst at the Kroc Institute, Conor Seyle is Associate
Director of One Earth Future, Governance, Democracy, and Peace How State Capacity and Regime Type
Influence the Prospects of War and Peace,
http://oneearthfuture.org/sites/oneearthfuture.org/files//documents/publications/Cortright-Seyle-Wall-
Paper.pdf

Drawing from the empirical literature, this paper identifies two underlying pathways through which state
governance systems help to build peace. These are: State capacity. If states lack the ability to execute
their policy goals or to maintain security and public order in the face of potentially violent groups, armed
conflict is more likely. State capacity refers to two significant aspects: security capacity and social
capacity. Security capacity includes the ability to control territory and resist armed incursion from other
states and nonstate actors. Social capacity includes the ability to provide social services and public
goods. Institutional quality. Research suggests that not all governance systems are equally effective or
capable of supporting peace. Governance systems are seen as more credible and legitimate, and are
better at supporting peace, when they are characterized by inclusiveness, representativeness,
transparency, and accountability. In particular, systems allowing citizens to voice concerns, participate
politically, and hold elected leaders accountable are more stable and better able to avoid armed
conflict. Both dimensions—state capacity and quality—are crucial to the prevention of armed conflict and
are the focus of part one of this paper. Part two of the paper focuses on democracy as the most common
way of structuring state government to allow for inclusive systems while maintaining state capacity. The
two parts summarize important research findings on the features of governance that are most strongly
associated with prospects for peace. Our analysis, based on an extensive review of empirical literature,
seeks to identify the specific dimensions of governance that are most strongly associated with peace. We
show evidence of a direct link between peace and a state’s capacity to both exert control over its territory
and provide a full range of social services through effective governance institutions. We apply a
governance framework to examine three major factors associated with the outbreak of war—border
disputes, ethnic conflict, and dependence on commodity exports—and emphasize the importance of
inclusive and representative governance structures for the prevention of armed conflict.
 2NC—China Model Impact
Competition between political models—1NC Perito
Specifically, relative attractiveness will determine uptake of China’s model
Yu 19 – fellow at the Ash Center, Harvard Kennedy School, a former China National Television News
Anchor, senior executive and board member. She has a PhD in political economy from Peking Univer-
sity, and a Master’s in Government from Harvard University
Shirley, “THE BELT AND ROAD INITIATIVE: MODERNITY, GEOPOLITICS AND THE DEVELOPING
GLOBAL ORDER.” Asian Affairs, https://doi.org/10.1080/03068374.2019.1602389
However, China has beyond doubt embraced an alternative path of economic development from the economic
commandments of the ‘ Washington Consensus’ . With it, China adopts a very different social and political superstructure
that ensures the efficiency and stability of its econ- omic model thus far. This in totality presents a formidable ‘ China
Model’ .
There has been certainly a resurgence in the weight and role of State-Owned Enterprises (SOEs) in the Chinese economy during
Xi’s reign. Mergers of major state-owned companies to create colossal Chinese enterprises in key economic sectors have occurred
more frequently, making it extremely difficult for private companies to compete in key economic sectors with the SOEs. BRI projects,
mostly situated in emerging economies, are inher- ently imbedded with varying degrees of political and economic risks. State-
Owned enterprises, with a large amount of financial backing from the state, and their majority ownership being the state (unlike
private enterprises), can represent Chinese state strategic interests in many ways, and secure a much bigger share of BRI
investments than their private company counterparts.
Should the China Model be seen as economically successful , and at the same time non-ideological and non-
interventionist, many countries along the BRI region, especially the quasi-democracies and autocracies,
would welcome it as an alternative , maybe as a preferred alternative to satisfy their desire for economic
growth without compromising on politi-cal authority .15 Thus regional countries with a dire need for
economic growth will be left to choose one of two alternatives: market liberalism or market
authoritarianism models.
In conclusion, under the Chinese ‘Common Destiny’ vision, the region will likely tend towards national
sovereignty over individual liberty, market authoritarianism over market liberalism, political
authoritarianism over democracy, and civil obedience over civil liberty . Just as democracy, market liberalism and
civil liberty define the common destiny of the West, the common destiny China envisions can be defined as nationalism, market
authoritarianism and rule by civil obedience.

Authoritarian-capitalist model corrodes civil rights—Wrecks sustainable

development and drives global kleptocracy
Shullman, 19 – Senior Advisor at the International Republican Institute; served for nearly a dozen
years as one of the US Government’s top experts on East Asia, most recently as Deputy National
Intelligence Officer for East Asia on the National Intelligence Council. He earned his PhD in Political
Science from UCLA
David, “CHINESE MALIGN INFLUENCE AND THE CORROSION OF DEMOCRACY: An Assessment of
Chinese Interference in Thirteen Key Countries.” The International Republican Institute report.
https://www.iri.org/sites/default/files/chinese_malign_influence_report.pdf
From Europe to West Africa, China’s malign influence corrodes developing countries’ democracies, undermines
their independence, and presents a daunting and novel strategic challenge to the United States and the rules-
based, liberal democratic order. The U.S. and its democratic partners have only just begun to comprehend the scale of the
threat posed by the CCP’s campaign to shape the world to serve China’s interests — an effort that is directly at odds with
democratic principles and sustainable development.
As the case studies explored in this report demonstrate, Beijing has utilized sophisticated influence methods tailored to exploit local
conditions and governance weaknesses in countries at varying stages of development. Given their success rate thus far and the
relationship of these efforts to China’s long-term needs and ambitions, these efforts are likely to intensify.
The CCP’s approach to the developing world is integral to fueling the Chinese economy and ensuring the
promised “rejuvenation” of China to great power status — both of which are crucial to the Party’s continued
legitimacy. As China’s economy continues to slow, it will leverage countries’ financial dependence to achieve quick
returns on investments and use heavy-handed “sharp power” efforts to shape the narrative in a way that
protects Chinese interests.
As part of this effort, the CCP is likely to redouble advocacy in the developing world to shore up the legitimacy
of China’s authoritarian model, casting doubt on the value of democracy as a catalyst for rapid economic
development. China’s provision of a greater array of surveillance and monitoring tools to friendly autocrats
will help those rulers to stay in power while corroding civic rights in those countries . Moreover, the
continuation of opaque investment deals and the proliferation of risky debt will undermine sustainable
development , nourish kleptocracy and threaten the independence of countries that have welcomed Chinese
investment and either turned a blind eye to malign interference or remain unaware of its consequences.

Failure to politically liberalize WHILE growing risks instability and interstate war
in every hotspot—Goes nuclear
ODNI 17
Office of the Director of National Intelligence, National Intelligence Council unclassified strategic
assessment of global trends, authored by ODNI personnel including the Chairman of the NIC, THE NEAR
FUTURE: TENSIONS ARE RISING, 2017, https://www.dni.gov/index.php/global-trends/near-future

These global trends, challenging governance and changing the nature of power, will drive major
consequences over the next five years. They will raise tensions across all regions and types of
governments, both within and between countries . These near-term conditions will contribute to the
expanding threat from terrorism and leave the future of international order in the balance .
Within countries, tensions are rising because citizens are raising basic questions about what they can
expect from their governments in a constantly changing world. Publics are pushing governments to
provide peace and prosperity more broadly and reliably at home when what happens abroad is
increasingly shaping those conditions.
In turn, these dynamics are increasing tensions between countries—heightening the risk of interstate
conflict during the next five years. A hobbled Europe, uncertainty about America’s role in the world, and
weakened norms for conflict-prevention and human rights create openings for China and Russia. The
combination will also embolden regional and nonstate aggressors—breathing new life into regional
rivalries , such as between Riyadh and Tehran, Islamabad and New Delhi, and on the Korean Peninsula .
Governance shortfalls also will drive threat perceptions and insecurity in countries such as Pakistan and
North Korea.
Economic interdependence among major powers remains a check on aggressive behavior but might be
insufficient in itself to prevent a future conflict. Major and middle powers alike will search for ways to
reduce the types of interdependence that leaves them vulnerable to economic coercion and financial
sanctions, potentially providing them more freedom of action to aggressively pursue their interests.
Meanwhile, the threat from terrorism is likely to expand as the ability of states, groups, and individuals to
impose harm diversifies. The net effect of rising tensions within and between countries —and the
growing threat from terrorism—will be greater global disorder and considerable questions about the rules,
institutions, and distribution of power in the international system.
Europe. Europe’s sharpening tensions and doubts about its future cohesion stem from institutions
mismatched to its economic and security challenges. EU institutions set monetary policy for Eurozone
states, but state capitals retain fiscal and security responsibilities—leaving poorer members saddled with
debt and diminished growth prospects and each state determining its own approach to security. Public
frustration with immigration, slow growth, and unemployment will fuel nativism and a preference for
national solutions to continental problems.
Outlook: Europe is likely to face additional shocks—banks remain unevenly capitalized and regulated,
migration within and into Europe will continue, and Brexit will encourage regional and separatist
movements in other European countries. Europe’s aging population will undermine economic output, shift
consumption toward services—like health care—and away from goods and investment. A shortage of
younger workers will reduce tax revenues, fueling debates over immigration to bolster the workforce. The
EU’s future will hinge on its ability to reform its institutions, create jobs and growth, restore trust in elites,
and address public concerns that immigration will radically alter national cultures.
United States. The next five years will test US resilience. As in Europe, tough economic times have
brought out societal and class divisions. Stagnant wages and rising income inequality are fueling doubts
about global economic integration and the “American Dream” of upward mobility. The share of American
men age 25- 54 not seeking work is at the highest level since the Great Depression. Median incomes
rose by 5 percent in 2015, however, and there are signs of renewal in some communities where real
estate is affordable, returns on foreign and domestic investment are high, leveraging of immigrant talent is
the norm, and expectations of federal assistance are low, according to contemporary observers.
Outlook: Despite signs of economic improvement, challenges will be significant, with public trust in
leaders and institutions sagging, politics highly polarized, and government revenue constrained by
modest growth and rising entitlement outlays. Moreover, advances in robotics and artificial intelligence
are likely to further disrupt labor markets. Meanwhile, uncertainty is high around the world regarding
Washington’s global leadership role. The United States has rebounded from troubled times before,
however, such as when the period of angst in the 1970s was followed by a stronger economic recovery
and global role in the world. Innovation at the state and local level, flexible financial markets, tolerance for
risk-taking, and a demographic profile more balanced than most large countries offer upside potential.
Finally, America is distinct because it was founded on an inclusive ideal—the pursuit of life, liberty, and
happiness for all, however imperfectly realized—rather than a race or ethnicity. This legacy remains a
critical advantage for managing divisions.
Central and South America. Although state weakness and drug trafficking have and will continue to beset
Central America, South America has been more stable than most regions of the world and has had many
democratic advances—including recovery from populist waves from the right and the left. However,
government efforts to provide greater economic and social stability are running up against budget and
debt constraints. Weakened international demand for commodities has slowed growth. The expectations
associated with new entrants to the middle class will strain public coffers, fuel political discontent, and
possibly jeopardize the region’s significant progress against poverty and inequality
Activist civil society organizations are likely to fuel social tensions by increasing awareness of elite corruption, inadequate infrastructure, and mismanagement. Some incumbents facing possible rejection by their publics are seeking to protect their power, which could lead to a period of intense political competition and democratic backsliding in some countries. Violence is particularly rampant in northern Central America, as gangs and organized criminal groups have undermined basic governance by regimes that lack capacity to
provide many basic public goods and services. Outlook: Central and South America are likely to see more frequent changes in governments that are mismanaging the economy and beleaguered by widespread corruption. Leftist administrations already have lost power in places like Argentina, Guatemala, and Peru and are on the defensive in Venezuela, although new leaders will not have much time to show they can improve conditions. The success or failure of Mexico’s high-profile reforms might affect the willingness of other
countries in the region to take similar political risks. The OECD accession process may be an opportunity—and incentive— for some countries to improve economic policies in a region with fairly balanced age demographics, significant energy resources, and well-established economic links to Asia, Europe, and the United States. An Inward West? Among the industrial democracies of North America, Europe, Japan, South Korea, and Australia, leaders will search for ways to restore a sense of middle class wellbeing while some
attempt to temper populist and nativist impulses. The result could be a more inwardly focused West than we have experienced in decades, which will seek to avoid costly foreign adventures while experimenting with domestic schemes to address fiscal limits, demographic problems, and wealth concentrations. This inward view will be far more pronounced in the European Union, which is absorbed by questions of EU governance and domestic challenges, than elsewhere. The European Union’s internal divisions, demographic
woes, and moribund economic performance threaten its own status as a global player. For the coming five years at least, the need to restructure European relations in light of the UK’s decision to leave the EU will undermine the region’s international clout and could weaken transatlantic cooperation, while anti-immigration sentiments among the region’s populations will undermine domestic political support for Europe’s political leaders. Questions about the United States’ role in the world center on what the country can afford and
what its public will support in backing allies, managing conflict, and overcoming its own divisions. Foreign publics and governments will be watching Washington for signs of compromise and cooperation, focusing especially on global trade, tax reform, workforce preparedness for advanced technologies, race relations, and its openness to experimentation at the state and local levels. Lack of domestic progress would signal a shift toward retrenchment, a weaker middle class, and potentially further global drift into disorder and
regional spheres of influence. Yet, America’s capital, both human and security, is immense. Much of the world’s best talent seeks to live and work in the United States, and domestic and global hope for a competent and constructive foreign policy remain high. China. China faces a daunting test—with its political stability in the balance. After three decades of historic economic growth and social change, Beijing, amid slower growth and the aftereffects of a debt binge, is transitioning from an investment-driven, export-based
economy to one fueled by domestic consumption. Satisfying the demands of its new middle classes for clean air, affordable houses, improved services, and continued opportunities will be essential for the government to maintain legitimacy and political order. President Xi’s consolidation of power could threaten an established system of stable succession, while Chinese nationalism—a force Beijing occasionally encourages for support when facing foreign friction—may prove hard to control. Outlook: Beijing probably has ample
resources to prop up growth while efforts to spur private consumption take hold. Nonetheless, the more it “doubles down” on state owned enterprises (SOEs) in the economy, the more it will be at greater risk of financial shocks that cast doubt on its ability to manage the economy. Automation and competition from lowcost producers elsewhere in Asia and even Africa will put pressure on wages for unskilled workers. The country’s rapidly shrinking working-age population will act as a strong headwind to growth. Russia. Russia’s
aspires to restore its great power status through nationalism, military modernization, nuclear saber rattling, and foreign engagements abroad. Yet, at home, it faces increasing constraints as its stagnant economy heads into a third consecutive year of recession. Moscow prizes stability and order, offering Russians security at the expense of personal freedoms and pluralism. Moscow’s ability to retain a role on the global stage—even through disruption—has also become a source of regime power and popularity at home. Russian
nationalism features strongly in this story, with A Chinese man rides a bike among luxurious cars. China’s dramatic economic growth has highlighted greater gaps between rich and poor. President Putin praising Russian culture as the last bulwark of conservative Christian values against the decadence of Europe and the tide of multiculturalism. Putin is personally popular, but approval ratings of 35 percent for the ruling party reflect public impatience with deteriorating quality of life conditions and abuse of power. Outlook: If the
Kremlin’s tactics falter, Russia will become vulnerable to domestic instability driven by dissatisfied elites— even as a decline in status suggests more aggressive international action. Russia’s demographic picture has improved somewhat since the 1990s but remains bleak. Life expectancy among males is the lowest of the industrial world, and its population will continue to decline. The longer Moscow delays diversifying its economy, the more the government will stoke nationalism and sacrifice personal freedoms and pluralism to
maintain control. An Increasingly Assertive China and Russia. Beijing and Moscow will seek to lock in temporary competitive advantages and to right what they charge are historical wrongs before economic and demographic headwinds further slow their material progress and the West regains its footing. Both China and Russia maintain worldviews in which they are rightfully dominant in their regions and able to shape regional politics and economics to suit their security and material interests. Both have moved aggressively in
recent years to exert greater influence in their regions, to contest the US geopolitically, and to force Washington to accept exclusionary regional spheres of influence—a situation that the United States has historically opposed. For example, China views the continuing presence of the US Navy in the Western Pacific, the centrality of US alliances in the region, and US protection of Taiwan as outdated and representative of the continuation of China’s “100 years of humiliation.” Recent Sino-Russian cooperation has been tactical,
however, and is likely to return to competition if Beijing jeopardizes Russian interests in Central Asia and as Beijing enjoys more options for cheap energy supply beyond Russia. Moreover, it is not clear whether there is a mutually acceptable border between what China and Russia consider their natural spheres of influence. Meanwhile, India’s growing economic power and profile in the region will further complicate these calculations, as New Delhi navigates relations with Beijing, Moscow, and Washington to protect its own
expanding interests. A Chinese development firm—with links to the Chinese Government and People’s Liberation Army— today announced that it recently purchased the uninhabited Cobia Island from the Government of Fiji for $850 million. Western security analysts assess that China plans to use the island to build a permanent military base in the South Pacific, 3,150 miles southwest of Hawaii. Russian assertiveness will harden anti-Russian views in the Baltics and other parts of Europe, escalating the risk of conflict. Russia
will seek, and sometimes feign, international cooperation, while openly challenging norms and rules it perceives as counter to its interests and providing support for leaders of fellow “managed democracies” that encourage resistance to American policies and preferences. Moscow has little stake in the rules of the global economy and can be counted on to take actions that weaken US and European institutional advantages. Moscow will test NATO and European resolve, seeking to undermine Western credibility; it will try to
exploit splits between Europe’s north and south and east and west, and to drive a wedge between the United States and the EU. Similarly, Moscow will become more active in the Middle East and those parts of the world in which it believes it can check US influence. Finally, Russia will remain committed to nuclear weapons as a deterrent and as a counter to stronger conventional military forces, as well as its ticket to superpower status. Russian military doctrine purportedly includes the limited use of nuclear weapons in a
situation where Russia’s vital interests are at stake to “deescalate” a conflict by demonstrating that continued conventional conflict risks escalating the crisis to a large scale nuclear exchange. In Northeast Asia, growing tensions around the Korean Peninsula are likely, with the possibility of serious confrontation in the coming years. Kim Jong Un is consolidating his grip on power through a combination of patronage and terror and is doubling down on his nuclear and missile programs, developing long-range missiles that may
soon threaten the continental United States. Beijing, Seoul, Tokyo, and Washington have a common incentive to manage security risks in Northeast Asia, but a history of warfare and occupation along with current mutual distrust makes cooperation difficult. Continued North Korean provocations, including additional nuclear and missile tests, might worsen stability in the region and prompt neighboring countries to take actions, sometimes unilaterally, to protect their security interests. Competing Views on Instability

China and Russia portray global disorder as resulting from a Western plot to push what they see as self-
serving American concepts and values of freedom to every corner of the planet. Western governments
see instability as an underlying condition worsened by the end of the Cold War and incomplete political
and economic development . Concerns over weak and fragile states rose more than a generation ago
because of beliefs about the externalities they produce — whether disease , refugees , or terrorists in
some instances. The growing interconnectedness of the planet , however, makes isolation from the
global periphery an illusion , and the rise of human rights norms makes state violence against a
governed population an unacceptable option.
One consequence of post-Cold War disengagement by the United States and the then-USSR, was a loss
of external support for strongmen politics, militaries, and security forces who are no longer able to bargain
for patronage. Also working against coercive governments are increased demands for responsive and
participatory governance by citizens no longer poor due to the unprecedented scale and speed of
economic development in the nonindustrial world. Where political and economic development
occurred roughly in tandem or quick succession, modernization and individual empowerment have
reinforced political stability . Where economic development outpaced or occurred without political
changes —such as in much of the Arab world and the rest of Africa and South Asia — instability
ensued . China has been a notable exception. The provision of public goods there so far has bolstered
political order but a campaign against corruption is now generating increasing uncertainty and popular
protests have grown during the past 15 years. Russia is the other major exception—economic growth—
largely the result of high energy and commodity prices—helped solve the disorder of the Yeltsin years.
US experience in Iraq and Afghanistan has shown that coercion and infusions of money cannot
overcome state weakness . Rather, building a stable political order requires inclusiveness ,
cooperation among elites, and a state administration that can both control the military and provide
public services . This has proved more difficult than expected to provide.
 2NC—JI Impact
Strong independent judiciary key to liberalize transitioning democracies around
the world
Center for Justice, January 14, ‘4, Amicus Brief, Nos. 03-334, 03-343, www.ccr-
ny.org/v2/rasul_v_bush/legal/petitioners/Emerging%20Democracies%20Brief.pdf

IV. A STRONG, INDEPENDENT JUDICIARY IS ESSENTIAL TO THE PROTECTION OF INDIVID-UAL

FREEDOMS AND THE ESTABLISHMENT OF STABLE GOVERNANCE IN EMERGING
DEMOCRACIES AROUND THE WORLD. A. Individual Nations Have Accepted and Are Seeking to Implement
Judicial Review By A Strong, Independent Judiciary. Many of the newly independent governments that have
proliferated over the past five decades have adopted these ideals. They have emerged from a variety of less-than-
free contexts, including the end of European colonial rule in the 1950’s and 1960’s, the end of the Cold War and the
breakup of the former Soviet Union in the late 1980’s and 1990’s, the disintegration of Yugoslavia, and the continu-
ing turmoil in parts of Africa, Latin America and southern Asia. Some countries have successfully transitioned to
sta-ble and democratic forms of government that protect indi-vidual freedoms and human rights by means
of judicial review by a strong and independent judiciary. Others have suffered the rise of tyrannical and
oppressive rulers who consolidated their hold on power in part by diminishing or abolishing the role of the
judiciary. And still others hang in the balance, struggling against the onslaught of tyrants to establish
stable, democratic governments. In their attempts to shed their tyrannical pasts and to ensure the
protection of individual rights, emerging democracies have consistently looked to the United States and
its Constitution in fashioning frameworks that safe-guard the independence of their judiciaries. See Ran
Hirschl, The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four
Consti-tutional Revolutions, 25 LAW & SOC. INQUIRY 91, 92 (2000) (stating that of the “[m]any countries
. . . [that] have engaged in fundamental constitutional reform over the past three decades,” nearly all
adopted “a bill of rights and establishe[d] some form of active judicial review”). Estab-lishing judicial
review by a strong and independent judici-ary is a critical step in stabilizing and protecting these new
democracies. See Christopher M. Larkins, Judicial Inde-pendence and Democratization: A Theoretical
and Concep-tual Analysis, 44 AM. J. COMP. L. 605, 605-06 (1996) (describing the judicial branch as
having “a uniquely important role” in transitional countries, not only to “mediate conflicts between political
actors but also [to] prevent the arbitrary exercise of government power; see also Daniel C. Prefontaine
and Joanne Lee, The Rule of Law and the Independence of the Judiciary, International Centre for Criminal
Law Reform and Criminal Justice Pol-icy (1998) (“There is increasing acknowledgment that an independent judiciary is the key to
upholding the rule of law in a free society . . . . Most countries in transition from dictatorships and/or statist economies recognize the
need to create a more stable system of governance, based on the rule of law.”), available at http://www.icclr.law.ubc.ca/
Publications/Reports/RuleofLaw.pdf (viewed Jan. 8, 2004). Although the precise form of government differs among
countries, “they ultimately constitute variations within, not from, the American model of
constitutionalism . . . [a] spe-cific set of fundamental rights and liberties has the status of supreme law, is
entrenched against amendment or repeal . . . and is enforced by an independent court . . . .” Stephen
Gardbaum, The New Commonwealth Model of Constitu-tionalism, 49 AM. J. COMP. L. 707, 718 (2001).
This phenomenon became most notable worldwide after World War II when certain countries, such as
Germany, Italy, and Japan, embraced independent judiciaries follow-ing their bitter experiences under
totalitarian regimes. See id. at 714-15; see also United States v. Then, 56 F.3d 464, 469 (2d Cir. 1995)
(Calabresi, J., concurring) (“Since World War II, many countries have adopted forms of judi-cial review,
which—though different from ours in many particulars—unmistakably draw their origin and inspira-tion
from American constitutional theory and practice. See generally Mauro Cappelletti, The Judicial Process in
Comparative Perspective (Oxford: Clarendon Press, 1989).”). It is a trend that continues to this day. It bears
mention that the United States has consistently affirmed and encouraged the establishment of independent
judiciaries in emerging democracies. In September 2000, President Clinton observed that “[w]ithout the rule of law,
elections simply offer a choice of dictators. . . . America’s experience should be put to use to advance the rule of law,
where democracy’s roots are looking for room and strength to grow.” Remarks at Georgetown University Law School,
36 Weekly Comp. Pres. Doc. 2218 (September 26, 2000), available at http://clinton6.nara.gov/2000/09/2000-09-26-
remarks-by-president-at-georgetown-international-law-center. html. The United States acts on these principles in part
through the assistance it provides to developing nations. For example, the United States requires that any country
seeking assistance through the Millenium Chal-lenge Account, a development assistance program institut-ed in 2002,
must demonstrate, among other criteria, an “adherence to the rule of law.” The White House noted that the rule of law
is one of the “essential conditions for suc-cessful development” of these countries. See http://www.
whitehouse.gov/infocus/developingnations (viewed Jan. 8, 2004).11 A few examples illustrate the influence of the
United States model. On November 28, 1998, Albania adopted a new constitution, representing the culmination of
eight years of democratic reform after the communist rule col-lapsed. In addition to protecting fundamental individual
rights, the Albanian Constitution provides for an inde-pendent judiciary consisting of a Constitutional Court with final
authority to determine the constitutional rights of individuals. Albanian Constitution, Article 125, Item 1 and Article
128; see also Darian Pavli, “A Brief ‘Constitution-al History’ of Albania” available at http://www.ipls.org/
services/others/chist.html (viewed Jan. 8, 2004); Jean-Marie Henckaerts & Stefaan Van der Jeught, Human Rights
Protection Under the New Constitutions of Central Europe, 20 LOY. L.A. INT’L & COMP. L. REV. 475 (Mar.
1998). In South Africa, the new constitutional judiciary plays a similarly important role, following
generations of an oppressive apartheid regime. South Africa adopted a new constitution in 1996. Constitution of the
Republic of South Africa, Explanatory Memorandum. It establishes a Consti-tutional Court which “makes the final decision whether
an Act of Parliament, a provincial Act or conduct of the Pres-ident is constitutional.” Id. at Chapter 8, Section 167, Item (5), available
at http://www.polity.org.za/html/govdocs/ constitution/saconst.html?rebookmark=1 (viewed Jan. 8, 2004); see also Justice Tholakele
H. Madala, Rule Under Apartheid and the Fledgling Democracy in Post-Apartheid South Africa: The Role of the Judiciary, 26 N.C. J.
INT’L L. & COM. REG. 743 (Summer 2001). Afghanistan is perhaps the most recent example of a country
struggling to develop a more democratic form of government. Adoption by the Loya Jirga of Afghanistan’s
new constitution on January 4, 2004 has been hailed as a milestone. See
http://www.cbsnews.com/stories/2004/01/ 02/world/main591116.shtml (Jan. 7, 2004). The proposed
constitution creates a judiciary that, at least on paper, is “an independent organ of the state,” with a Supreme
Court empowered to review the constitutionality of laws at the request of the Government and/or the Courts. Afghan
Const. Art. 116, 121 (unofficial trans.), available at http:// www.hazara.net/jirga/AfghanConstitution-Final.pdf (viewed
Jan. 8, 2004). See also Ron Synowitz, Afghani-stan: Constitutional Commission Chairman Presents Karzai with
Long-Delayed Draft Constitution (Nov. 3, 2003), available at http://www.rferl.org/nca/features/
2003/11/03112003164239.asp (viewed Jan. 8, 2004). B. Other Nations Have Curtailed Judicial Review During
Times Of Crisis, Often Citing the Unit-ed States’ Example, And Individual Freedoms Have Diminished As
A Result. While much of the world is moving to adopt the institu-tions necessary to secure individual
rights, many still reg-ularly abuse these rights. One of the hallmarks of tyranny is the lack of a strong and
independent judiciary. Not sur-prisingly, where countries make the sad transition to tyran-ny, one of the
first victims is the judiciary. Many of the rulers that go down that road justify their actions on the basis of
national security and the fight against terrorism, and, disturbingly, many claim to be modeling their actions
on the United States. Again, a few examples illustrate this trend. In Peru, one of former President Alberto Fujimori’s first
acts in seizing control was to assume direct executive control of the judi-ciary, claiming that it was justified by the threat of
domes-tic terrorism. He then imprisoned thousands, refusing the right of the judiciary to intervene. International Commis-
sion of Jurists, Attacks on Justice 2000-Peru, Aug. 13, 2001, available at http://www.icj.org/news.php3?id_arti-cle=
2587&lang=en (viewed Jan. 8, 2004). In Zimbabwe, President Mugabe’s rise to dictatorship has been punctuated by threats
of violence to and the co-opting of the judiciary. He now enjoys virtually total con-trol over Zimbabweans’ individual rights
and the entire political system. R.W. Johnson, Mugabe’s Agents in Plot to Kill Opposition Chief, Sunday Times (London),
June 10, 2001; International Commission of Jurists, Attacks on Jus-tice 2002-Zimbabwe, Aug. 27, 2002, available at http://
www.icj.org/news.php3?id_article=2695&lang=en (viewed Jan. 8, 2004). While Peru and Zimbabwe represent an extreme,
the independence of the judiciary is under assault in less brazen ways in a variety of countries today. A
highly trou-bling aspect of this trend is the fact that in many of these instances those perpetuating the
assaults on the judiciary have pointed to the United States’ model to justify their actions. Indeed, many have
specifically referenced the United States’ actions in detaining persons in Guantánamo Bay. For example, Rais Yatim,
Malaysia’s “de facto law min-ister” explicitly relied on the detentions at Guantánamo to justify Malaysia’s detention of more
than 70 suspected Islamic militants for over two years. Rais stated that Malaysia’s detentions were “just like the process in
Guan-tánamo,” adding, “I put the equation with Guantánamo just to make it graphic to you that this is not simply a Malaysian
style of doing things.” Sean Yoong, “Malaysia Slams Criticism of Security Law Allowing Detention Without Trial,” Associated
Press, Sept. 9, 2003 (available from Westlaw at 9/9/03 APWIRES 09:34:00). Similarly, when responding to a United States Govern-
ment human rights report that listed rights violations in Namibia, Namibia’s Information Permanent Secretary Mocks Shivute cited
the Guantánamo Bay detentions, claiming that “the US government was the worst human rights violator in the world.” BBC
Monitoring, Mar. 8, 2002, available at 2002 WL 15938703. Nor is this disturbing trend limited to these specific examples. At a recent
conference held at the Carter Center in Atlanta, President Carter, specifically citing the Guantá-namo Bay detentions, noted that the
erosion of civil liber-ties in the United States has “given a blank check to nations who are inclined to violate human rights already.”
Doug Gross, “Carter: U.S. human rights missteps embold-en foreign dictators,” Associated Press, Nov. 12, 2003 (available from
Westlaw at 11/12/03 APWIRES 00:30:26). At the same conference, Professor Saad Ibrahim of the American University in Cairo
(who was jailed for seven years after exposing fraud in the Egyptian election process) said, “Every dictator in the world is using what
the United States has done under the Patriot Act . . . to jus-tify their past violations of human rights and to declare a license to
continue to violate human rights.” Id. Likewise, Shehu Sani, president of the Kaduna, Nigeria-based Civil Rights Congress, wrote in
the International Herald Tribune on September 15, 2003 that [t]he insistence by the Bush administration on keep-ing Taliban and Al
Quaeda captives in indefinite detention in Guantánamo Bay, Cuba, instead of in jails in the United States—and the White House’s
preference for military tribunals over regular courts— helps create a free license for tyranny in Africa. It helps justify Egypt’s move to
detain human rights campaigners as threats to national security, and does the same for similar measures by the governments of
Ivory Coast, Cameroon and Burkina Faso. Available at http://www.iht.com/ihtsearch.php?id=109927
&owner=(IHT)&date=20030121123259. In our uni-polar world, the United States obviously
sets an important
example on these issues. As reflected in the foundational documents of the United Nations and many
other such agreements, the international community has consistently affirmed the value of an
independent judiciary to the defense of universally recognized human rights. In the crucible of actual
practice within nations, many have looked to the United States model when developing inde-pendent
judiciaries with the ability to check executive power in the defense of individual rights. Yet others have justified
abuses by reference to the conduct of the United States. Far more influential than the words of Montesquieu and
Madison are the actions of the United States. This case starkly presents the question of which model this Court will
set for the world. CONCLUSION Much of the world models itself after this country’s two hundred year old
traditions—and still more on its day to day implementation and expression of those traditions. To say
that a refusal to exercise jurisdiction in this case will have global implications is not mere rhetoric. Resting
on this Court’s decision is not only the necessary role this Court has historically played in this country. Also at
stake are the freedoms that many in emerging democracies around the globe seek to ensure for their
peoples.

That solves genocide and war

Zakaria, Ph.D. Poli Sci – Harvard, ‘97
(http://www.fareedzakaria.com/ARTICLES/other/democracy.html)

Lang's embarrassment highlights two common, and often mistaken, assumptions -- that the forces of
democracy are the forces of ethnic harmony and of peace. Neither is necessarily true. Mature liberal
democracies can usually accommodate ethnic divisions without violence or terror and live in peace with
other liberal democracies. But without a background in constitutional liberalism, the introduction of
democracy in divided societies has actually fomented nationalism, ethnic conflict, and even war. The spate
of elections held immediately after the collapse of communism were won in the Soviet Union and Yugoslavia by nationalist
separatists and resulted in the breakup of those countries. This was not in and of itself bad, since those countries had been bound
together by force. But the rapid secessions, without guarantees, institutions, or political power for the many minorities living within
the new countries, have caused spirals of rebellion, repression, and, in places like Bosnia, Azerbaijan, and Georgia, war .
Elections require that politicians compete for peoples' votes. In societies without strong traditions of
multiethnic groups or assimilation, it is easiest to organize support along racial, ethnic, or religious lines.
Once an ethnic group is in power, it tends to exclude other ethnic groups. Compromise seems impossible;
one can bargain on material issues like housing, hospitals, and handouts, but how does one split the
difference on a national religion? Political competition that is so divisive can rapidly degenerate into
violence. Opposition movements, armed rebellions, and coups in Africa have often been directed against
ethnically based regimes, many of which came to power through elections. Surveying the breakdown of African
and Asian democracies in the 1960s, two scholars concluded that democracy "is simply not viable in an environment of intense
ethnic preferences." Recent studies, particularly of Africa and Central Asia, have confirmed this pessimism. A distinguished expert
on ethnic conflict, Donald Horowitz, concluded, "In the face of this rather dismal account . . . of the concrete failures of democracy in
divided societies . . . one is tempted to throw up one's hands. What is the point of holding elections if all they do in the end is to
substitute a Bemba-dominated regime for a Nyanja regime in Zambia, the two equally narrow, or a southern regime for a northern
one in Benin, neither incorporating the other half of the state?" Over the past decade, one of the most spirited debates among
scholars of international relations concerns the "democratic peace" -- the assertion that no two modern democracies have gone to
war with each other. The debate raises interesting substantive questions (does the American Civil War count? do nuclear weapons
better explain the peace?) and even the statistical findings have raised interesting dissents. (As the scholar David Spiro points out,
given the small number of both democracies and wars over the last two hundred years, sheer chance might explain the absence of
war between democracies. No member of his family has ever won the lottery, yet few offer explanations for this impressive
correlation.) But even if the statistics are correct, what explains them? Kant, the original proponent of the democratic peace,
contended that in democracies, those who pay for wars -- that is, the public -- make the decisions, so they are understandably
cautious. But that claim suggests that democracies are more pacific than other states. Actually they are more warlike, going
to war more often and with greater intensity than most states. It is only with other democracies that the
peace holds. When divining the cause behind this correlation, one thing becomes clear: the democratic
peace is actually the liberal peace. Writing in the eighteenth century, Kant believed that democracies
were tyrannical, and he specifically excluded them from his conception of "republican" governments,
which lived in a zone of peace. Republicanism, for Kant, meant a separation of powers, checks and
balances, the rule of law, protection of individual rights, and some level of representation in government
(though nothing close to universal suffrage). Kant's other explanations for the "perpetual peace" between
republics are all closely linked to their constitutional and liberal character: a mutual respect for the rights
of each other's citizens, a system of checks and balances assuring that no single leader can drag his
country into war, and classical liberal economic policies -- most importantly, free trade -- which create an
interdependence that makes war costly and cooperation useful. Michael Doyle, th leading scholar on the
subject, confirms in his 1997 book Ways of War and Peace that without constitutional liberalism,
democracy itself has no peace-inducing qualities: Kant distrusted unfettered, democratic majoritarianism,
and his argument offers no support for a claim that all participatory polities -- democracies -- should be
peaceful, either in general or between fellow democracies. Many participatory polities have been non-
liberal. For two thousand years before the modern age, popular rule was widely associated with
aggressiveness (by Thucydides) or imperial success (by Machiavelli) . . . The decisive preference of [the]
median voter might well include "ethnic cleansing" against other democratic polities. The distinction
between liberal and illiberal democracies sheds light on another striking statistical correlation. Political
scientists Jack Snyder and Edward Mansfield contend, using an impressive data set, that over the last
200 years democratizing states went to war significantly more often than either stable autocracies or
liberal democracies. In countries not grounded in constitutional liberalism, the rise of democracy often
brings with it hyper-nationalism and war-mongering. When the political system is opened up, diverse
groups with incompatible interests gain access to power and press their demands. Political and military
leaders, who are often embattled remnants of the old authoritarian order, realize that to succeed that they
must rally the masses behind a national cause. The result is invariably aggressive rhetoric and policies,
which often drag countries into confrontation and war. Noteworthy examples range from Napoleon III's
France, Wilhelmine Germany, and Taisho Japan to those in today's newspapers, like Armenia and
Azerbaijan and Milosevic's Serbia. The democratic peace, it turns out, has little to do with democracy.
 AT: Impact Turns (Bivens Bad)
Other checks solve—BUT we still get our net benefit
Vazquez 13 – Professor of Law at Georgetown Law
Carlos Manuel Vázquez, Professor of Law, Georgetown University Law Center, and Stephen I. Vladeck,
Professor of Law and Associate Dean for Scholarship, American University College of Law, State Law,
the Westfall Act, and the Nature of the Bivens Question , 161 U. Penn. L. Rev. 509-583 (2013),
https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1976&context=facpub

We do not argue that the concerns that led the Second Circuit in Arar, the Fourth Circuit in Lebron, the
D.C. Circuit in Doe and Ali, and the Seventh Circuit in Vance to decline to recognize a Bivens claim are
irrelevant to whether the claims should be allowed to proceed . Our contention, rather, is that those
concerns are not relevant to the decision whether to recognize a Bivens claim. Instead, they are
potentially relevant to questions of immunity , privilege , or preemption . The latter defenses would
bar state remedies as well , whereas nonrecognition of a Bivens claim would leave them in place. 63
Whether these factors are treated as relevant to the existence of a Bivens claim or instead to the
defenses of immunity, privilege, or preemption will make a very real difference in the courts'
treatment of the issues and, potentially, the outcome . Specifically, the court's concerns would have to
do much heavier lifting to justify a dismissal on immunity, privilege, or preemption grounds than to
justify nonrecognition of a Bivens claim .
According to the court in Arar, it takes very little to justify a decision to decline to recognize a Bivens
claim. The court need merely have reason to " hesitate ."64 As Chief Judge Jacobs wrote, "The only
relevant threshold-that a factor 'counsels hesitation' -is remarkably low .... Hesitation is a pause, not a
full stop, or an abstention . . . . 'Hesitation' is 'counseled' whenever thoughtful discretion would pause
even to consider . "65 The court's analysis in this respect was based on the suggestion in Bivens that it
might be appropriate to decline to recognize a federal damage remedy if there are "special factors
counselling hesitation."66 Although we do not think that the Bivens Court had in mind a standard as
weak as the one applied in the cases discussed above, the Supreme Court's subsequent
jurisprudence does give greater prominence, and broader scope, to this language from Bivens.

CP’s precedent doesn’t guarantee the government will lose, nor subject national
security to judicial scrutiny – but it DOES remove the categorial bar on judicial
consideration of clear Constitutional violations
Vladeck 17 – Professor of Law at UT-Austin
Stephen I. Vladeck, A. Dalton Cross Professor in Law at the University of Texas School of Law and a
nationally recognized expert on the federal courts, constitutional law, national security law, and military
justice. Professor Vladeck has argued multiple cases before the U.S. Supreme Court and the lower
federal courts; has served as an expert witness both in U.S. and foreign tribunals; and has been
repeatedly recognized for his influential and widely-cited legal scholarship, his prolific popular writing, his
teaching, and his service to the legal profession, The Bivens Term: Why the Supreme Court Should
Reinvigorate Damages Suits Against Federal Officers, 2017, The American Constitution Society for Law
and Policy Issue Brief, https://www.acslaw.org/wp-content/uploads/2018/04/The_Bivens_Term.pdf

Although they took very different paths to the Supreme Court, Abbasi and Hernandez both have at their
core constitutional claims for which there are no alternative remedies. In Abbasi, the plaintiffs are eight
non-citizens who lacked lawful immigration status at the time they were arrested as part of the post-9/11
roundup—but who also were, as the Court of Appeals concluded, “unquestionably never involved in
terrorist activity.” The plaintiffs did not challenge their arrest and detention, but rather a series of decisions
taken by both lower-level and senior FBI, DOJ, and immigration officials to subject them to the same
harsh and punitive treatment as those detainees who were terrorism suspects, arguing that such
carelessness violated their rights under the Free Exercise Clause of the First Amendment, the Fourth
Amendment, and the Due Process Clause of the Fifth Amendment. In a lengthy, divided decision, the
Second Circuit allowed the plaintiffs’ Bivens claims under the Fourth and Fifth Amendments to proceed,
but held that the First Amendment claim would require extending Bivens into a “new context,” and was
thus not appropriately the basis for a Bivens claim. In her dissent, Judge Raggi argued that “national
security” was a special factor counseling hesitation before recognizing a cause of action under the Fourth
and Fifth Amendments. As she wrote, “when, as here, claims challenge official executive policy (rather
than errant conduct by a rogue official—the typical Bivens scenario), and particularly a national security
policy pertaining to the detention of illegal aliens in the aftermath of terrorist attacks by aliens operating
within this country, Congress, not the judiciary, is the appropriate branch to decide whether the detained
aliens should be allowed to sue executive policymakers in their individual capacities for money
damages.”25 But whereas the lower courts have at times invoked “national security” as a special factor
counseling hesitation before recognizing a Bivens remedy, the Supreme Court has never followed suit—
perhaps because, as in Abbasi, it would effectively immunize government officers from any constitutional
violations arising out of policies labeled as being related “national security,” even when the alleged
violations themselves have no plausible connection to national security considerations. Indeed,
overreaching out of a desire to protect the country may very well go to the reasonableness of the
government’s conduct under the Fourth Amendment, or the strength of the government’s interest under
the Fifth Amendment. But to allow it to cut against a cause of action altogether is to foreclose relief even
when the government’s conduct is unreasonable under the Fourth Amendment or lacks a sufficiently
strong interest under the Fifth Amendment. In other words, there are easy and obvious ways adequately
to accommodate the government’s legitimate concerns in these cases without using Bivens analysis to
foreclose all relief. And although the Abbasi case brings with it at least the specter of national security, it
is difficult to see a similar shadow looming over the Hernandez case—where the constitutional claim is
simply that a single, rogue officer (what Judge Raggi called “the typical Bivens scenario”) committed an
unjustified act of lethal force against an unarmed Mexican boy while patrolling the U.S.-Mexico border. In
opposing certiorari in Hernandez, the government suggested that “foreign relations” concerns are a
special factor justifying judicial skepticism of a Bivens remedy—even though the Mexican government has
repeatedly clamored for a U.S. remedy (including in an amicus brief filed in the Supreme Court last
month), given the unavailability of means by which Officer Mesa can be held to account under Mexican
law. The government has also suggested that “extraterritoriality” is a special factor—that courts should
never recognize Bivens claims where the underlying conduct took place across the U.S. border,
analogizing to the presumption against extraterritorial application of statutes. But again, this both ignores
the difference between constitutional and statutory rights and conflates the merits with the cause of action
question. Hernandez raises an important and interesting question about how the Fourth and Fifth
Amendments apply in the unique context of the U.S.-Mexico border—one of the questions on which the
Court granted review. But if either provision does apply, and if Officer Mesa’s conduct violated the victim’s
constitutional rights, then to decline to recognize a Bivens remedy in Hernandez is potentially to sanction
such reckless conduct in the future—since there will never be a way to obtain injunctive relief before such
an unlawful shooting takes place. Don’t get me wrong—there may indeed be cases in which there are
compelling reasons why the federal courts should stay their hand before allowing a plaintiff to sue directly
under the Constitution for damages. The critical point, though, is that such special factors must be
reasons to disfavor judicial intervention assuming that the plaintiffs’ allegations are true, that their rights
were violated, and that no defense otherwise precludes recovery. That is, even when the plaintiff should
win, we should be of the view that no remedy is appropriate. The problem both Abbasi and Hernandez
highlight is the blurring of these necessarily distinct ideas—and, in the process, the potential categorical
foreclosure of damages remedies to enforce constitutional rights. As Seventh Circuit Judge Ann Williams
wrote in 2012, such a restrictive approach to Bivens portends “a doctrine of constitutional triviality where
private actions are permitted only if they cannot possibly offend anyone anywhere. That approach
undermines our essential constitutional protections in the circumstances when they are often most
necessary. It is no basis for a rule of law.”
 —AT: Exec Flex/Nat’l Sec
No spillover to their impact turns—And our internal links comparatively outweigh
any risk
Vladeck 16 – Professor of Law at UT-Austin
Stephen I Vladeck, A. Dalton Cross Professor in Law at the University of Texas School of Law and a
nationally recognized expert on the federal courts, constitutional law, national security law, and military
justice. Professor Vladeck has argued multiple cases before the U.S. Supreme Court and the lower
federal courts; has served as an expert witness both in U.S. and foreign tribunals; and has been
repeatedly recognized for his influential and widely-cited legal scholarship, his prolific popular writing, his
teaching, and his service to the legal profession, and Robert C. Hilliard, et al., HERNANDEZ v. MESA,
2016 U.S. S. Ct. Briefs LEXIS 4499, Initial Brief of Appellant-Petitioner, On Writ of Certiorari to the United
States Court of Appeals for the Fifth Circuit, 2016

Nor would applying Fourth Amendment protection in this case subject activities like U.S. surveillance in
Mexico or elsewhere to constitutional scrutiny. "This case addresses only the use of deadly force by U.S.
Border Patrol agents in seizing individuals at and near the United States-Mexico border." Rodriguez v.
Swartz, 111 F. Supp. 3d 1025, 1037 (D. Ariz. 2015). It does not involve extraterritoriality of the Fourth
Amendment more broadly. Nor does it implicate national-security concerns, "divert the attention of military
personnel from other pressing tasks," Boumediene, 553 U.S. at 769, or interfere with immigration-related
activities. See App. 36a (Prado, J., concurring) ("This is not a case involving a drone strike, an act of war
on a distant battlefield, or law-enforcement conduct occurring entirely within another nation's territory.");
Bitran, Boumediene at the Border?, 49 Harv. C.R.-C.L. L. Rev. at 257 ("[T]he case has no bearing on
Congress's power to decide which noncitizens will be admitted to the United States.").
The Fourth Amendment, moreover, has a built-in mechanism to address unique concerns that may [*51]
arise in the cross-border context: the substantive standard of reasonableness. Although some judges
expressed concern below about the "line drawing" inherent in functionalism, App. 8a, courts have
experience drawing lines in Fourth Amendment cases. This Court's cases, for example, already recognize
that the border is not just a formal line, but includes "functional equivalents," which take into account
objective factors like proximity to the border as well as practical concerns. See Almeida-Sanchez v.
United States, 413 U.S. 266, 272-73 (1973) (holding that roving patrol units "at least 20 miles north of the
Mexican border" were not considered the "functional equivalents of border searches"); United States v.
Martinez-Fuerte, 428 U.S. 543, 550 (1976) (holding that a less-intrusive permanent Border Patrol
checkpoint "65-90 miles from the nearest points of the Mexican border" was justified by practical
concerns). Nor is this mode of analysis unique to the border. Ordinary search-and-seizure jurisprudence,
through the doctrine of curtilage, recognizes that Fourth Amendment protection does not stop at the
building's edge. This doctrine requires courts [*52] to consider such factors as "the proximity of the area
claimed to be curtilage" and "whether the area is included within an enclosure," United States v. Dunn,
480 U.S. 294, 301 (1987), and has its origins in a case where the curtilage extended to the length of a
"cannon-shot" from Fort Leavenworth, United States v. Stone, 69 U.S. (2 Wall.) 525, 534 (1864). The
Court can draw upon this familiar doctrine to conclude that the Fourth Amendment's protection against
unreasonable lethal force extends at least the length of a gunshot from the border.
While the costs of recognizing a Fourth Amendment right here are minimal, the costs of denying it are
high. "If the Constitution does not apply here, the only check on unlawful conduct would be that which the
Executive Branch provides"--either through extradition, criminal proceedings, or internal discipline (none
of which have yet proved up to the task). App. 87a-88a. At best, that regime "would permit a striking
anomaly in our tripartite system of government," allowing the Executive to operate "without legal
constraint" beyond that which is self-imposed, while damaging our relationship with an important [*53] ally
and border partner. Boumediene, 553 U.S. at 765. At worst, it would create "perverse and disturbing
incentives" for border officers, in effect telling them that if they simply ensure that Mexicans are standing
on the Mexican side of the border, they can shoot with impunity, free of constitutional constraints. App.
42a. That result would not only resurrect the territorial formalism that Boumediene rejected; it would
enable the Executive to "switch the Constitution on or off at will," 553 U.S. at 727, producing "zones of
lawlessness where the fortuity of one's location at the time of a gunshot would mark the boundary
between liability and impunity," App. 42a (Prado, J., concurring). Boumediene does not permit that result.

Even If – Other constraints ensure it’s super limited, prevents their impact. AND,
empirically denied.
Rozenshtein 11 – Law Prof at Minnesota, former Attorney Advisor in the Nat Sec Division of the DOJ
Alan Z. Rozenshtein is an Associate Professor of Law at the University of Minnesota Law School.
Previously, he taught law at the Georgetown University Law Center and served as an Attorney Advisor
with the Office of Law and Policy in the National Security Division of the U.S. Department of Justice and a
Special Assistant United States Attorney in the U.S. Attorney's Office for the District of Maryland. He is a
graduate of Harvard Law School, Argument Recap in Lebron v. Rumsfeld (Padilla's Bivens Suit), 2011,
https://www.lawfareblog.com/argument-recap-lebron-v-rumsfeld-padillas-bivens-suit

Klingler gets up to argue for Captain Catherine Hanft, the former commander of the South Carolina
military brig where Padilla was detained, and for other former military commanders of the facility. Klingler
frames the issue as whether, in the absence of congressional authorization, the nation's "most hotly
debated issues" will be decided in civilian court by civilian juries, and whether military officials will
personally pay for "formulating and executing" various national security policies. The panel notes that, "by
definition," Bivens claims have no statutory authorization. Klingler replies that he mentioned
congressional authorization because, according to Stanley, Bivens is appropriate where "there is
congressionally invited judicial intrusion into military affairs," but that a special factor that would bar a
Bivens claim is a "congressionally uninvited intrusion." Klingler cites Middlebrooks v. Leavitt (4th Cir.) for
the proposition that a civilian suing the military can be denied a Bivens action on these grounds. The
panel asks Klingler whether a Bivens action would be available for a civilian who had not been designated
an enemy combatant and who was only challenging the nature of the detention. Klingler replies that there
wouldn't be, because Stanley makes clear that the judiciary cannot engage in "second-guessing" of
military affairs without "congressional invitation." And, although Dunbar Corp. v. Lindsey (4th Cir.)
allowed a Bivens action against the military in the absence of a congressional invitation, this was
limited to cases (in that case involving land use) that don't involve Article I issues or issues of
military discipline ; Padilla's suit, by contrast, would implicate both.
 —AT: Sovereign Immunity/Torts
No spillover to sovereign immunity/torts, and requirement to prove rights
violation as a threshold issue solves floodgates
Richards 9 – Law Prof at LSU
Edward Richards, Professor, LSU Law Center, Constitutional Torts - Bivens Actions, Public Health Law
Map - Beta 5.7, The LSU Medical and Public Health Law Site, Last updated April 2009,
https://biotech.law.lsu.edu/map/ConstitutionalTorts-BivensActions.html

The Supreme Court created a private damages action against federal officials for constitutional torts (civil
rights violations), which are not covered by the FTCA. In Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971), the Court held that the Fourth Amendment gives rise to a right
of action against federal law enforcement officials for damages from an unlawful search and seizure.
Since a Bivens action is brought against a federal official in the official’s personal capacity, it is not
considered to be an action against the United States and therefore is not barred by sovereign immunity.
Bivens is not a general tort law. The plaintiff seeking a damages remedy under Bivens must first
demonstrate that constitutional rights have been violated.[Davis v. Passman, 442 U.S. 228 (1979) ]
 —AT: Floodgates
Won’t open the floodgates
Starr 9 – Assistant Professor, University of Michigan School of Law
Sonja B. Starr, Sentence Reduction as a Remedy for Prosecutorial Misconduct, Geo. L. J. 97, no. 6
(2009): 1509-66, https://repository.law.umich.edu/articles/1189

Another possible objection is that judicial resources could be strained if defendants start raising claims
that would otherwise surely be declared harmless. But Canada’s experience, so far, provides little basis
for this concern, as in “the vast majority of cases, the offender only asked for a sentence reduction once a
preferred remedy, such as exclusion of evidence or a stay of proceedings, had been denied.”295 Thus,
reduction requests are adjudicated at the sentencing stage on the basis of submissions already made
earlier in the proceedings.296 Moreover, limiting the remedy to cases involving serious prosecutorial
misconduct ought to discourage defense counsel from raising frivolous claims. Any lawyer who is willing
to decline to raise harmless procedural errors will also probably decline to raise trivial ones. And if serious
misconduct has occurred, then it would be a good thing if defense counsel had an incentive to bring it to
courts’ attention.

Also that argument is stupid more broadly

Stern 4 – JD-UPenn
—Italics in original
Toby J. Stern, FEDERAL JUDGES AND FEARING THE "FLOODGATES OF LITIGATION", 6 U. Pa. J.
Const. L. 377 (2004),
https://pdfs.semanticscholar.org/2fba/ca447db1423f5658a046b5df6127516b0f66.pdf

For nearly two hundred years , judges in the United States have expressed a desire to avoid opening
the "floodgates of litigation" upon the court system.2 Although in many cases unfounded ,' the
argument has persisted and judges frequently invoke it today, including those on our nation's highest
Court. Given the high caseloads in the federal courts today ,5 the fear of "opening the floodgates" is
especially understandable.6 This Comment answers Judge Posner's aforementioned question in the
negative. Although rising caseloads have had negative effects on the judicial craft,7 I argue that in
almost all situations , the fear of increased litigation is not a valid judicial argument. The thesis is
simple: in most situations, the floodgates argument is inappropriate. This proposition is based on the
limitations found in Article III of the Constitution and considerations of the proper role of the judiciary vis-a-
vis the other branches of government." My arguments focus on opinions in which ajudge argues against a
certain option due to a fear of unleashing a wave of litigation upon the court system. Nonetheless, the
scope of this Comment should not be confined to the literal invocation of the floodgates, but rather to any
similar argument.9 In Part I, I introduce the floodgates argument and offer examples of its historical and
modern uses. I characterize the floodgates argument as a special type of judicial economy argument. I
also discuss types of cases where the floodgates argument tends to recur, such as those involving
antitrust actions under the Clayton Act or those involving intervenors seeking next friend status. The
floodgates argument recurs in these cases because they involve areas of law where a broad ruling might
provide future plaintiffs an incentive to bring a suit in federal court. In Part II, I discuss the caseload rise in
the federal courts that has occurred over the past forty years. I discuss the implications of that rise on
both the judicial craft in general and on the legitimacy of judicial concern for its own efficiency. There are
several reasons for the rise in the federal caseload-including population increases, congressional grants
of federal jurisdiction to remedy employment discrimination, broader Supreme Court interpretations of 42
U.S.C. § 1983 and of habeas corpus doctrines, and additional sources such as the reduction in legal
costs. I also discuss the effects of the caseload on court functioning, including resolution of more cases in
the pretrial stages and a greater reliance by some judges on their law clerks in order to provide
timelyjustice. I conclude Part II with a discussion of Judge Posner's thoughts on when, if ever, it is
appropriate for a judge to take caseload considerations into account when ruling on a legal matter. In Part
III, I present my criticism of the floodgates argument in two parts: (1) constitutional concerns regarding the
proper role of the federal judiciary with respect to controlling the rise in caseload, and (2) more general or
prudential concerns regarding the structure and analytical rigor behind common uses of the floodgates
argument. My constitutional argument is twofold. First, I argue that since Article III of the Constitution
leaves control over the jurisdiction of the federal courts to Congress, a ruling based on a concern over
judicial economy would be a separation of powers violation. That is, if the federal courts are
overburdened, Congress must ameliorate the situation through its control of federal court jurisdiction. The
second component of my constitutional argument asserts that in the realm of statutory interpretation,
invoking the floodgates argument improperly attributes a caseload-limiting desire to Congress that it may
not have had, or at least that the proponent of the floodgates argument does not explicitly recognize. My
nonconstitutional argument (which I refer to as my "prudential" case against the floodgates) points out the
argumentative holes that exist in common usages of the floodgates argument. First, I criticize
floodgates arguments because they are not accompanied by an analysis tending to demonstrate that a
certain judicial decision would, in fact , lead to a high amount of new federal court litigation . Second, I
observe that the floodgates argument is almost never the central component of its proponent's legal
argument. I question the necessity of this seemingly ancillary argument (especially considered alongside
the argument's other flaws). My third prudential criticism is that use of this flawed argument is often seen
as pretext for other considerations. One concern is that the argument might simply be pretext for reducing
the burden of the high federal caseload on a judge arguing against opening the floodgates. As such, it
calls into question, as Judge Posner puts it, the "perceived legitimacy" of that judge's role. Finally, I note
the problem of consistency: even if judges were to carefully explain why they believed that a certain
decision would lead to a rash of litigation, there is no touchstone for what constitutes a mere
acceptable rise in caseload and what constitutes a flood of litigation so heavy that it should alter the
outcome of a case. If my criticisms of the floodgates argument and its uses may be considered an "anti-
floodgates rule," then my next subsection explores suitable exceptions to that rule. That is, I explain the
situations in which a floodgates argument would not suffer constitutional flaws. Before I explain these
exceptions, however, I note that the exceptions do not overcome the prudential flaws in floodgates
arguments. My first exception allows that a floodgates argument might be appropriate in the realm of
statutory interpretation when limiting federal court caseloads would advance the statutory purpose of the
law at issue. Thus I argue that when interpreting provisions of the Prison Litigation Reform Act, for
example, floodgates considerations might be appropriate since that statute was enacted, in part, to curb
"frivolous lawsuits." My second exception is related to the first; it states that floodgates arguments may be
appropriate in statutory interpretation when a flood of lawsuits would frustrate that law's statutory purpose.
For example, a court might decide that an interpretation of the Antiterrorism and Effective Death Penalty
Act, a law which sought (in part) to curb federal habeas corpus petitions, would lead to a flood of habeas
petitions that would frustrate that law's habeas-limiting purpose. I call my third exception the "total judicial
failure" exception. This exception is reserved for a situation in which a court is faced with the opportunity
to rule in a way that would lead to so many lawsuits that it would essentially grind the federal courts to a
halt. Although such a situation seems unlikely, it is still necessary to recognize it as an exception. In short,
I am arguing that the Constitution's framers would not have created a court system in Article III and then
allowed those courts to make themselves nearly useless. My fourth exception recognizes that a fear of
increased litigation may not be premised on the burden it would put on the federal court system. This
exception would arise in situations where a flood of litigation could threaten the effectiveness of a branch
of government other than the courts. This consideration (among others) underlays the Supreme Court's
decision in Nixon v. Fitzgerald to grant the President of the United States absolute immunity from § 1983
suits for actions taken in his official capacity. Finally, I argue, albeit cautiously, that if a court truly were to
have no guidance either way on an issue (or if two options were in a decisional dead heat), caseload
considerations would be appropriate. In Part IV, I apply my reasoning to what I consider a difficult
example -one that walks the line between the rule I offer and its exceptions. I first lay the groundwork for
my example, in which I consider whether the Supreme Court's decision in Apprendi v. New Jersey should
be applied retroactively on collateral review. In the Apprendi decision, the Court held that any fact (other
than a prior conviction) which causes a criminal sentence to be longer than the statutory maximum must
be proven to a jury beyond a reasonable doubt. An additional question, which the Apprendi Court did not
address, is whether prisoners may collaterally attack their sentences that would have violated Apprendi
had it been the law of the land at the time of their sentencing. This question has vast implications for
federal court caseloads : if prisoners were permitted to prevail on such a theory, then thousands of
eligible prisoners would have potentially meritorious lawsuits. I follow my discussion of Apprendi with an
explanation of the analysis that a court must employ when considering whether or not to apply a case
retroactively on collateral review. I further note that what is interesting about this question is not that
every regional circuit court of appeals has ruled that Apprendi should not be applied retroactively on
collateral review, but rather that in so doing , none of those courts made a floodgates argument . I
conclude this Comment with an explanation of how a judge might go about making the floodgates
argument in one of those cases if she were to take my "rule" and its "exceptions" into account. I argue
that the complexity of considering caseload implications in light of murky statutory intent counsels in
favor of leaving the floodgates out of federal court decisions .
***Solvency/Mech***
 Policing—How the ruling works—1NC
That solves—Courts can reform the police by allowing damages—Key issue for
immunity vs. judicial remedy
Sobel 20 – Lawfare, JD-Harvard Law
Nathaniel Sobel, JD from Harvard Law School, has worked on criminal justice, election law, and foreign
policy issues for Lawfare, What Is Qualified Immunity, and What Does It Have to Do With Police Reform?,
6 June 2020, https://www.lawfareblog.com/what-qualified-immunity-and-what-does-it-have-do-police-
reform

The protests ignited by the killing of George Floyd have put a spotlight on the legal doctrine of qualified
immunity. While qualified immunity is not at issue in the prosecution of former Minneapolis police officer
Derek Chauvin and the three other former officers who face criminal charges stemming from Floyd’s
death, it is one of many structural factors that make it difficult to hold police officers accountable for
wrongdoing. While Lawfare contributors have occasionally discussed qualified immunity in the past, this
post provides answers to some key questions that have arisen in light of the current national
conversation. (Note that, while some states have developed parallel immunities for state law violations,
this post addresses qualified immunity only in the context of claims brought under federal law.)
What Is Qualified Immunity?
Qualified immunity is a judicially created doctrine that shields government officials from being held
personally liable for constitutional violations—like the right to be free from excessive police force—for
money damages under federal law so long as the officials did not violate “clearly established” law. Both
42 U.S.C. § 1983—a statute originally passed to assist the government in combating Ku Klux Klan
violence in the South after the Civil War—and the Supreme Court’s decision in Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics (1971) allow individuals to sue government officials for
money damages when they violate their constitutional rights. Section 1983 applies to state officials, while
Bivens applies to federal officials. Because damages are often the only available remedy after a
constitutional violation has occurred, suits for damages can be a crucial means of vindicating
constitutional rights. When government officials are sued, qualified immunity functions as an affirmative
defense they can raise, barring damages even if they committed unlawful acts. (Qualified immunity is not,
however, a defense to claims for injunctive relief.)
The Supreme Court has generally traced qualified immunity back to the immunities available to
government actors when officials were sued for common law torts during the 19th century. The basic idea
is that when Congress enacted § 1983 in 1871, it incorporated the then-existing immunities into the
statute, which the Supreme Court has also extended to Bivens suits. However, recent scholarship has
called into question the Supreme Court’s account of the government immunities available in 1871,
whether Congress intended them to be defenses to § 1983 claims, and the coherence of the relationship
between the history and the modern doctrine.
How Does Qualified Immunity Work?
The landmark case of Harlow v. Fitzgerald (1982) articulated the modern formulation of qualified immunity
that controls today. Jettisoning past precedent that examined the “subjective good faith” of the officer who
committed the alleged violation, the Harlow court adopted a new test framed in “objective terms.” In
Harlow, the court established that a plaintiff could overcome qualified immunity only by showing that the
defendant’s conduct “violate[d] clearly established statutory or constitutional rights of which a reasonable
person would have known.” While the court made clear that the new standard was intended to be more
protective of government officials than its previous test, the court also stated that the standard “provide[d]
no license to lawless conduct.” “If the law was clearly established, the immunity defense ordinarily should
fail, since a reasonably competent public official should know the law governing his conduct,” the court
wrote. But since Harlow, the court has applied the doctrine in three distinct ways that have made it more
favorable to government defendants.
First, in order to show that the law was “clearly established,” the court has generally required plaintiffs to
point to an already existing judicial decision, with substantially similar facts. As a result, as Julian Sanchez
wrote succinctly on Twitter, “the first person to litigate a specific harm is out of luck” since the “first time
around, the right violated won’t be ‘clearly established.’” A recent decision by the U.S. Court of Appeals
for the Ninth Circuit illustrates this point. In that case, a SWAT team fired tear gas grenades into a
plaintiff’s home, causing extensive damage. And while the divided three-judge panel assumed that the
SWAT officers had in fact violated the plaintiff’s Fourth Amendment rights, it nonetheless granted qualified
immunity to the officers because it determined that the precedents the plaintiff relied on did not clearly
establish a violation “at the appropriate level of specificity.” (The Supreme Court could decide to review
the Ninth Circuit’s decision in this case as soon as Monday, June 8.)
Second, in Pearson v. Callahan (2009), the Supreme Court altered the way in which courts apply the
doctrine in a manner that created a significant obstacle for civil rights plaintiffs. In an earlier decision,
Saucier v. Katz (2001), the high court had held that when assessing a qualified immunity defense, courts
must first determine whether there was a violation of a constitutional right and then move on to analyze
whether the law was clearly established. But in Pearson, the justices reversed course, allowing courts to
grant qualified immunity based only on the clearly established prong—and without ever determining if
there was a constitutional violation. As Judge Don Willett of the U.S. Court of Appeals for the Fifth Circuit
explained in a recent opinion, this creates a “Catch-22” for civil rights plaintiffs. Because courts often take
what Willett called the “simpler” route of resolving a case based on the “clearly established” inquiry—
rather than engaging in the “knotty constitutional inquiry” of whether the officials violated the Constitution
—Pearson has resulted in fewer precedents finding constitutional violations. In turn, as Willett put it, “ No
precedent = no clearly established law = no liability.” And according to a recent study conducted by
Reuters: “Plaintiffs in excessive force cases against police have had a harder time getting past qualified
immunity since [Pearson].”
Third, as Harvard Law professor and ACLU lawyer Scott Michelman notes in a recent article, the
Supreme Court’s construct of a “reasonable officer” has shifted since Harlow to grant government officials
greater deference. In a 1986 decision, the high court famously wrote that qualified immunity protects “all
but the plainly incompetent or those who knowingly violate the law.” Since then, the Supreme Court has
stated that a defendant’s conduct is to be judged on the basis of “any reasonable officer” or “every
reasonable official”—“thus implying,” as Michelman assesses, “that in order for a plaintiff to overcome
qualified immunity, the right violated must be so clear that its violation in the plaintiff’s case would have
been obvious not just to the average ‘reasonable officer’ but to the least informed, least reasonable
‘reasonable officer.’”
What Is the Justification for Qualified Immunity?
In general terms, the Supreme Court has offered two basic justifications for the doctrine. The Harlow
Court expressly noted that its decision sought to achieve a “balance” between allowing victims to hold
officials accountable and minimizing “social costs” to “society as a whole.” Noting that “claims frequently
run against the innocent, as well as the guilty,” the Harlow court identified four “social costs.” First, the
doctrine aims to avoid “the expenses of litigation” by allowing district courts to dismiss suits against
officers at early stages in the litigation—and without making fact-intensive inquiries into a particular
officer’s motivations. Second, and relatedly, requiring officials to respond to such litigation can “diver[t] …
official energy from pressing public issues.” Third, the court worried that the threat of litigation would
“deter[] … able citizens from acceptance of public office.” And lastly—and most importantly—the court
was concerned that the threat of lawsuits could chill lawful law enforcement conduct. The court wrote that
“there is the danger that fear of being sued will ‘dampen the ardor of all but the most resolute, or the most
irresponsible [public officials], in the unflinching discharge of their duties.’” Along similar lines, in a more
recent opinion, the Supreme Court explained: “[T]he doctrine of qualified immunity gives government
officials breathing room to make reasonable but mistaken judgments about open legal questions.”
Also at the core of the Supreme Court’s jurisprudence is the contention that it would be unfair to hold
government officials to constitutional rules they were not aware of at the time of the violation. The court
first articulated this idea in a pre-Harlow decision, stating that “[a] policeman’s lot is not so unhappy that
he must choose between being charged with dereliction of duty if he does not arrest when he has
probable cause, and being mulcted in damages if he does.” Then in Harlow, the court wrote: “If the law at
that time was not clearly established, an official could not reasonably be expected to anticipate
subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not
previously identified as unlawful.” And a recent case described “the focus” of qualified immunity as
“whether the officer had fair notice that her conduct was unlawful.”
What Are the Arguments Against Qualified Immunity?
As law professors Aaron Nielson and Christopher Walker discuss in a recent article, criticism of qualified
immunity can generally be separated into “two fronts of attack”: first, that it’s bad law and, second, that it’s
bad policy.
On the law, the most notable criticism has come from Justice Clarence Thomas. In a short solo opinion in
a 2017 case, he urged the Supreme Court, “[i]n an appropriate case,” to “reconsider [its] qualified
immunity jurisprudence.” As an originalist, Thomas believes that, in qualified immunity cases, the
Supreme Court should ask “whether the common law in 1871 would have accorded immunity to an officer
for a tort analogous to the plaintiff's claim under § 1983.” But in Thomas’s view, the modern doctrine has
strayed too far from the 19th century immunities. Rather than interpreting the statute, Thomas argued that
the court’s qualified immunity jurisprudence “represent[s] precisely the sort of ‘free-wheeling policy
choice[s]’” that are not within the providence of courts’ authority. In a recent article—which Thomas cited
in his opinion—University of Chicago law professor William Baude explores and rejects the Supreme
Court’s justification “that qualified immunity derives from a putative common-law rule that existed when
Section 1983 was adopted.”
Another major legal criticism is that qualified immunity stunts the development of constitutional law.
Especially after the Supreme Court’s Pearson decision (discussed above), as Judge Willett lamented, the
consequence is that “[i]mportant constitutional questions go unanswered.” This is of special concern in
cases involving new technologies or practices.
On the policy side, qualified immunity opponents contend that the Harlow Court got the balance wrong.
Justice Sonia Sotomayor—who has called qualified immunity a “one-sided approach” that “transforms the
doctrine into an absolute shield for law enforcement officers”—captures the core of that critique in a
recent opinion, which Justice Ruth Bader Ginsburg joined. As Sotomayor put it, qualified immunity “sends
an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and
think later, and it tells the public that palpably unreasonable conduct will go unpunished.”
Such reasoning has generally attracted a diverse ideological coalition. Advocates of reforming qualified
immunity on the political right tend to emphasize values of law enforcement “accountability” and defense
of private property, while the arguments from the left focus on racial justice and broader police reform
efforts—but there is nonetheless considerable overlap. Recently, a self-described “cross-ideological”
group of organizations filed multiple petitions urging the Supreme Court to take up the issue of qualified
immunity.
UCLA law professor Joanna Schwartz argues that qualified immunity does not even fulfill the policy goals
it aims to achieve. In one article, Schwartz found that in a robust sample of cases, “governments paid
approximately 99.98 percent of the dollars that plaintiffs recovered in lawsuits alleging civil rights
violations by law enforcement,” undermining the Supreme Court’s fears that defendant officers would
have to bear the liability themselves. And in another article, she found that qualified immunity so rarely
screens out claims before discovery and trial that it does not serve its intended goal of shielding
government from the costs of litigation.
One more additional line of argument is offered by the MacArthur Justice Center’s Amir Ali and Emily
Clark in a recent op-ed. They make the case that qualified immunity prevents “many [civil rights] claims
[from being brought] in the first place.” Under a 1976 statute, Congress passed a law allowing lawyers
who represent victims in civil rights actions to recover for their time. But since those fees are not available
when a case is dismissed based on qualified immunity, they argue that “victims of civil rights violations
may be less likely to find a lawyer who is willing to represent them and suits will not be brought.”
How and When Could Qualified Immunity Change?
The Supreme Court created qualified immunity and could of course overrule it, subject to its principles of
stare decisis. At the court’s private conference on June 4, it considered eight petitions for the court to take
up the issue of qualified immunity next term, meaning that the soonest a decision on the merits could
come down would be next year. Two additional qualified immunity petitions were listed as “rescheduled,”
implying they would be considered at a future conference. The petitions considered at the June 4
conference include two police shootings, a case where officers deployed a dog on a suspect who had
already surrendered, and a case where police used a Taser on a man who died while in custody, among
others. The Supreme Court could announce its decisions from the June 4 conference as early as the
morning of Monday, June 8. There is no guarantee it will hear any of them, however—on May 18, the
court declined to hear three qualified immunity cases.
 2NC Ext—AT: Ruling makes no sense
Solves, and cracks qualified immunity—Key to Bivens
CRS 6/25 – Report for Congress on the jurisprudence of qualified immunity
Congressional Research Service (CRS), Legal Sidebar Prepared for Members & Committees of
Congress, Policing the Police: Qualified Immunity and Considerations for Congress, updated June 25,
2020, https://crsreports.congress.gov/product/pdf/LSB/LSB10492

In the wake of unrest arising from George Floyd’s death on May 25, 2020, after a Minneapolis police
officer pressed a knee into his neck, broader questions have arisen with regard to how existing law
regulates the conduct of local police officers. While these issues are explored more broadly in these
separate Sidebars, one particular issue of recent judicial and legislative focus has been the doctrine of
qualified immunity . Qualified immunity is a judicially created doctrine shielding public officials who
are performing discretionary functions from civil liability . The doctrine plays a particularly prominent
role in defense of civil rights lawsuits against federal law enforcement officials under the Bivens
doctrine and against state and local police under 42 U.S.C. § 1983 (Section 1983). With regard to its
role in civil lawsuits concerning violations of constitutional norms regulating the police, defenders of the
doctrine have suggested that qualified immunity plays an important role in affording police officers some
level of deference when making split-second decisions about whether to, for example, use force to
subdue a fleeing or resisting suspect. Critics of the doctrine have questioned its legal origins and have
argued that its practice has provided too much deference to the police at the expense of accountability
and the erosion of criminal suspects’ constitutional rights. With increasing focus on whether Congress
should legislate to abrogate or otherwise modify the doctrine, this Sidebar explores the legal basis for
qualified immunity, how it has operated in practice, and current debate over the efficacy of the doctrine.
The Sidebar concludes by discussing considerations for Congress regarding qualified immunity.
 Sentencing—How the ruling works—1NC
That solves—The Court can directly mandate sentencing changes, and do so as a
judicially-created remedy for infringement of Constitutional rights
Starr 9 – Assistant Professor, University of Michigan School of Law
Sonja B. Starr, Sentence Reduction as a Remedy for Prosecutorial Misconduct, Geo. L. J. 97, no. 6
(2009): 1509-66, https://repository.law.umich.edu/articles/1189

Alternatively , courts could bypass the legislature and order sentence reductions themselves ,
where they have authority to do so. Such authority could be grounded in supervisory powers or in the
federal or state constitution .
The U.S. Supreme Court has the supervisory authority “to prescribe rules of evidence and procedure
that are binding” in federal courts,276 and state high courts enjoy similar prescriptive authority with
respect to state courts.277 But this authority is trumped by conflicting legislation or constitutional
requirements—it is a gap-filling authority.278 Notably, this means that the U.S. Supreme Court cannot
rely on it to order sentence reductions for “harmless” errors. Federal Rule of Criminal Procedure 52(a)
requires courts to “disregard” errors that do not “affect substantial rights.” The Supreme Court has held
that this rule codifies the harmless error doctrine and that the Court has no supervisory authority to
displace it.279 For the Court to grant sentence reduction in a federal harmless error case, absent prior
congressional authorization , it would have to hold that the remedy is constitutionally required.
Supervisory authority might, however, allow state courts to order sentence reduction for “harmless but
serious” errors, depending on the wording of the state’s harmless error provisions. All 50 states have such
provisions in their statutes or constitutions.280 But they do not all include language, like that of Rule
52(a), requiring courts to “disregard” harmless errors entirely. Instead, some simply prevent courts from
reversing convictions.281 Such provisions seem to allow room for alternative remedies like sentence
reduction. If so, states almost certainly could apply such remedies to federal constitutional errors
occurring in state court as well as to errors of state law.282
Second, courts also have the power to grant any remedies that are constitutionally required , and this
power naturally trumps conflicting legislation . Constitutionally required remedial rules ordered by
the Supreme Court extend both to federal and state courts , and state courts may craft state
constitutional remedial rules. To the extent existing remedial rules are premised on this constitutional
authority, they can be changed by the relevant high courts.
For instance, the U.S. Supreme Court could in its next Batson case hold that sentence reduction is
a constitutionally adequate remedy . Indeed, even a lower court would probably be free to so hold,
because the Supreme Court has never squarely held that automatic reversal is constitutionally required.
Likewise, sentence reduction could be ordered by state courts to remedy misconduct violating the state
constitution.
One practical concern with judicial adoption of sentence reduction is whether it can be reconciled with
existing sentencing legislation. This question has been the main source of controversy surrounding the
permissibility of the remedy in Canada.283 If guidelines or mandatory minimums do not allow sufficient
discretion to permit remedial sentence reduction, they may preclude courts from relying on their
supervisory authority to grant such reductions, because that authority depends on an absence of
conflicting law. Sentence reductions would then have to be premised on courts’ constitutional
authority , or else authorized by the legislature. But advisory guidelines , like the current federal
system , almost surely do not present a problem. While the weight accorded such guidelines remains
unsettled, the Supreme Court has made clear that courts have broad authority to depart from them.284
C. Implementation Concerns: Responses to Objections Regardless of which branch initially adopts a sentencing reduction scheme, its implementation raises some practical questions. In Part IV, I addressed concerns related to commensurability and disparity in the magnitude of reductions; here, I respond to a few additional objections. The first is the possibility that courts would just raise the base sentence to cancel out the required reduction.285 This is unlikely to happen often. First, in many jurisdictions, determinate
sentencing schemes will make it difficult to manipulate the base sentence.286 Second, it is hard to see how an appeals court could engage in such manipulation, because the trial court’s sentence would presumably serve as the starting point for the reduction. Third, most courts are unlikely to want to do so. Studies show that most judges think sentences are too high,287 and moreover, many courts will presumably want to remedy serious prosecutorial misconduct if they can do so without the massive windfall of complete
release.288 Third, any court that would manipulate the base sentence to avoid sentence reduction would surely engage in other kinds of manipulation (like narrowing the right) to avoid current windfall remedies. And finally, even if a court did engage in such manipulation, if it was well disguised, the sentence reduction might still achieve its deterrent and expressive purposes. A variation on this concern is that prosecutors themselves will attempt to offset the impact of sentence reduction by exercising their discretion in ways that
increase base sentences. This concern is more plausible, because prosecu- 283 Compare Carpenter, 2002 CarswellBC 1057 para. 26, with MacPherson, 100 C.C.C. (3d) 216; see generally Bick, supra (discussing the controversy). 284 See Gall v. United States, 128 S.Ct. 538, 602 (2007) (holding that “the Guidelines are only one of the factors to consider when imposing sentence”). 285 See Amsterdam, supra (raising this objection in the speedy trial context); see also Caldwell & Chase, supra, at 71-72 (describing this as a
“legitimate concern”). 286 Caldwell & Chase, supra, at 72. 287 See supra note 67; Calabresi, supra, at 116 (arguing that severe sentencing laws mean that judges won’t put a “thumb on the scale” to increase sentences). 288 Courts have expressed frustration at their own lack of effective remedies for prosecutorial misconduct. See Modica, 663 F.2d at 1182-84; Pallais, 921 F.2d at 691-92. DRAFT—PLEASE DO NOT CITE WITHOUT PERMISSION 54 tors have a significant incentive to keep the sentence high. Still, it is not so
easy to see how this would work. Most of prosecutors’ considerable power over sentences lies in their control over charging decisions and pleabargaining.289 But prosecutors tend already to exercise that control to maximize sentences, especially for defendants who choose to go to trial.290 Moreover, the kinds of misconduct I have discussed here generally take place well after the charging and plea stages, at or close to trial. So a prosecutor will usually not be able to respond, after committing misconduct and getting caught,
by ramping up the charges. She could make a higher-than-usual sentence recommendation, but that would be fairly transparent and therefore likely less convincing to the court. She could start to charge more harshly in every case just in case she commits misconduct and gets caught. But any prosecutor so Machiavellian as to plan in all cases for the likelihood of her own misconduct is probably already charging the maximum.291 Finally, even if she did find a way to compensate for the sentence reduction in a particular case,
she wouldn’t be able to avoid the reputational cost of being publicly chastised by the appeals court, which may well be the most significant part of the sanction. A third variation is that legislatures or sentencing commissions will respond by ramping up the base sentences. Analogously, Bill Stuntz has argued that legislatures have historically responded to the expansion of constitutional criminal procedure by expanding the scope and penal severity of the substantive criminal law.292 These concerns might provide a reason to
prefer reforms conducted through the legislature itself, if possible.293 But in any event, it is not clear that sentence reductions would be likelier than current stronger remedies to trigger this kind of political response. Stuntz does not suggest that harsh sentencing legislation is triggered by innovations in sentencing procedure specifically—rather, it responds to perceived “soft on crime” judging more generally. If sentence reductions were less politically controversial than reversals or dismissals, then they might be less likely to
provoke a legislative backlash. And there is some evidence that intermediate alternatives might be attractive to legislatures that dislike current all-or-nothing schemes.294 289 E.g., Standen, supra, at 1509. 290 See supra Part III. 291 Relatedly, Bill Stuntz argues that expanded procedural protections induce prosecutors to change whom they charge, dropping cases that have likely procedural claims in favor of those that don’t. Stuntz, supra, at 4, 28. That argument largely pertains to police procedure, however—charging
practices are much less likely to be affected by improved remedies for prosecutorial misconduct, given the timing of that misconduct. 292 Stuntz, supra, at 7; William J. Stuntz, The Political Constitution of Criminal Justice, 119 Harv. L. Rev. 780, 784 (2006); accord William T. Pizzi, Punishment and Procedure, 13 CONST. COMMENT. 55, 66-67 (1996). 293 See Stuntz, Political Constitution, supra note, at 796, 802-03 (noting that legislatures sometimes expand procedural protections themselves even though they resent judicially
created protections). 294 See HERMAN, supra, at 205-06 (noting that “what remedy to provide [in the Speedy Trial Act] occasioned active debate in Congress because the choices—a severe remedy allow- SENTENCE REDUCTION AS A REMEDY FOR PROSECUTORIAL MISCONDUCT 55 Another possible objection is that judicial resources could be strained if defendants start raising claims that would otherwise surely be declared harmless. But Canada’s experience, so far, provides little basis for this concern, as in “the
vast majority of cases, the offender only asked for a sentence reduction once a preferred remedy, such as exclusion of evidence or a stay of proceedings, had been denied.”295 Thus, reduction requests are adjudicated at the sentencing stage on the basis of submissions already made earlier in the proceedings.296 Moreover, limiting the remedy to cases involving serious prosecutorial misconduct ought to discourage defense counsel from raising frivolous claims. Any lawyer who is willing to decline to raise harmless procedural
errors will also probably decline to raise trivial ones. And if serious misconduct has occurred, then it would be a good thing if defense counsel had an incentive to bring it to courts’ attention.

CONCLUSION
Current remedies for prosecutorial misconduct are strikingly ineffective, largely because courts view them
as too costly to grant. Scholars too often have been unrealistic about this remedial deterrence problem,
proposing stronger remedies for misconduct when the more realistic solution might be nominally “weaker”
ones. Adding sentence reduction to current all-or-nothing remedial schemes could help to deter and
condemn prosecutorial misconduct, while avoiding the social costs of retrial and providing a fair measure
of relief to defendants whose rights have been violated.
This Article has sought to make the case for sentence reduction in terms of three distinct remedial
purposes—deterrence, corrective justice, and expressive condemnation—that might strike some readers
as being in tension. I have been deliberately agnostic as to the “proper” purpose of criminal procedure
remedies, for several reasons. First, there may not always be one right answer—such remedies (like, for
instance, civil damages297 or criminal punishment298) can and do simultaneously serve multiple
purposes, or different purposes in different contexts.299 Second, because I believe sentence reduction
can effectively serve all three goals, there is no real need to choose—the case for sentence reduction, I
hope, is overdetermined.300
That said, of course there would be cases, if my proposal were adopted, in which the various goals would
support sentence reductions of quite different magnitudes. Most notably, in cases involving serious
prosecutorial misconduct that nonetheless caused the defendant little identifiable harm, it might be
necessary to sacrifice the objective of corrective justice (by granting a remedy that “overcorrects”) in order
to achieve effective deterrence or condemnation.
Although I have offered a few thoughts on how to resolve such tensions, I have not proposed any firm
rules for balancing competing interests or any formula for calculating the appropriate length of a
reduction. If my proposal were adopted, those details would be important subjects of further judicial,
legislative, and scholarly debate.
Significantly, adding the option of sentence reduction need not mean giving up on the advantages that
current “stronger” remedies may sometimes offer. Under my proposal, reversal would remain required
when misconduct has compromised the reliability of the conviction, and dismissal with prejudice would be
required when delays or other violations have rendered a fair trial impossible. Moreover, even in cases
not involving that kind of prejudice, these strong remedies could remain available as an option for the
exceptional cases in which courts are willing to invoke them. My proposal would eliminate the automatic
remedies of reversal and dismissal for Batson and speedy trial cases, but permit those remedies on a
discretionary basis. For this reason, if reversal or dismissal is necessary for deterrent, expressive, or
corrective purposes in some cases, sentence reduction need not displace it. Rather, sentence reduction
would target misconduct that exists in the very large zone between proper conduct and the extreme
misconduct that currently triggers remedies.
In focusing on cases in which violations have not rendered a conviction unreliable, my proposal poses a challenge to current harmless error doctrine. When deciding what appellate remedy is due for violations of criminal defendants’ procedural rights, courts today start by categorizing the violation in one of two boxes: those requiring some automatic remedy (e.g., Batson and speedy trial violations), or those requiring harmless error review (e.g., Brady violations and most forms of trial misconduct). When considering cases in the
first category, courts face a windfall problem—because the remedy does not depend on the harm experienced by the defendant, it will often be greatly disproportionate to that harm, and the only way to avoid that imbalance is to avoid recognizing a violation at all. When considering cases in the second category, courts face a different problem: they may respond only to one kind of harm (possible wrongful conviction). If that particular harm is absent, no remedy can be given, even if the violation caused other personal or social
injuries or involved misconduct of a type that is often harmful and worth deterring.
My proposed approach is fundamentally different. In the context of prosecutorial misconduct, it treats the cases in both categories the same way, without either presuming harm or narrowly cabining the kinds of harm courts can consider. Instead, for all types of serious misconduct, appeals courts would ask more broadly what harm has resulted, and tailor their remedies accordingly. If the harm includes a reasonable possibility of wrongful conviction, then reversal (or dismissal) is the proper remedy. If not, the inquiry does not
end, because the lesser remedy of sentence reduction may still be justified on corrective, expressive, or deterrent grounds.
As the literature on remedial deterrence suggests, all-or-nothing remedies also pose serious dilemmas for courts in contexts other than prosecutorial misconduct. It may be worth rethinking the current remedial schemes in some of those contexts, and sentence reduction might be an alternative worth considering. I do not mean to suggest, however, that automatic or all-or-nothing remedies have no place in criminal procedure. For many kinds of rights violations, such remedies might be the best option, especially if alternatives
like sentence reduction are not likely to be taken seriously by the wrongdoer. In any event, I leave that project for another day.

For now, I have focused on prosecutorial misconduct for two reasons. First, the sentence reduction
remedy is one that prosecutors, especially, are likely to take seriously. That gives it the prospect of being
an effective deterrent, and also means that it is a meaningful condemnatory remedy—it can be
understood by prosecutors themselves and by their communities as a punishment for misconduct.
Second, there is now a quite longstanding scholarly consensus that the current remedies for prosecutorial
misconduct have failed. If so, it is past time to think creatively about solutions.
 2NC Ext—AT: Ruling makes no sense
The Court could frame it as a remedy for wrongdoing by prosecutors or police or
Congress—That’s Starr
Alternatively, could frame it as a remedy for action by sentencing judges—
Shatters immunity under Bivens
Pucci 87 – JD-Fordham
Jeanne F. Pucci, Immunity Doctrines and Employment Decisions of Judges, 55 Fordham L. Rev. 621
(1987), https://ir.lawnet.fordham.edu/flr/vol55/iss4/6

The doctrine of judicial immunity initially developed in the context of adversarial proceedings in which
judges decided controversies between parties.27 By 1872, the generally accepted immunity rule provided
that judges acting pursuant to their jurisdiction28 were not liable in damages for actions arising from their
judicial acts,29 even if such acts were allegedly malicious, corrupt or performed in excess of
jurisdiction.30 Judges lost their immunity only when they acted in clear absence of jurisdiction,3' as when
a probate judge presided over a criminal proceeding.3 2 The presence of subject matter jurisdiction alone
was sufficient to satisfy the jurisdictional step of the immunity analysis. 33 The absence of statutory or
common law authority to perform an act was irrelevant to the jurisdictional requirement, provided the act
was not expressly prohibited.34
The common law tort action was the only vehicle available to plaintiffs who had claims against judges in
the early years of the development of the immunity doctrine." After Congress enacted the Civil Rights Act
of 1871,36 plaintiffs began to bring their complaints against judges under section 1 of that Act,37 which
provided for protection against depriva tions of civil rights under color of state law." A plain reading of the
statute indicates, and courts and commentators suggest, that section 1983 was intended to abrogate the
immunity that had protected judges before its enactment. 39 The Supreme Court, however, has held that
section 1983 did not abrogate all common law immunities.' The statute is not applicable in certain suits
against state legislators,4 1 prosecutors42 or judges. 3 Therefore, the doctrine has been used to protect
state judges even when their acts violated civil rights guaranteed under federal law or the Constitution."
[FN 43]
43.See Stump v. Sparkman, 435 U.S. 349, 355-56 (1978) (quoting Bradley v. Fisher, 80 U.S. (13 Wall.)
335, 347 (1872)). Allegations against federal officials (including federal judges), the analysis of which is
beyond the scope of this Note, see supra note 7, are considered under a Bivens constitutional tort theory.
See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 395-97 (1971).
The Supreme Court, however, has stated that it is "untenable to draw a distinction for purposes of
immunity law between suits brought against state officials under § 1983 and suits brought directly under
the Constitution against federal officials." Butz v. Economou, 438 U.S. 478, 504 (1978). The doctrine of
judicial immunity, therefore, still precludes recovery from federal judges. See Van Sickle v. Holloway, 791
F.2d 1431, 1435 (10th Cir. 1986).
[End FN]

Extends Bivens to a new context

Barth 77 – Attorney, JD-CWRU
Douglas K. Barth, JD-Case Western Reserve, American lawyer, specializing in the field of Toxic Tort
Litigation, Product Liability Litigation, General Litigation, Immunity of Federal and State Judges from Civil
Suit - Time for a Qualified Immunity?, 27 Case W. Res. L. Rev. 727 (1977),
https://scholarlycommons.law.case.edu/caselrev/vol27/iss3/7

A third potential cause of action , adoption of which would eliminate the necessity for and the
problems inherent in a section 1983 action, 218 is the direct constitutional cause of action with
jurisdiction under 28 U.S.C. § 1331. Although the Bivens case was limited to federal agents , recent
cases have relied on Bivens to imply constitutionally based causes of action for deprivations of
constitutional rights by state agencies and municipalities, 2 19 which could be extended to state
judges . The development of municipal liability is illustrative of this approach.
 2NC AT: violates statutes
Wrong. But even if, Constitutional ruling solves
Starr 9 – Assistant Professor, University of Michigan School of Law
Sonja B. Starr, Sentence Reduction as a Remedy for Prosecutorial Misconduct, Geo. L. J. 97, no. 6
(2009): 1509-66, https://repository.law.umich.edu/articles/1189

One practical concern with judicial adoption of sentence reduction is whether it can be reconciled
with existing sentencing legislation . This question has been the main source of controversy
surrounding the permissibility of the remedy in Canada.283 If guidelines or mandatory minimums do not
allow sufficient discretion to permit remedial sentence reduction, they may preclude courts from relying on
their supervisory authority to grant such reductions, because that authority depends on an absence of
conflicting law. Sentence reductions would then have to be premised on courts’ constitutional
authority , or else authorized by the legislature. But advisory guidelines, like the current federal
system , almost surely do not present a problem. While the weight accorded such guidelines remains
unsettled, the Supreme Court has made clear that courts have broad authority to depart from
them .284
 Forensics—How the ruling works—1NC
That solves—Can remedy the plan through the lens of wrongful conviction—Key
issue for immunity
Ravenell 11 – Assistant Professor, Villanova University School of Law
Teressa E. Ravenell, Assistant Professor, Villanova University School of Law, Cause and Conviction: The
Role of Causation in Section 1983 Wrongful Conviction Claims,
https://www.templelawreview.org/lawreview/assets/uploads/2011/07/Ravenell.pdf

Although wrongful convictions may be an inevitable consequence of our criminal justice system, it
would seem that a person wrongly deprived of his liberty is entitled a civil remedy to compensate for the
mistakes of the criminal system.22 Yet, persons wrongly convicted of a crime who bring § 1983 actions
for an erroneous arrest, detention, or conviction are often denied monetary compensation.23
[FN 23]
23 See INNOCENCE PROJECT, supra note 21, at 34-35 (finding less than half of exonerees were able to
recover compensation). Only 45% of the 200 exonerees who had been cleared through the use of DNA
evidence were able to collect either through state compensation statutes or civil lawsuits. See id. at 34.
[End FN]
There are a number of bases for courts to deny exonerees a § 1983 monetary remedy for their erroneous
conviction. First, although such convictions may be factually wrong, they may not be legally wrong. To
establish liability under § 1983, a plaintiff must prove that the defendant caused him to be deprived of a
constitutional right. Furthermore, even in cases where the plaintiff is able to prove a constitutional
violation the persons responsible for the deprivation are often immune from suit.24
[FN 24]
24 See O’Neal v. Mississippi Bd. of Nursing, 113 F.3d 63, 65 (Miss. 1997) (citing Supreme Court’s narrow
understanding of absolute immunity). Judges , performing judicial acts within their jurisdiction and
prosecutors performing their duties are granted absolute immunity from monetary damages. See id.
Witnesses are similarly granted absolute immunity. See Briscoe v. Lahue, 460 U.S. 325, 325 (1983)
(“No evidence that Congress intended to abrogate the traditional common witness immunity in § 1983
actions.”). Other state actors, such as the police officers who investigated and arrested the plaintiff and
forensic who may have analyzed evidence in the case are often shielded by qualified immunity . See
Harlow v. Fitzgerald, 457 U.S. 800, 818) (“government officials performing discretionary functions
generally are shielded from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”).
[End FN]
Legal scholarship discussing § 1983 actions for wrongful convictions typically focus on the following: (1)
whether wrongful convictions and/or prosecution violates the Constitution and (2) the role of
absolute and qualified immunity in these cases.25
Furthermore legal scholars who do discuss civil remedies for wrongful convictions only focus one or two
actors in the criminal justice process who might be civilly liable.26 Yet, as Harris’s case suggests,
“wrongful convictions do not result from a single flaw or mistake; many factors can be at the root of a
wrongful conviction.”27 Such factors may include biased police lineups, mistaken eyewitness
identification, faulty forensic science , coerced false confessions, and unreliable informants.28
Accordingly, one person is seldom the “cause” of a wrongful conviction. This severely complicates
questions of causation in § 1983 litigation, which requires a plaintiff to prove that each individual
defendant deprived him of a specific constitutional right and the deprivation of this constitutional right, in
turn, caused his injuries.
 2NC Ext—AT: Ruling makes no sense
Courts can much more comprehensively regulate forensic science—But requires
making constitutional rights enforceable, hence the remedy
Garrett 16 – Distinguished Professor of Law at UVA
Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia
School of Law, Constitutional Regulation of Forensic Evidence, 73 Wash. & Lee L. Rev. 1147 (2016),
https://scholarlycommons.law.wlu.edu/wlulr/vol73/iss3/5

It is not just the interpretation of one area of constitutional doctrine that has led to the present
predicament in which forensic science is far too little regulated in criminal courts . It is the
interpretation of multiple overlapping areas of criminal procedure. The U.S. Supreme Court has outright
reversed course in its Confrontation Clause jurisprudence and emphasized the right to confront forensic
scientists. Although this may promote more separation of functions within crime labs and some
improvement in access to analysts on the stand, any effect on the reliability of forensics is highly
attenuated. Far more promising are the Court’s rulings in the area of the Sixth Amendment and fair trial
right to effective assistance of counsel, which in combination with due process , and particularly Brady v.
Maryland rulings, may more comprehensively regulate forensics in the future . Constitutional criminal
procedure is not the primary source for regulating forensics, but as forensics grows in importance in our
criminal justice system, criminal procedure will increasingly keep pace , as developed in the state and
federal courts and ultimately in the U.S. Supreme Court . After all, both an effective defense and a
sound prosecution hinge on the accuracy of the evidence used to produce a conviction.

Specifically, easy to ground it in expansion/vindication of Substantive Due

Process rights
Wells 97 – JD-UGA Law
Michael Wells, Constitutional Torts, Common Law Torts, and Due Process of Law, 72 Chi.-Kent L. Rev.
617 (1997), https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=3083&context=cklawreview

Government officers may harm persons in many ways. When an official inflicts a physical injury, causes
emotional distress, publishes defamatory statements, or initiates a malicious prosecution, the victim's
traditional recourse is a tort suit brought under common law or statutory principles. But an alternative to
ordinary tort may also be available. The growth of damage remedies for constitutional violations in the
decades following Monroe v. Pape' has encouraged litigants to frame their cases as breaches of the
Constitution. These litigants may sue for damages under 42 U.S.C. § 1983 when the offender is a state
employee, or assert the damages cause of action implied from the Constitution in Bivens v. Six Unknown
Named Federal Narcotics Agents2 if the defendant is a federal officer. In either case the Court's task is to
fix the boundary of constitutional tort. It must determine whether the plaintiff has a good claim for breach
of a substantive constitutional right,3 or instead must sue under ordinary tort law. [FN 3] 3. I am not
concerned with cases where plaintiffs' rights to procedural fairness are at issue, as where it is conceded
that the government may deprive a person of a government job, so long as the deprivation is
accompanied by appropriate procedural safeguards. See, e.g., Board of Regents v. Roth, 408 U.S. 564
(1972). These are called "procedural due process" cases. I concentrate on those cases where the claim is
that a given injury is constitutionally impermissible, so that the defendant who committed it must redress
it, whatever procedures may have been followed in carrying it out. Some of these are "substantive due
process" cases. Some, under the Court's regime, are Fourth and Eighth Amendment cases. A detailed
explanation of the difference between substantive and procedural claims may be found in Michael Wells &
Thomas A. Eaton, Substantive Due Process and the Scope of Constitutional Torts, 18 GA. L. REV.
201,215-23 (1984). [End FN] In this Article I examine the Supreme Court's response to the constitutional
theory of recovery. I suggest that the Court's efforts at separating common law torts from constitutional
violations may be evaluated along two dimensions. One inquiry addresses the substantive merits of the
Court's doctrine. It examines the ends the Court has sought to attain and asks how well the Court has
done at achieving those aims. The other set of questions focuses on the Court's methodology and asks
whether the Court has adequately explained its rulings in terms of widely accepted means of adjudicating
constitutional cases, such as analysis of the text, the framers' intent, precedent, and constitutional values.
I take issue with both the substantive outcomes of many constitutional tort cases and the methodology
employed to decide them. These two objections are related, in that the Court's faulty methodological
premises obscure the goals it should be pursuing and lead it toward doctrinal principles that do not well
serve those goals. The Court, for example, has relied heavily on unpersuasive textual arguments to divide
the cases into artificial Fourth, Eighth, and Fourteenth Amendment categories. This misdirected
pigeonholing of cases has led the Court to apply different doctrinal principles from one category of cases
to the next, despite their essential commonality. A better analytical model grounds the whole field of
"constitutional tort for common law wrongs" in the Due Process Clauses of the Fifth and Fourteenth
Amendments. By redressing a variety of personal harms, constitutional tort accords substantive protection
to the "liberty" those clauses safeguard against wrongful government deprivation. Unlike the Court's
multifaceted approach, an overarching substantive due process theory of liability respects the basic unity
among these cases at the boundary of constitutional and common law tort, and rests constitutional tort
doctrine upon a firm foundation. A unitary due process approach also more fully implements the central
principles that underlie this whole area of the law: that constitutional tort reaches all the interests
protected by the common law,4 that it is mainly concerned with redressing abuses of power by
government officers, 5 and that the government owes special tort obligations to persons under state
control.6 The root of the problem is not at all unfamiliar to constitutional lawyers. Many of the Justices are
ambivalent in their attitudes as to whether and when unelected judges should "make law," and their
diffidence leads them to avoid squarely addressing the issues of principle raised by the more difficult
constitutional tort cases. Constitutional tort invites the Court to recognize new rights in a field that was
barren before Monroe triggered massive litigation of this sort. The Court is unwilling to shut the door on
these plaintiffs, whose claims it has now felt the need to vindicate for more than three decades. At the
same time, the Justices are hesitant to make law forthrightly through the vehicle of substantive due
process, a doctrine that has caused the Court trouble for more than a century. The Court's largely textual
approach represents an effort to extend constitutional protection to some boundary7 cases, while
minimizing the use of substantive due process. This strategy is self-defeating. The Court's approach falls
short because it violates traditional criteria of constitutional legitimacy, such as fair treatment of
constitutional text and history. No less important, the Court's approach has produced such a welter of
rules that its doctrine, viewed as a whole, is misguided if not incoherent.
AFF
 2AC Perms vs. Court CP

Perm: Do the CP – The Courts can “enact”. Their definition is arbitrary and
imprecise, especially because the topic says “enact reforms” NOT enact laws.
Wright 13 – JD from UMich
Adam Wright, JD-University of Michigan Law School, Executive Notes Editor for the Michigan Journal of
Race & Law, Federal Constraints on States’ Ability to License an Undocumented Immigrant to Practice
Law, Vol. 19, 2013, https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1004&context=mjrl

A.The Plain Language of the Statute Does Not Confine an “Enactment of a State Law” to
Legislative Enactments
The text of the savings clause does not limit “enactments of State law” to legislative enactments.85
Opponents , nevertheless, argue that only a legislature may enact a law .86 However, plain meaning
and popular use of the word “enact” is not so limited . The Merriam-Webster Dictionary does not
define “enact” as an action exclusive to legislatures ; it is merely defined as “to establish by legal
and authoritative act ,” or “to make into law. . . .”87 “ Enact” is not defined, nor is it generally
thought of, as an action unique to legislatures.
Further, courts commonly refer to court-enacted rules . For example, the California Supreme Court
has discussed the “rules of court enacted in response to [a] constitutional amendment . . . .”,88 the
Delaware Supreme Court has referenced a “statute or rule of court enacted under authority of
law ”,89 and many other state supreme courts and federal appellate courts often have pointed to
court-enacted rules.90 These cases refer to court enacted rules that deal with bearing the cost of
printing a transcript record,91 rules setting the requirements for appeal in state court proceedings,92 and
rules prescribing class action requirements.93 The plethora of these examples indicates that courts
have not restricted the ability to “enact” a law to the legislature .
The fact that these cases refer to court-enacted “ rules” rather than “laws ” is of little significance .
Similar to legislative enactments of law, court rules have “the force of law ” and are in this important
way indistinguishable from legislative laws.94 The U.S. Court of Appeals for the Second Circuit has
stated that “[l]ocal rules have the force of law, as long as they do not conflict with a rule prescribed by the
Supreme Court, Congress, or the Constitution.”95 The Committee, citing Black’s Law Dictionary ,
notes, “‘[ L]aw means more than statutes and includes legislation, judicial precedents, rules, and
legal principles . . .”96 Thus, it follows that a state court may enact a law sufficient to activate §
1621’s savings clause.

Perm: Do Both – Solves their judicial assertion net benefit

Perm: Do the Plan and SCOTUS should hold that <part of problem the plan
addresses> is unconstitutional, compelling remedy
That solves the net benefit, because it lets the Court decide the remedy instead of
making it the statute Congress passes. It’s not intrinsic because it includes all of
the CP except the specification. BUT, even if it is, logically-limited intrinsicness is
good – key to test the intrinsicness of the internal net benefit to the plan – strikes
a goldilocks balance that excludes bad process CPs but allows the good ones.
 1AR – Perm Do CP
‘Enact’ means to legally establish or make law, which the Courts do—Restricting
it to legislatures only is arbitrary, unpredictable and imprecise—[ ]—That’s
Wright

Courts can 'enact reforms'

Winslow 9 – Reporter
Ben Winslow, AG’s office files proposal to end litigation over polygamous trust land, 2009,
https://www.ksl.com/article/6829502/ags-office-files-proposal-to-end-litigation-over-polygamous-trust-land

A judge must ultimately sign off on the proposal, but Wisan has already objected, arguing in court papers
that it violates the reforms enacted by the courts when the trust was taken over. The Arizona Attorney
General's Office has also objected, ex-FLDS members also have concerns over the proposal.

Courts enact changes, even if they don’t enact laws

Coleman 63 – GC at Allied Chemical
Lawrence A. Coleman, General Counsel, Allied Chemical Corporation, The Deep Pocket Rule and the
Jumping Warranty: Strict Products Liability of Manufacturers, Food, Drug, Cosmetic Law Journal ,
November, 1963, Vol. 18, No. 11 (November, 1963), pp. 654-664, http://www.jstor.com/stable/26655781

Our purpose is to comment upon an emergent rule of law that has profound implications for
manufacturers.
It is a rule of law that is jurisprudentially "radical," as it goes to the "roots" of our law ; it is morally dubious,
as it would rob Peter to pay Paul ; it is economically oppressive, as it casts its whole burden on a single
class of businessmen ; and it is wrongly ordained, as it has been enacted by the courts , not our
legislatures .
We refer to the recently developed, judge-made rule that imposes an absolute liability on manufacturers
for injuries sustained by others using their products, even when such products are carefully made and
sold. We refer to what has been termed the "Deep Pocket" Rule.
Background of the Rule The change in our legal order made by the Deep Pocket Rule is best appreciated against the background of the law of products liability as it stood in, say, 1950, a little more than a decade ago. At that time, a manufacturer's products liability was typically based upon two legal theories, one developed under the law of torts (that is, civil wrongs), the other created by the law of sales. The tort theory involved the familiar principle, applicable to us all, that a man is liable to another for injuries caused by his
negligent conduct. Negligence was defined by reference to the objective stand ard of the ordinary care of prudent men. Consequently, a manufac turer who made or sold a product carelessly was liable for the injuries sustained by others using the product. PAGE 654 FOOD DRUG COSMETIC LAW JOURNAL NOVEMBER, 1963 This content downloaded from 141.161.91.14 on Tue, 23 Jun 2020 07:23:49 UTC All use subject to htt Justice Cardozo's Decision Originally, this liabilty for negligence extended only to immedi ate
purchasers of the product, persons in so-called "privity" with the manufacturer. But in 1916 that limitation was removed, at least with respect to dangerous products, by Judge Cardozo of the New York Court of Appeals in a seminal decision,1 and it is probably the current rule that a negligent manufacturer is liable to all who are fore seeably injured by his product. Judge Cardozo's requirement that the product be one that would be "reasonably certain to place life and limb in peril when negligently made"2 seems to have been
more easily satisfied outside New York than within his jurisdiction, so that sofas, lounge chairs, cigarettes, and toy tops, among numerous other products, have been regarded as inherently dangerous in several of the states.3 One is reminded in this connection of the comment of a recently appointed federal judge in the New York Southern District who, sitting for the first time on maritime tort cases, remarked that he had never imagined that there were so many "unseaworthy" vessels plying New York Harbor! The relevant point
here is that under this tort theory, it remains a condition of the manufacturer's liability that he be negligent, that he be at fault, that he be blameworthy. That is the usual tort rule of liability applicable to us all, and in theory at least the manufacturer is neither favored nor disfavored by it. We must quickly add that there are a few special situations in which negligence is not a condition of tort liability, as under work men's compensation statutes, or for activities like dynamiting, that subject others to extraordinary hazards. But the
exceptions under score the otherwise universal rule that men are not liable without fault. Of course, intentional wrongs are actionable without negli gence, but they are hardly an exception to the rule of no liability without fault. Warranties Made by Sellers to Buyers The second theory of products liability was found in the law of sales, and specifically in the warranties that were made by sellers to buyers. 1 MacPherson v. Buick Motor Com pany, Product Liability Cases 827, 217 N. Y. 382 (1916). 2 Case cited at footnote 1, at p.
389. ' Frumer & Friedman, I Products Lia bility 25-26 (1960). STRICT PRODUCTS LIABILITY OF MANUFACTURERS PAGE 655 This content downloaded from 141.161.91.14 on Tue, 23 Jun 2020 07:23:49 UTC All use subject to htt Dean Presser has said that the warranty concept is "a. freak hybrid born of the illicit intercourse of tort and contract." 4 It is a concept with a strange legal history, but in modern times, certainly since the general enactment of the Uniform Sales Act, the warranty has functioned much like a promise
from seller to buyer guaranteeing the quality of goods sold. The promise may be expressly made by the seller, or may be implied by law. In either event, the seller is obligated to deliver goods of the promised quality. If the goods prove defective, the warranty is breached, the seller is liable for consequent damages, and it is no defense that the seller exercised the greatest care in making the product. Here the strict liability normally associated with contract breaches ensues. "In Privity" This is the traditional and proper result;
promises must be kept. The crucial point in 1950, however, was that only the buyer who had purchased directly from the seller could sue for the breach of war ranty. He was, after all, the only other party to the contract of sale, the only party, therefore, to whom the guarantee of quality could ordinarily 5 have been made. He was "in privity." If he resold the goods to a consumer, the latter, not being a party to the original con tract of sale, not being in privity with the manufacturer, could not sue the manufacturer for breach of
warranty ; his remedy was against his immediate seller. Where fault was present, the remote consumer might sue the manufacturer in negligence under Judge Cardozo's ruling mentioned earlier, but not for breach of warranty. Again, we must add that an exception to the no-privity-no-liability in-warranty rule had long existed in the case of food products. Here, manufacturers seem to have had an extensive liability from the begin nings of our law. The rationale of the exception has never been satis factorily traced,6 but a great
teacher of law has suggested a sardonic explanatibn of these food decisions with the comment, "The emotional drive and appeal of the cases centers in the stomach." 7 In 1950, then, the general rules were that manufacturers, if negli gent, might be held liable to all persons foreseeably injured by their 4 Prosser, "The Assault upon the Cita del" 69 Yale Law Journal, 1099, 1126 (1960). 5 Third-party beneficiary doctrine in contract law should not apply. Re statement, Contracts, Sec. 133(1) (b) (1932). 6 See Dickerson, Products
Liability and the Food Consumer, p. 26 (1951); Pres ser, cited at footnote 4, at p. 1103. 1 Llewelyn, Cases and Materials on Sales, p. 342 (1930); quoted in Presser, cited at footnote 4, at p. 1103. PAGE 656 FOOD DRUG COSMETIC LAW JOURNAL—NOVEMBER, 1963 This content downloaded from 141.161.91.14 on Tue, 23 Jun 2020 07:23:49 UTC All use subject to htt products ; and secondly, might be held liable to their immediate cus tomers for breach of warranty, irrespective of negligence. Influential Opinion of 1944
Noted About 1950, ideas that had been germinating in the minds of some of our judges began to bear fruit; one is tempted to say, bitter fruit. An anticipatory expression of these ideas is found in a concurring, but influential opinion of a judge of the Supreme Court of California. In a case appealed to that court8 the facts were that the plaintiff, a wait ress in a restaurant, was injured when a bottle of cola exploded in her hand. (I may say, parenthetically, that bottlers have contributed much to our learning in this field.) Defendant was
a bottler who sold and delivered the bottles to the restaurant. No specific act of negli gence by defendant was shown, but there was no evidence that any one but plaintiff had touched the bottles after delivery. -On this rec ord, the jury found the defendant bottler negligent, and the Supreme Court of California affirmed the judgment. However, Judge Traynor rested his concurrence on broader grounds than the defendant's negligence. He said : "I concur in the judgment, but I believe the manufacturer's negligence should no longer
be singled out as the basis of a plaintiff's right to recover in cases like the present one. In my opinion it should now be recognized that a manufacturer incurs an absolute liability when an article that he has placed on the market, knowing that it is to be used without inspec tion, proves to have a defect that causes injury to human beings. . . . Even if there is no negligence . . . public policy demands that respon sibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that
reach the market. It is evident that the manufacturer can anticipate some hazards and guard against the recurrence of others, as the public cannot . . . the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business. . . . Against such a risk there should be general and constant protection and the manu facturer is best situated to afford such protection." Thus, Judge Traynor, speaking in 1944, holds that, irrespective of the care they exercise, manufacturers may be held liable for
de fective products even to persons, such as the plaintiff-waitress, with whom they have no contractual relations. He suggests that such 8 Escola v. Coca Cola Bottling Com pany of Fresno, 11 Neglegence Cases 88, Product Liability Cases 1053, 24 Cal. 2d 453 (1944). STRICT PRODUCTS LIABILITY OF MANUFACTURERS PAGE 657 This content downloaded from 141.161.91.14 on Tue, 23 Jun 2020 07:23:49 UTC All use subject to htt liability may properly be imposed on manufacturers because they can best afford it as a
cost of doing business. Dean Pound has described this view as resting on the idea "that the manufacturer can stand the loss better than the person injured."9 Here is the "Deep Pocket Rule," full blown. "Assault upon the Citadel of Privity" Within 20 years, the California judge's view was to be shared by some of the most prominent courts in the country, and applied to all kinds of manufacturers. Liability without fault for manufacturers was to be accomplished by an "assault upon the citadel of privity." 10 as Judge Cardozo has put
it. What happened was this : the second theory of product liability, breach of warranty, was retailored to suit the problem. A plaintiff remote from the manufacturer was permitted to base his claim on breach of warranty, notwithstanding the theory that a manufacturer's warranty is a promise to his immediate buyer only. He might recover if it were shown that the product proved defective and the plaintiff was hurt, without showing how or where the defect developed. Proof of careful manufacture would be no de fense to an action for
breach of warranty. The new dispensation would impose an absolute liability without fault on manufacturers generally. To be sure, the refashioning of the warranty theory to achieve this end has met with no little conceptual difficulty.11 A student of the subject has found about thirty different modes of legal analysis for making the warranty "jump." 12 It has been held that the retailer is the manufacturer's agent to sell, that the retailer is the consumer's agent to buy, that the retailer assigns his warranty from the manufacturer to the
consumer, that the consumer is a third-party beneficiary of the retailer's contract with the manufacturer, and so on. When this happens in a legal system, one can be fairly certain that the reasons given by judges have fol lowed, not preceded, the desired result. 9 Pound, An Introduction to the Phil osophy of Law, p. 102 (1953 rev. ed.). 10 Ultramares Corporation v. Touche, 255 N. Y. 170, 180 (1931). 11 Amram and Goodman, "Some Prob lems in the Law of Implied Warranty," 3 Syracuse Law Review, 259, 263-268 (1952). "
Gillam, "Products Liability in a Nut shell," 37 Oregon Law Review, 119, 153 55 (1957). PAGE 658 FOOD DRUG COSMETIC LAW JOURNAL—NOVEMBER, 1963 This content downloaded from 141.161.91.14 on Tue, 23 Jun 2020 07:23:49 UTC All use subject to htt "Strict Tort Liability" Judge Traynor has now made this clear. In a 1963 California opinion, writing this time for a unanimous Supreme Court, and with a battery of supporting decisions now behind him, he writes :13 "A manufacturer is strictly liable in tort when an
article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. . . . Although . . . strict liability has usually been based on the theory of an express or implied warranty running from the manufacturer to the plaintiff . . . the liability is not one governed by the law of contract warranties but by the law of strict liability in tort . . . We need not recanvass the reasons for imposing strict liability on the manufacturer . . . The purpose of such liability is to
insure that the costs of injuries resulting from defective products are borne by the manu facturers that put such products on the market rather than by the injured persons who are powerless .to protect themselves," (Italics supplied.) We must at least be grateful for this candor. The California court tells us that we need no longer concern ourselves with the in tricacies of the jumping warranty, that a new tort has emerged, and that it is specially designed for manufacturers who are without fault. It is simply called, "Strict Tort
Liability." Happily, the California decision is not yet the law of the land. There remain a very large number of states, perhaps a majority, that refuse to make the warranty jump. And the American Law Insti tute's new Torts Restatement imposes strict liability on sellers of food only." But if it is not the law, it is the handwriting on the wall. It has already received glowing approval from no less than Chief Judge Desmond of the New York Court of Appeals. Just last May, speak ing for the court, he referred to Judge Traynor's concept of
"strict tort liability" as "surely a more accurate phrase" for manufacturer liability.15 This is powerful judicial backing for the new philosophy. It behooves us to examine the matter somewhat more closely. 13 Greenman v. Yuba Power Products, Inc., IS Neglegence Cases (2d) 35, 59 Cal. 2d 67 (1963). "Restatement, Torts (Second) Sec. 402A. 15 Goldberg v. Kollsman Instrument Corporation, CCH Products Liability Cases If 5058, 191 N. E. 2d 81, (N. Y. Ct. App., 1963). STRICT PRODUCTS LIABILITY OF MANUFACTURERS
PAGE 659 This content downloaded from 141.161.91.14 on Tue, 23 Jun 2020 07:23:49 UTC All use subject to htt Dubious Morality of the Rule We said at the outset that the Deep Pocket Rule, the rule of strict tort liability for manufacturers, is jurisprudentially radical, in the sense that it goes to the roots of our law. It is, we hope, now ap parent that it does. As we have observed, with few exceptions, our law refuses to impose liability without fault. That principle is firmly embedded in our legal order. To depart from it and create a
special class of de fendants without the benefit of its protection because of their deeper pockets, to (in effect) place manufacturers beyond the pale of law because they can afford it, is seriously to compromise our system of justice. It is difficult to conceive_ of any other sector of our law in which ordinary civil liability is determined with reference to the economic status of the parties. How foreign that view is to our traditional jurisprudence is best seen in this extract from Section 406 of the Soviet Civil Code :16 "In situations where .
. . the person causing the injury is not under a duty to repair, the court may nevertheless compel him to repair the injury, depending upon his property status and that of the person injured." (Italics supplied.) Surely that is a shocking idea to Americans. A prominent teacher of jurisprudence has shown us how one's sense of justice is offended by this kind of discriminatory treatment of a defendant. He posits the case of five men arraigned before a magistrate for the identical offense. The magistrate acquits three, fines one five
dollars, and imprisons the last. These inequalities of treatment arouse the sense of injustice because, as he puts it," ". . . equal treatment of those similarly situated with respect to the issue before the court is a deep implicit expectation of the legal order." It is assuredly a deep implicit expectation of our legal order that parties to a civil proceeding will be equally treated irrespective of their economic status. "Justice is blind," we say, and do not add (as has a wag1S) "Blind she is, an' deef an' dumb an' has a wooden leg." If liability
is to be imposed on the basis of affluence, shall we rule for the small manufacturer when the plaintiff is a giant chain store? Clearly, we are dealing with fundamental moral questions, and it will not do to rob Peter to pay Paul. There is a close kinship between 18 Quoted in Pound, An Introduction to the philosophy of Law, 1953 rev. ed. at p. 103. 17 Cahn, The Sense of Injustice, 1949 at pp. 14-15. 18 Finley Peter Dunne. PAGE 660 FOOD DRUG COSMETIC LAW JOURNAL NOVEMBER, 1963 This content downloaded from
141.161.91.14 on Tue, 23 Jun 2020 07:23:49 UTC All use subject to htt law and morals in the principle of no liability without fault. In mak ing moral judgments, we do not regard men as wrongdoers when they are blameless. Neither should the law. There are, moreover, important social theories involved here. Implicit in the idea of no liability without fault is the notion that if individual men carry on their affairs with reasonable care, society will not penalize them; indeed, that society encourages the energetic, im aginative exercise
of individual free will when done carefully. And conversely, each of us must bear the risks of some injuries that are inevitable in society when no one is at fault. The Deep Pocket Rule takes a very different view of society. It conceives that a life free of economic risks is now to be guaranteed everyone by the law, by making Good Samaritans out of manufactur ers. There are to be no more luckless victims. It is not our purpose to examine the relative merits of these two social theories. The point here is that the Deep Pocket Rule
pre supposes a view of society that sharply diverges from the theory that has reigned heretofore. There is, finally, an economic assumption under the strict liability theory that is disturbing. Economic Validity The California court held that the manufacturer is properly the victim of the Deep Pocket Rule because he can insure his liability and transfer his costs to ultimate consumers. Passing the question whether the consuming public should pay for the plaintiff's injuries, how valid is that assumption as a matter of economics ? •
There are about 165,000 active manufacturing corporations in the United States. Of these, 90 per cent are corporations with total assets of less than $1 million.19 The nameless, typical manufacturer, therefore, is overwhelmingly in the category of small business. In the absence of insurance, ability to withstand product liability claims is plainly limited, for judgments in this area are not uncommon in five and six figures. 19 Quarterly Financial Report for Man ufacturing Corporation, First Quarter 1963 (FTC-SEC) at p. 61. Figures
are based on corporation income tax forms filed in 1960-61. Manufacturing part nerships and single proprietorships are excluded, but would probably increase the stated percentage. STRICT PRODUCTS LIABILITY OF MANUFACTURERS PAGE 661 This content downloaded from 141.161.91.14 on Tue, 23 Jun 2020 07:23:49 UTC All use subject to htt The Question of Insurance May insurance be expected to solve his problem? It seems clear that complete insurance coverage of strict liability would require that insurers
guarantee the quality of a manufacturer's research, the efficiency of his manufacturing and packaging tech niques, and the warranties printed on his labels or uttered by his sales men. Coverage of this scope is not now available, and, in view of the enormity of the risk entailed, will probably not become available in the foreseeable future. What is normally available, therefore, does not fully meet the risks involved. The text of a given policy may fail to include particu lar risks from coverage, .because heretofore they were not
considered the reasonable subject of liability. Similarly, as any verdicts increase in amount, a manufacturer may well find himself uncovered for sub stantial sums. The costs of this insurance cannot be lightly dismissed. A small manufacturer of a general line of chemicals with sales of, say, $10 million a year, desiring reasonable coverage, might well be paying an annual premium of $30,000. If his sales were chiefly of products with the special risks of bodily injury, his premium might be $45,000. For large chemical companies,
premiums may be in the order of half a million dollars, depending on experience. And, of course, as the courts broaden the scope of liability and juries bring in ever larger verdicts, premiums will climb. Will Higher Prices Be the Result? Can these insurance costs be passed on to customers as higher prices, as the courts assume ? A recent study of the pricing policies of 200 companies sponsored by the National Industrial Conference Board 20 suggests not. The determinants of price are shown to be multiple; costs may be one
of these, but are rarely controlling, frequently are of little importance, and, indeed, are often unknown. Rather, the economic characteristics of a product, whether new or old, whether capital goods or consumer goods, whether differentiated goods or standardized goods; the type of firm involved, whether multiproduct or single product; the extent of competition, domestic and foreign ; the role of demand in relation 20 Backman, Pricing : Policies and Practices (1961). TAGE 662 FOOD DRUG COSMETIC LAW JOURNAL—
NOVEMBER, 1963 This content downloaded from 141.161.91.14 on Tue, 23 Jun 2020 07:23:49 UTC All use subject to htt to the availability of substitute products, consumer purchasing power, and habits and tastes ; public relations considerations, and other forces; any and all of these may, for a given company and product, be more crucial than costs in determining price. The report concludes :21 . . it is clear that the role of costs in pricing has been considerably exaggerated. Certainly, costs cannot be ignored in pricing. But
neither can the many other factors discussed in this analysis. While cost-price relationships may be important, it does not follow that cost determines price. On the contrary, under many circumstances the flow is in the opposite direction. The price that can be obtained under prevailing conditions of demand and the pressures of competition often determines the costs that a company may profitably incur." Thus, in the many cases in which a manufacturer's price is deter mined by noncost factors he cannot pass on his increased
costs. He may, in fact, be locked into a given price by external economic forces so that increased costs of product liability come out of his pocket. And if, as is probable, he is a small manufacturer, his pocket is not very deep

Which brings me to my final point. We have indicated that the Deep Pocket Rule is an expression of
radical jurisprudence , dubious morality, novel social theory and bad economics. Apart from the merits
of each of these criticisms, and mindful only of the magnitude of the change that the rule effects, surely
it is bad government for the courts, rather than the legislatures , to have enacted it.

“Reforms” can be enacted in TWO ways—Through new laws OR new rules that
IMPLEMENT existing ones, like the counterplan
DOI, No Date
US Dept. of the Interior, Federal Reforms, https://revenuedata.doi.gov/how-it-works/federal-reforms/
The federal government reforms laws and regulations by enacting new legislation and proposing
new rules to implement the legislation . Reforms are recommended by oversight organizations, such
as the Inspector General or the Government Accountability Office.

Can enact some major reforms without legislative involvement

Tamburin 17 – Covers justice for The Tennessean
Adam Tamburin, Reporter-Tennessean, Tennessee Supreme Court backs 'major reforms' to legal
representation for poor, 2017, https://www.tennessean.com/story/news/2017/10/03/tennessee-defense-
lawyers-public-defenders-courts/728396001/

The Tennessee Supreme Court supports " major reforms " to the way the state helps poor people get
legal representation after a report called for sweeping changes to the system .
The Tuesday announcement came after the court's Indigent Representation Task Force issued a series
of wide-ranging recommendations in April. Those recommendations were based on 18 months of work,
including frank conversations with defense attorneys who warned that current rules would lead to lawyer
burnout and civil lawsuits.
“The task force confirmed what many of us already suspected: The system needs major reforms,” Chief
Justice Jeff Bivins said in a statement. “While no perfect solution exists, the Court believes the
improvements we commit to today will move the state toward a more efficient, effective means of
providing this representation that our federal and state constitutions guarantee.”
While the court can enact changes to some rules on its own , others will require collaboration with
the governor's office and the General Assembly.

Especially in criminal justice context—Ev proves that the judiciary can ‘enact
reforms,’ not just legislatures
Ghiardi 88 – Professor of Law at Marquette
James D. Ghiardi, Professor of Law, Marquette University Law School, Punitive Damage Awards: An
Expanded Judicial Role, 72 Marq. L. Rev. 33 (1988),
https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1750&context=mulr

AN EXPANDED JUDICIAL ROLE

The reforms enacted by the courts and the legislatures will help to produce more equitable and
uniform awards, but a more basic reform is required. Allowing the judiciary to exercise complete control
over the size of punitive damage awards would work to achieve the dual purpose of punitive damages,
and reduce the potential for abuse. Since punitive damages have essentially the same purpose as
criminal sanctions - punishment and deterrence - it would be reasonable to allow the judge in a post-trial
hearing to set the amount of punitive damages. The judge could, after liability for punitives has been
determined by the jury, consider any and all of the factors necessary to tailor an appropriate punishment
for a particular defendant in a controlled environment where the parties could introduce any relevant
information applicable to the amount of damages to be awarded. Kansas has taken a step in this
direction, but the factors to be considered by the court are still too limited.96
This approach would allow a judge, who has at his disposal greater experience and knowledge in
determining a reasonable amount of money adequate to punish and deter, to make the original
assessment of the amount of the award, instead of having to remit it. This approach would also prevent
the introduction of potentially prejudicial evidence such as the amount and number of other punitive
verdicts, and the wealth of the defendant from influencing the issue of liability. In addition, it would
eliminate the wasteful costs of a new trial, and also the problem faced by defendants defending against
liability in the first instance, while also having to introduce evidence as to his or her wealth and profitability
at the same time.
Legislation that would give the trial court alone the power to determine the amount of a punitive damage
award after the jury has determined that the defendant's conduct merits such an award is an idea whose
time has come.97 The issue is one of legislative and judicial policy . A jury finding of the amount of a
punitive award is not one of "constitutional dimensions."'g Shifting the initial responsibility for the amount
of punitive damages to the trial court, subject to review by the appellate court as to any abuse of
discretion, would make the awards more reflective of their dual purpose - punishment and deterrence.

Err AFF, because “judicial reform of the criminal justice system” specifically is a
thing
Blanco 12 – Associate Professor of Public Policy at Pepperdine
Luisa Blanco, Associate Professor of Public Policy at Pepperdine School of Public Policy, scholar at
UCLA Resource Center for Minority Aging Research-Center for Health Improvement of Minority Elderly
(RCMAR-CHIME), a Visiting Senior Scholar at the Minneapolis Federal Reserve Bank (2017-2018), an
Adjunct Researcher at RAND Corporation, and a Research Fellow at Harris Manchester College at
Oxford, The Impact of Reform on the Criminal Justice System in Mexico, 2012,
https://www.rand.org/content/dam/rand/pubs/working_papers/2012/RAND_WR948.pdf

Judicial reform should lead to a more transparent and efficient criminal justice system in Mexico,
which in turn should result in greater trust and satisfaction with criminal justice institutions (e.g., police,
prosecutors, and judges). By leading to greater confidence in criminal justice institutions, judicial reform
should also help prevent and deter crime. Yet the literature on the impact of judicial reform is scant, and
there are contradictory arguments about its effects on crime.
 AT: Bivens Net Benefit
The Court will keep doing what they wanna do – CP doesn’t fiat its application
elsewhere, otherwise we could perm it. And this Court hates Bivens, squo proves.
Precedent won’t change that –
McGuire 5 – Associate professor of Political Science at UNC
Kevin McGuire, associate professor of Political Science at UNC, and Michael MacKuen, professor of
Political Science at UNC, ‘5, “Precedent and Preferences on the U.S. Supreme Court,”
http://www.unc.edu/~kmcguire/papers/precedent.pdf

An alternative approach examines the alteration of precedent, analyzing when and why the Supreme
Court overturns its past policies. If stare decisis genuinely constrained the members of the Court, then
they should be unwilling to reconsider precedents, even those with which they may personally disagree. It
turns out, however, that precedents are quite vulnerable, especially those that conflict with the policy
dispositions of the justices (see, e.g., Brenner and Spaeth 1995; Segal and Howard 2000). Again, the
evidence supports the attitudinal, rather than the legal model . No doubt the best evidence on the
importance of stare decisis measures the degree to which justices who oppose a newly established
precedent modify their behavior by accepting the authority of that precedent in subsequent cases (Spaeth
and Segal 1999). In landmark decisions (i.e., cases for which there are no genuine precedents), the
members of the Court are not bound by the dictates of stare decisis and are free to follow their
preferences. If the justices were truly affected by precedent, then they would adjust accordingly,
supporting the application of that new precedent in later litigation. By this standard, precedent does not
exert much influence; it turns out that, across the Court’s entire history, the justices have rarely modified
their behavior after the Court adopts new policies with which they disagree. This is quite powerful; it
convincingly demonstrates that individual justices see little need to support the decisions of their brethren,
even when there are strong legal reasons for doing so. Given the choice between a disagreeable principle
and their own attitudinal inclinations, most members of the Court simply stand by their preferences.

But even if, no spillover – CP is just another ad hoc development

Bernstein ‘12
Anya Bigelow Teaching Fellow and Lecturer in Law, The University of Chicago Law School. J.D., Yale
Law School; Ph.D., The University of Chicago; B.A., Columbia University, “CONGRESSIONAL WILL AND
THE ROLE OF THE EXECUTIVE IN BIVENS ACTIONS: WHAT IS SPECIAL ABOUT SPECIAL
FACTORS ,” INDIANA LAW REVIEW Vol. 45:719 2012

Say a government actor violates a person’s constitutional right. In an odd federalist twist, what recourse the person has depends on
which government level the violator acted for. If the government actor was cloaked in the mantle of state authority, the victim can
sue under the Civil Rights Act of 1871. If, in contrast, 1 the violator acted on behalf of the federal government, the
victim has no explicit statutory cause of action. She may, however, be able to sue the government actor directly under
the U.S. Constitution on the theory articulated in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. Both §
1983 and 2 Bivens impose monetary liability on errant government agents who violate individuals’
constitutional rights. But, as a judge-made remedy, Bivens has been subject both to skeptical scrutiny by
commentators and to somewhat ad hoc 4 development by the Supreme Court, which has allowed a
case-by-case determination of whether “special factors” preclude constitutional damages .5
 2AC AT: Democ

Major alt causes like Trump, COVID, economic crisis, and global backsliding –
Either resilient or CP can’t solve
Diamond 20 – senior fellow at the Hoover Institution
Larry Diamond is a senior fellow at the Hoover Institution and at the Freeman Spogli Institute at Stanford
University, America’s COVID-19 Disaster Is a Setback for Democracy, April 2020,
https://www.theatlantic.com/ideas/archive/2020/04/americas-covid-19-disaster-setback-
democracy/610102/

If the country’s institutions cannot function effectively during a crisis, and especially if a view takes hold
that authoritarian regimes are managing the crisis more decisively, a grim future lies ahead .
In December 1940—a year before the attack on Pearl Harbor, but well into Britain’s struggle for survival
against the Nazis—President Franklin D. Roosevelt called for the United States to abandon isolationism
and become “the arsenal of democracy.” To make that happen, he mobilized American industry and
produced the planes, ships, guns, and ammunition needed to defeat fascism.
With COVID-19, America faces a new existential enemy, and the country must again summon its
industrial might and its scientific and engineering prowess to fight it. This is not an imperative only for the
American people. Once the country has met its own overwhelming needs, the world is going to require
America’s medicines, science, and supplies on a massive scale. If, when this pandemic finally abates, the
dominant global narrative becomes “ It was China’s authoritarian system that helped us, while the
democracies of the West floundered and selfishly turned in on themselves,” humanity will emerge from
this devastating crisis into a radically different and more dangerous world , one deeply hostile to
freedom and self-government.
Tim Horley, Anne Meng, and Mila Versteeg: The world is experiencing a new form of autocracy
Pandemics fan the instinct for closure and walling off. The U.S. can shut its borders temporarily, but there
is no returning to “fortress America.” The country’s interests—and its values—are all too global.
Donald Trump’s cavalier downplaying of intelligence reports warning of a worldwide outbreak in early
January—and the subsequent 70 days of what The Washington Post termed “denial and dysfunction”
across his administration—squandered precious weeks when the U.S. could have taken concerted steps
to prepare for and contain the coming crisis. His continued pattern of deceit and deception about the
nature and scope of the public-health disaster further cost the country a “golden hour” that could have
been used to begin mass production and distribution of tests and equipment, and to educate the public
about the gravity of the coming pandemic and the urgent need for social distancing. A different
presidential posture early on could have saved many American lives.
It didn’t have to be this way. The narrative that China is trying to promote after its rapid recovery from the
virus—that its semi-totalitarian control of people and information is the only way to manage a pandemic
like this—is wrong on two counts. First, China’s authoritarian instinct to suppress bad news enabled the
virus to explode in Wuhan in December, when it might have been contained by the free flow of
information and a rapid emergency response. Second, democratic societies in Asia—South Korea and
especially Taiwan (along with a more transparent non-democracy, Singapore)—have been able to contain
the virus without China’s draconian, communist-style measures. As Rachel Kleinfeld of the Carnegie
Endowment for International Peace has argued, they’ve done so by learning the lessons of the SARS
epidemic and using strong health systems and reservoirs of public legitimacy and trust to test quickly and
widely and track infected individuals.
Crises always test self-government. Unlike authoritarian regimes—which can use force, fear, and fraud to
control their populations—democracies rely on open information and the consent of the governed. Unlike
China, democracies cannot cover up their failures for very long. If citizens lose faith in the legitimacy of
democracy as the best form of government—if their institutions cannot function effectively during a crisis,
and especially if a view takes hold that authoritarian regimes are managing the crisis more “decisively”—
many democracies will be at grave risk of failure .
Unfortunately, the COVID-19 pandemic is unfolding at a time when democracy—at home and abroad —
is already in distress . For more than a decade , freedom and democracy have been in recession , and
more countries have lost than gained political rights and civil liberties in each of the past 14 years . In
the past decade , the rate of democratic breakdown has been accelerating , and nearly a fifth of all
democracies are failing (nearly double the proportion of democracies that died in each of the
preceding two decades ). As the advanced, postindustrial democracies have become preoccupied with
their own problems and divisions ; as their prestige has waned (particularly that of the U.S.)
following the 2003 invasion of Iraq and then the 2008 financial crisis ; and as Russia and
especially China have expanded their global propaganda operations, power projection, and self-
confidence , democracy has been placed on the defensive.
The world is still in the early days of the pandemic, and by the end, some countries may be making
foundational changes to their systems of government . Even wealthy states with relatively strong
administrative and public-health capacities, such as Italy and the U.S., find their medical systems under
strain. Imagine what will happen when the coronavirus spreads mostly unchecked in countries that lack
the public-health and economic resources of wealthier countries. Health systems are likely to become
overwhelmed much more quickly. Poor urban neighborhoods—where people live crowded together, with
little access to sanitation, health care, or public safety, and many with weakened immune systems—could
become intensive breeding grounds for the virus. Without smart and generous policy responses by donor
countries “that can successfully navigate the complex health and security realities,” the death tolls in the
world’s poorer nations could run into the millions. To preempt that, Indian Prime Minister Narendra Modi
in late March took the most dramatic step of any nation to try to stop the spread of the virus: a three-week
stay-at-home order for all 1.3 billion citizens.
The political effects of this crisis are likely to be profound . In the medium to long run , the
economic distress , piled atop the death toll, could destabilize and even topple many governments .
That could wreak havoc on fragile democracies —or renew the case for transparency and good
governance, which are hallmarks of liberal democracy. In the near term , the pandemic, with its need
for rapid and strong government action , “provides a particularly convincing cover under which
autocrats can pursue their agendas .” This cover is rapidly being exploited by autocrats around the
world, from Russia to Turkey to Venezuela to Egypt ; by pseudo-democrats eager to establish full
dictatorship , such as Viktor Orbán of Hungary ; and by democratically elected rulers—from the
Philippines to India to Poland — intent on silencing free expression . Governments are ramping up
information control and digital surveillance of citizens while, in the words of the Human Rights Watch
president, Kenneth Roth, “ detaining journalists, opposition activists, healthcare workers, and anyone
else who dares to criticize the official response to the coronavirus.”
The siren song of strongman rule will be harder to resist if authoritarian regimes appear to be
managing the virus more successfully. Democracies must show that they can govern effectively to meet
the pressing public-health and economic dimensions of the crisis. Above all, this requires urgent steps to
stop the spread of the virus through rigorous social distancing and widespread testing; to shore up the
capacity of health systems to treat the sick (through the requisition and manufacturing of personal
protective equipment, ventilators, and other crucial medical supplies); to construct new temporary hospital
facilities when necessary; and to expedite the testing and development of potential treatments and,
ultimately, a vaccine. The U.S. and its democratic partners must also act expeditiously to distribute
financial relief to businesses and workers to prevent the deep and unavoidable economic recession
from becoming a depression.
This leads to a political imperative, which, if not met, could strain and even rupture American
democracy . If the COVID-19 contagion persists through or resurges in the fall, the possibilities for a free
and fair election on November 3 could be jeopardized . This does not need to happen. The U.S. has
half a year to avoid a repeat of the horrible spectacle of the Wisconsin primary last week, when
voters, unable to vote by mail, were forced to risk infection by waiting in lines, without proper distancing,
to vote at crowded polling stations that had been reduced in number by more than 90 percent . People
should be excused from the obligation of going out on Election Day to a polling place where they may
face long lines, shared surfaces on which the virus may diffuse, and inadequate numbers of poll workers.
Every American who wants to do so should be able to freely vote by mail, or to receive in the mail a ballot
that they can drop off at a polling or counting center. If social distancing is the immediate public-health
directive for limiting the spread of the virus, distant voting is the clear electoral parallel. Many states
require financial and technical assistance (totaling up to $3 billion nationally) to make this option available
to all voters, and Congress must appropriate the funds soon.
This shouldn’t be a partisan issue. Older voters, non-urban voters, and red-state voters are no less
anxious to be able to cast a vote that does not put their health at risk. In fact, because of the nature of the
virus, older voters are more at risk if they go to the polls. Moreover, a solidly Republican state, Utah, will
join Hawaii this year to become the fifth state in the country to vote entirely by mail. The switch caps a
years-long process in which voter turnout dramatically increased along with voter satisfaction as Utah
counties, one by one, adopted voting by mail.
Nothing the U.S. could do to shore up the global fate of democracy would have a greater impact
than the effective management of its own epidemic, economic crisis, and election . But the country
must not allow its domestic trials to blind it to the need for international action and vigilance in the face of
authoritarian ambition and disinformation.
The best hope for controlling and reversing the pandemic lies in deep, multifaceted cooperation among
countries, sharing information, supplies, and research that can lead to medical treatments and a vaccine
for the virus. That is why, even with all its flaws, America—as much as the rest of the world—needs an
effective World Health Organization. President Trump’s efforts to suspend U.S. payments to the
organization is shortsighted and self-defeating. Additionally, independent media and civil-society
organizations around the globe need the financial support of Western democracies to ensure the free flow
of information and the self-organization of society, to counter both the pandemic and the tendency of
rulers to use the pandemic to aggrandize their power and eclipse civil liberties.
American diplomacy, solidarity, and assistance can make a difference in saving many lives while
preventing the full-scale retreat of freedom. But if that’s not what happens, if America stands back and
watches from the sidelines while governments and societies unravel , the coronavirus and its likely
mutations will kill many more. And eventually, when the pandemic does subside, the world will be much
more unstable , unsafe, and badly governed , a breeding ground for Islamist and other radical
movements, for resentment of the West , and for a new world order with China at its center .
 1AR – No Democ
Structural changes necessary but won’t happen
Lozada 19 – WaPo critic reviewing recent books on democracy by Prof. Diamond and Prof.
Fredrickson
Carlos Lozada, nonfiction book critic of The Washington Post, won the Pulitzer Prize for criticism in 2019
and was a finalist for the award in 2018, Previously he was the Post’s Outlook editor and has overseen
news coverage of economics and national security, Democracy is under attack. But how to protect it while
Trump is in the White House?, 2019, https://www.washingtonpost.com/outlook/2019/08/01/democracy-is-
under-attack-how-protect-it-while-trump-is-white-house/

Political reforms, electoral design, campaign-financing legislation — these may not have the visceral
appeal of debates over gun rights or taxation or the environment, but they are just as critical, even more
so if we consider that a functional democracy is needed to tackle all our other challenges. “If we cannot
summon the courage to defend our founding values,” Diamond warns, “the light of the American
experiment may dim, flicker, and go out.”
Trump’s eventual departure may indeed be necessary before reform is possible, as Diamond suggests.
But citizens concerned about democracy have already been waiting — be it for Trump to self-destruct,
Congress to impeach, Republicans to stand up, the base to shake loose, the opposition to coalesce, or
Mueller to save the day. (Reminder: None of that has happened.) And a strategy that laments yet hopes
to mimic the undemocratic instincts of one side to uphold the political preferences of another feels
shortsighted.
 1AR – AT: Solves War
No statistical ev that democracy causes peace
Mousseau ’18 – PhD, Professor of International Relations Theory, Political Economy of War and
Peace at University of Central Florida
Michael. “Grasping the scientific evidence: The contractualist peace supersedes the democratic peace”
Conflict Management and Peace Science, Vol 35.2. 175-192.
https://journals.sagepub.com/doi/pdf/10.1177/0738894215616408

there is no credible evidence supporting democracy as a cause of

The results are consistent across all tests:
peace . Using DOR’s base model, the impact of democracy is zero regardless of how contractualist economy
or interstate conflict is measured. There is no misinterpreted interaction term in any study that has
overturned the democratic peace, and the disaggregation of the data yields no support for a causal
interaction of democracy with contractualist economy. Ray’s (2013) evidence for reverse causality from democracy
to contractualist economy is shown to be based on an erroneous research design. And of DOR’s 120 separate
regressions that consider contractualist economy, 116 contain controversial measurement and specification practices; the remaining
four are analyses of all (fatal and non-fatal) disputes, where the correlation of democracy with peace is limited to mixedeconomic
dyads, those where one state has a contractualist economy and the other does not, a subset that includes only 27% of dyads from
1951 to 2001, including only 50% of democratic dyads. It is further shown that this marginal peace is a statistical artifact
since it does not exist among neighbors where everyone has an equal opportunity to fight.
The results of this study should not be surprising, as they merely corroborate the present state of knowledge . This is
because, while DOR ardently assert that four alleged errors, when corrected, each independently save the democratic peace
proposition—multiple imputation, the exclusion of ongoing dispute years, an interaction term, and their alternative measure for
contractualist economy— they never actually report any clear-cut evidence in support of their claims. One
issue not addressed is Dafoe and Russett’s (2013) challenge to Mousseau et al. (2013a) on the grounds that our reported
insignificance of democracy is not significant. Like the four claims of error made by DOR addressed here, Dafoe and
Russett (2013) made this charge without supporting it. Mousseau et al. (2013b) then investigated it and showed that it too has no
support. This issue appears resolved, as Russett and colleagues (DOR) did not raise it again. Nor have DOR or anyone else
disputed the overturning of the democratic peace as reported in Mousseau (2012a), which has not been contested with any
assertion, supported or unsupported.
The implications of this study are far from trivial: the observation of democratic peace is a statistical
artifact , seemingly explained by economic conditions. If scientific knowledge progresses and the field of interstate
conflict processes is to abide by the scientific rules of evidence, then we must stop describing democracy as a ‘‘known’’
cause or correlate of peace, and stop tossing in a variable for democracy, willy-nilly, in quantitative
analyses of international conflict; the variable to replace it is contractualist economy . If nations want to
advance peace abroad, the promotion of democracy will not achieve it : the policy to replace it is the
promotion of economic opportunity.
The economic norms account for how contractualist economy can cause both democracy and peace has been explicated in
numerous prior studies and need not be repeated here (Mousseau, 2000, 2009, 2012a, 2013). An abundance of prior
studies have also corroborated various novel predictions of the theory in wider domains (Ungerer, 2012), and
no one has disputed the multiple reports that contractualist economy is the strongest non-trivial predictor of peace both within
(Mousseau, 2012b) and between nations (Mousseau, 2013; see also Nieman, 2015). The only matter in controversy is
whether democracy has any observable impact on peace between nations after consideration of
contractualist economy. My investigation begins below with the allegation of measurement error.
 2AC AT: Model
No one models American courts – Canada is the model
Law, Professor of Law and Professor of Political Science, Washington University in St. Louis, and
Versteeg, Associate Professor, University of Virginia School of Law, June 2012
(David S. and Mila, “THE DECLINING INFLUENCE OF THE UNITED STATES CONSTITUTION,” 87
N.Y.U.L. Rev. 762, Lexis)
In 1987, to mark the bicentennial of the U.S. Constitution, Time magazine released a special issue in
which it called the Constitution "a gift to all nations" and proclaimed proudly that 160 of the 170 nations
then in existence had modeled their constitutions upon our own. n2 As boastful as the claim may be, the
editors of Time were not entirely without reason. Over its two centuries of history, the U.S. Constitution
has had an immense impact on the development of constitutionalism around the world. n3 Constitutional
law has been called [*765] one of the "great exports" of the United States. n4 In a number of countries,
constitutional drafters have copied extensively, and at times verbatim, from the text of the U.S.
Constitution. n5 Countless more foreign constitutions have been characterized as this country's
"constitutional offspring." n6
It is widely assumed among scholars and the general public alike that the United States remains "the
hegemonic model" for constitutionalism in other countries. n7 The U.S. Constitution in particular continues
to be described as "the essential prototype of a written, single-document constitution." n8 There can be
no denying the popularity of [*766] the Constitution's most important innovations, such as judicial review,
entrenchment against legislative change, and the very idea of written constitutionalism. n9 Today, almost
90% of all countries possess written constitutional documents backed by some kind of judicial
enforcement. n10 As a result, what Alexis de Tocqueville once described as an American peculiarity is
now a basic feature of almost every state. n11
There are growing suspicions, however, that America's days as a constitutional hegemon are coming to
an end. n12 It has been said that [*767] the United States is losing constitutional influence because it is
increasingly out of sync with an evolving global consensus on issues of human rights. n13 Indeed, to the
extent that other countries still look to the U nited States as an example, their goal may be less to imitate
American constitutionalism than to avoid its perceived flaws and mistakes. n14 Scholarly and popular
attention has focused in particular upon the influence of American constitutional jurisprudence. The
reluctance of the U.S. Supreme Court to pay "decent respect to the opinions of mankind" n15 by
participating in an ongoing "global judicial dialogue" n16 is supposedly diminishing the global appeal and
influence of American constitutional jurisprudence. n17 Studies conducted by [*768] scholars in other
countries have begun to yield empirical evidence that citation to U.S. Supreme Court decisions by
foreign courts is in fact on the decline. n18 By contrast, however, the extent to which the U.S.
Constitution itself continues to influence the adoption and revision of constitutions in other countries
remains a matter of speculation and anecdotal impression.
With the help of an extensive data set of our own creation that spans all national constitutions over
the last six decades, this Article explores the extent to which various prominent constitutions - including
the U.S. Constitution - epitomize generic rights constitutionalism or are, instead, increasingly out of sync
with evolving global practice. A stark contrast can be drawn between the declining attraction of the
U.S. Constitution as a model for other countries and the increasing attraction of the model
provided by America's neighbor to the north, Canada. We also address the possibility that today's
constitution makers look for inspiration not only to other national constitutions, but also to regional and
international human rights instruments such as the U niversal Declaration of Human R ights and the
E uropean C onvention on Human R ights. Our findings do little to assuage American fears of diminished
influence in the constitutional sphere.
Part I introduces the data and methods used in this Article to quantify constitutional content and measure
constitutional similarity. Part II describes the global mainstream of rights constitutionalism, in the form of a
set of rights that can be found in the vast majority of the [*769] world's constitutions. From this core set
of rights, we construct a hypothetical generic bill of rights that exemplifies current trends in rights
constitutionalism. We then identify the most and least generic constitutions in the world, measured by
their similarity to this generic bill of rights, and we pinpoint the ways in which the rights-related provisions
of the U.S. Constitution depart from this generic model.
Part III documents the growing divergence of the U.S. Constitution from the global mainstream of written
constitutionalism. Whether the analysis is global in scope or focuses more specifically upon countries that
share historical, legal, political, or geographic ties to the U nited S tates, the conclusion remains the same:
The U.S. Constitution has become an increasingly unpopular model for constitutional framers
elsewhere. Possible explanations include the sheer brevity of the Constitution, its imperviousness to
formal amendment, its omission of some of the world's generic constitutional rights, and its inclusion of
certain rights that are increasingly rare by global standards.
Parts IV and V tackle the question of whether a prominent constitution from some other country has
supplanted the U.S. Constitution as a model for global constitutionalism. Part IV contrasts the growing
deviance of the U.S. Constitution from global constitutional practice with the increasing popularity of the
Canadian approach to rights constitutionalism. Unlike its American counterpart, the Canadian Constitution
has remained squarely within the constitutional mainstream. Indeed, when Canada departed from the
mainstream by adopting a new constitution, other countries followed its lead. Closer examination
reveals, however, that the popularity of the Canadian model is largely confined to countries with an Anglo-
American legal tradition. In other words, our analysis suggests that Canada is in the vanguard of what
might be called a Commonwealth model of rights constitutionalism, but not necessarily of global
constitutionalism as a whole.
Part V considers whether the widely celebrated constitutions of Germany, South Africa, or India might
instead be leading the way for global constitutionalism. Although all three are currently more
mainstream than the U.S. Constitution, we find little evidence that global constitution-writing practices
have been strongly shaped by any of the three.
Part VI explores the possibility that transnational human rights instruments have begun to shape the
practice of formal constitutionalism at the national level. The evidence that international and regional
human rights treaties may be serving as models for domestic constitutions varies significantly from treaty
to treaty. In particular, [*770] we find that the average constitution has increasingly grown to resemble
the International Covenant on Civil and Political Rights and the European Convention on Human Rights,
as well as the African Charter on Human and Peoples' Rights and the Charter of Civil Society for the
Caribbean Community. There is little evidence, however, that any of these treaties is actually responsible
for generating global consensus as to what rights demand formal constitutional protection. Although these
treaties may express and reinforce preexisting global constitutional trends, they do not appear to define
those trends in the first place.
Finally, the Conclusion discusses possible explanations for the declining influence of American
constitutionalism. These include a broad decline in American hegemony across a range of spheres,
a judicial aversion to constitutional comparativism, a historical and normative commitment to
American exceptionalism, and sheer constitutional obsolescence.
 1AR – No Model
Specifically, no modeling of judicial review
Law, Professor of Law and Professor of Political Science, Washington University in St. Louis, and
Versteeg, Associate Professor, University of Virginia School of Law, June 2012
(David S. and Mila, “THE DECLINING INFLUENCE OF THE UNITED STATES CONSTITUTION,” 87
N.Y.U.L. Rev. 762, Lexis)
Our analysis thus far offers strong evidence that the U.S. Constitution is losing popularity as a model for
constitution makers, at least as far as the enumeration of rights is concerned. But what of the structural
and institutional innovations for which the U.S. Constitution is also renowned? There are three features of
what has come to be known as the "structural constitution" n50 that are closely associated with American
constitutionalism: federalism, n51 presidentialism, n52 and judicial review. n53 Is it merely the rights
guarantees found in the U.S. Constitution that fail to inspire today's constitution makers, or is the global
popularity of the structural constitution also in decline? The answer appears to be that the most distinctive
and celebrated structural features of the U.S. Constitution have also fallen out of vogue.
1. Federalism
Federalism held considerable appeal to constitution makers in the early nineteenth century, and nowhere
more so than in Latin America, where it was embraced by Argentina, Brazil, Chile, Uruguay, Venezuela,
and Mexico, among others. n54 Even at the peak of its popularity in the early twentieth century, however,
only 22% of [*786] the world's nations employed some form of federalism. n55 Since that time,
federalism has diminished in popularity. n56 Following a significant decline in the inter-war period, the
proportion of countries with a federal system recovered somewhat to about 18% in the immediate
aftermath of World War II but has since stabilized at a mere 12%. These developments are depicted in
Figure 7, which graphs the proportion of countries with a federal system over the last two centuries. n57
[*787] Figure 3. Similarity to the U.S. Constitution in 1946 [*788] Figure 4. Similarity to the U.S.
Constitution in 1966 [*789] Figure 5. Similarity to the U.S. Constitution in 1986 [*790] Figure 6.
Similarity to the U.S. Constitution in 2006 [*791] Figure 7. Percentage of Countries with Federal Systems
2. Presidentialism
A similar fate has befallen another famous American constitutional innovation, that of presidentialism. Like
federalism, presidentialism enjoyed early popularity in Latin America. n58 Many of these early Latin
American experiments with presidentialism degenerated into dictatorial rule, n59 however, and these
failures helped to give presidentialism itself a bad name n60 and to discourage other nations from
adopting similar systems. n61 Figure 8 depicts the prevalence of presidential, semi-presidential (or
mixed), and parliamentary systems [*792] among the world's democracies over the last six decades. n62
In absolute terms, the parliamentary model has consistently been the most popular of the three and is at
present the choice of roughly half of the world's democracies. By contrast, although presidentialism has
enjoyed a slight resurgence since its nadir in the 1970s, it remains less widespread now than it was in the
immediate aftermath of World War II. What has gained popularity over time, mainly at the expense of
parliamentarism, is the mixed or semi-presidential model, which was widely adopted among the former
Soviet bloc countries that emerged from communism in the 1990s. n63
[*793]
Figure 8. Popularity of Presidential, Parliamentary, and Mixed Systems
3. Judicial Review
It is perhaps ironic that the most popular innovation of American constitutionalism has been judicial
review, n64 given that this celebrated institution is nowhere mentioned in the U.S. Constitution itself.
Today, the majority of the world's constitutions mandate judicial review in some form, as shown in Figure
9. n65 In 1946, only 25% of all constitutions explicitly provided for judicial review; by 2006, that proportion
had increased to 82%.
[*794]
Figure 9. Percentage of Constitutions That Provided Explicity for Judicial Review
The particular form of judicial review that has proven most popular, however, is not the form that
was pioneered by the U nited States. n66 Under the American model, the power of judicial review is
vested in courts of general jurisdiction, which rule upon the constitutionality of government action as the
need arises in the course of ordinary litigation. n67 Under the European model, by contrast, the power to
decide constitutional questions is exercised exclusively by a specialized constitutional court that stands
apart from the regular [*795] judiciary. n68 The prototypical examples of this model are the constitutional
courts that Hans Kelsen devised for Austria. n69 A further distinction is routinely drawn between concrete
review, which characterizes the American model, and abstract review, which typifies the European model.
In a system of concrete review, courts decide constitutional questions in the course of ordinary litigation,
as part of what Americans would call a case or controversy, n70 whereas in a system of abstract review,
the constitutionality of a law can be decided in the absence of a concrete, adversarial dispute and,
indeed, before the law has even gone into effect. n71
Over the last six decades, a growing proportion of constitutions have adopted the European model
of abstract review by specialized courts, as opposed to the American model of concrete review by
[*796] ordinary courts. At the close of World War II, the American model enjoyed a commanding lead
over the European model as the choice of over 80% of constitution makers, but its popularity began to
erode in the 1970s . By the mid-1990s, the European model had overtaken the American model as the
choice of over half the world's constitutions. Figure 10 illustrates these global trends. The creation of
specialized constitutional courts of the European variety has proven especially popular among newly
democratic states, where distrust of existing judicial institutions associated with the old regime is often
widespread. n72 Thus, although the U.S. Constitution may have pioneered the idea of binding
judicial enforcement of individual rights - an idea that now enjoys nearly universal acceptance - it is no
longer the leading source of inspiration for how such enforcement is to be institutionalized.
America's long and successful experience with judicial review may be responsible for encouraging other
countries to adopt the practice, but the form of judicial review that other countries actually choose to adopt
has a more European than American flavor.

Nor constitutionalism
Law, Professor of Law and Professor of Political Science, Washington University in St. Louis, and
Versteeg, Associate Professor, University of Virginia School of Law, June 2012
(David S. and Mila, “THE DECLINING INFLUENCE OF THE UNITED STATES CONSTITUTION,” 87
N.Y.U.L. Rev. 762, Lexis)
In this Article, we show empirically that other countries have, in recent decades, become increasingly
unlikely to model either the rights-related provisions or the basic structural provisions of their own
constitutions upon those found in the U.S. Constitution. Analysis of sixty years of comprehensive data on
the content of the world's constitutions reveals that there is a significant and growing generic component
to global constitutionalism, in the form of a set of rights provisions that appear in nearly all formal
constitutions. On the basis of this data, we are able to identify the world's most and least generic
constitutions. Our analysis also confirms, however, that the U.S. Constitution is increasingly far from the
global mainstream.
The fact that the U.S. Constitution is not widely emulated raises the question of whether there is
an alternative paradigm that constitutional drafters in other countries now employ as a model
instead. One possibility is that their attention has shifted to some other prominent national constitution.
To evaluate this possibility, we analyze the content of the world's constitutions for telltale patterns of
similarity to the constitutions of Canada, Germany, South Africa, and India, which have often been
identified as especially influential. We find some support in the data for the notion that the Canadian
Charter of Rights and Freedoms has influenced constitution making in other countries. This
influence is neither uniform nor global in scope, however, but instead reflects an evolutionary path shared
primarily by other common law countries. By comparison, we uncover no patterns that would suggest
widespread constitutional emulation of Germany, South Africa, or India.

And, US refusal to cite them makes it worse

Law, Professor of Law and Professor of Political Science, Washington University in St. Louis, and
Versteeg, Associate Professor, University of Virginia School of Law, June 2012
(David S. and Mila, “THE DECLINING INFLUENCE OF THE UNITED STATES CONSTITUTION,” 87
N.Y.U.L. Rev. 762, Lexis)
There are also factors specific to American constitutionalism that may be reducing its appeal to foreign
audiences. Critics suggest that the Supreme Court has undermined the global appeal of its own
jurisprudence by failing to acknowledge the relevant intellectual contributions of foreign courts on
questions of common concern n252 and by pursuing interpretive approaches that lack acceptance
elsewhere. n253 On this view, the Court may bear some responsibility for the declining influence of not
only its own jurisprudence, but also the actual U.S. Constitution: One might argue that the Court's
approach to constitutional issues has undermined the appeal of American constitutionalism more
generally, to the point that other countries have become unwilling to look either to American constitutional
jurisprudence or to the U.S. Constitution itself for inspiration. n254
 2AC AT: Rule of Law
Can’t solve rule of law
Applebaum 19
Anne Applebaum, Columnist-WaPo, Americans spent decades discussing rule of law. Why would anyone
believe us now?, 2019, https://www.washingtonpost.com/opinions/global-opinions/americans-spent-
decades-discussing-rule-of-law-why-would-anyone-believe-us-now/2019/09/27/a02d9c36-e142-11e9-
8dc8-498eabc129a0_story.html

In the nearly 30 years that have elapsed since the collapse of the Soviet Union in 1991, I doubt whether a
single day has gone by without some Western diplomat, somewhere in the post-Soviet space, talking
about the need for the rule of law. The U.S.S.R. was a totalitarian state in which judges and prosecutors
were controlled by the ruling party. The result was injustice, oppression and corruption. Since the former
Soviet republics gained independence, Europeans and Americans, presidents and prime ministers,
International Monetary Fund envoys and advisers of all kinds have sought to persuade the nations of the
region to follow a different path and to adopt, instead, an independent judiciary and apolitical prosecutors.
By doing so, they hoped to promote democracy, prosperity and justice in a region that has known
precious little of all three.
During those nearly 30 years, this argument for judicial independence has been completely bipartisan and
multinational. It has been made by Democrats and Republicans, Christian Democrats and Social
Democrats, Americans and Germans, think tanks and foundations and “anti-kleptocracy” initiatives. The
Obama administration considered it to be so important that it sent Joe Biden, the vice president, to make
this argument repeatedly in Ukraine.
Some in the region have pushed back. Previous Ukrainian governments sought to retain influence over
prosecutors and judges to politicize justice, protect their friends and attack their enemies. The current
Polish ruling party has sought to re-politicize the courts to corrupt justice and shield its members from the
law. The Russian government has, of course, long ago laughed the whole thing away. Indeed, the current
Russian leadership simply shrugs, metaphorically, when told its courts are politically biased or its
politicians are corrupt: We might be bad, they say in effect, but you aren’t any better.
And now, after nearly 30 years of Western and U.S. talk about justice and courts and democracy, after all
of that time and money invested in judicial training and rule-of-law seminars, now it turns out that the
critics , the cynics, the would-be authoritarians and the corrupt politicians who seek to use the
organs of justice to their own advantage — now it turns out that they are right . The United States is not
an example to be admired ; it is a rule-of-law catastrophe . Its elected president has spent months
trying to persuade his Ukrainian counterpart, Volodymyr Zelensky, to return to Soviet-style ways of
doing things, to bring back politicized justice and to put pressure on Ukrainian prosecutors to fabricate
evidence and pursue a fake “case,” in an effort to help his own reelection campaign.
Step away for the moment from the domestic implications of this story and think about what it means in
the rest of the world . It’s almost as though President Trump and his personal lawyer, Rudolph W.
Giuliani, had set out to undermine every U.S. and European program in the region, every diplomatic
and educational initiative , every single ideal that the United States has ever stood for in that part of the
world. In the five months since the election of Ukraine’s new president, Trump, Giuliani and possibly
others have continually harassed Zelensky — withheld promised military aid, refused to attend his
inauguration, nagged and bothered his aides — all in the name of corrupting and undermining
Ukrainian rule of law .
Zelensky, to his credit, has apparently held out. But after this incident, will any U.S. diplomat, ever
again , be able to ask with a straight face for any American ally, in the post-Soviet world or anyone
else , to crack down on corruption? Will any offers of judicial training or mentoring in the United States
be treated as anything but a joke? We have been arguing for the benefits of the rule of law for
decades, and once upon a time, at least some people listened. Why should they do so anymore?
Whatever becomes of Trump now , his presidency has definitely left a mark on history . He will be
remembered as the president who destroyed the United States’ reputation for good governance ,
who undermined U.S. policy in the post-Soviet world and beyond, whose narcissistic and conspiratorial
obsessions dominated his relationships with foreign leaders, even foreign leaders at war. This is the kind
of damage that can never be repaired.
 1AR – No Rule of Law
Even aside from Trump – Tons of alt causes, their author
Perito 19 – Senior Peace Fellow at PILPG, former Director of the Center for Security Sector
Governance at the USIP
Robert M. Perito, Senior Peace Fellow at the Public International Law and Policy Group and former
Director of the Center for Security Sector Governance at the U.S. Institute of Peace, and Donald J.
Planty, Senior Advisor to the Albright Stonebridge Group and former U.S. Foreign Service Officer and
U.S. Ambassador to Guatemala, Saving Democracy Abroad PRISM , Vol. 8, No. 2 (2019), pp. 68-81,
https://www-jstor-org.proxy.library.georgetown.edu/stable/pdf/26803231.pdf?refreqid=excelsior
%3A8dfbc1cc1b3a560a88e43179f83decec

Since the end of World War II, rule of law assistance has been a standard feature of U.S. development
aid abroad. In this century, the United States has spent billions of dollars in Iraq and Afghanistan to
promote the rule of law and hundreds of millions more in other crisis states. Yet these programs have
largely failed to support the maintenance of lawful democratic governments and in some cases have
contributed to their decline . There are both organizational and ideological reasons for the lack of
effectiveness of U.S. rule of law assistance . Interviews conducted with two dozen officials in the
State, Defense, and Justice departments and the U.S. Agency for International Development (USAID)
identified numerous shortcomings in the manner in which U.S. rule of law programs are funded ,
administered , and implemented .8 These failings help explain why U.S. programs are largely
ineffective abroad despite the expenditure of considerable effort and financial resources. First, U.S. rule
of law assistance lacks a common policy, doctrine, and strategy. There are no agreed upon goals and
objectives. There is no central administrative coordinating mechanism. Instead, agencies offer a collection
of projects that reflect the annual choices of Washington policymakers, embassy officers, and partner
governments. Second, there is no confirmed number for the total amount of money the United States
spends on rule of law assistance each year. Funding authorities are spread among a collection of
congressional committees and legislative funding sources. Money is allocated to the State and Defense
departments and USAID, which reallocate the money to implementing agencies. These agencies in turn
reallocate the money to nongovernmental organizations (NGOs) and commercial contractors. This
multilayered process defeats accurate accounting, results in high administrative costs, and delays
program implementation. Third, Washington agencies have a shortage of personnel with law enforcement
and judicial experience and regional, cultural, and linguistic expertise. Where experts are present, they
serve as advisors to generic program officers who are responsible for program selection, project design,
and funding allocation. In 2010, the Barack Obama Administration realigned priorities for rule of law
assistance at USAID by creating the Center of Excellence for Democracy, Human Rights, and
Governance (DRG).9 The center emphasized free and fair elections, political party development, human
rights, and labor and gender protection. The Rule of Law Office merged into a new Office of Governance
and Rule of Law, which supported activities to improve the accountability, transparency, and
responsiveness of governing institutions and to promote legal and regulatory frameworks aimed at
improving security and law enforcement. The motivation behind this change was in part ideological, but in
larger part it reflected a major reduction in available financial resources. This content downloaded from
141.161.91.14 on Wed, 08 Jul 2020 23:19:17 UTC All use subject to htt PRISM 8, NO. 2 FEATURES | 71
REVITALIZING U.S. RULE OF LAW ASSISTANCE During the Obama Administration, some 85 countries
received rule of law assistance. Total annual funding dropped from $1.417 billion in 2010 to $781 million
in 2014 to $683 million in 2015.10 Presidential initiatives took much of USAID’s budget. President Obama
continued George W. Bush’s President’s Emergency Plan for HIV/AIDS Relief and began his own
initiatives: the Feed the Future program, which sought to increase global agricultural production, and the
Global Development Lab, which encouraged the use of science, technology, and innovation to promote
development. In the field, larger USAID missions used discretionary funds to continue traditional rule of
law programming. Smaller missions were forced to choose between rule of law programs, which tended
to be expensive, and numerous smaller projects in other areas. The drop in funds limited staffing, often to
a single program officer responsible for managing all of USAID’s accounts.11 As a result of the
bureaucratic reorganization and reduction in funding, USAID effectively ceded responsibility for rule of law
programming to the Department of State.12 This led to the use of rule of law programing as a national
security tool rather than a development tool. U.S. assistance that militarized police and border guards
improved the ability of partner country security forces to conduct counternarcotics and counterterrorism
operations. For example, the U.S. Central American Regional Security Initiative provided $642 million in
weapons, equipment, and training to regional security forces to fight drug and arms trafficking, gangs, and
organized crime.13 Most of this assistance, however, failed to address the underlying fragility of rule of
law at the community level, where gangs and traffickers In March, 2007 Afghan National Police recruits
listen to instructors before firing their AK-47 rifles. Despite extensive training and equipping, at the time,
many have questioned whether the Afghan National Defense and Security Forces will be able to hold the
ground when U.S. forces departed. (U.S. Army/ Michael Bracken) This content downloaded from
141.161.91.14 on Wed, 08 Jul 2020 23:19:17 UTC All use subject to htt 72 | FEATURES PRISM 8, NO. 2
PERITO AND PLANTY thrived, or the culture of impunity that pervaded security and justice institutions. At
the same time, the State Department’s Bureau of Counterterrorism and Countering Violent Extremism
emerged as an important provider of rule of law assistance. The Bureau hired its first rule of law advisor
and began providing hundreds of millions of dollars in assistance to train rapid reaction police units,
foreign prosecutors to try terrorists’ cases, and prison staff to prevent radicalization and to rehabilitate
terrorist prisoners.14 The Obama Administration placed an interagency rule of law coordinator at the
State Department. This experiment failed because the coordinator was given limited authority, no project
funding, and no staff, and had little ability to influence rule of law policy and programs. An earlier effort by
the Bill Clinton administration to create a rule of law coordinator had failed for the same reasons.15 U.S.
programs continued to follow a state-centric, top-down, and technocratic approach aimed at transplanting
U.S.-style institutions into recipient states. The Justice and Security Assistance section of the 2018
interagency Framework for Maximizing the Effectiveness of USG Efforts to Stabilize Conflict Affected
Areas noted that U.S. “justice sector programming in conflict-affected areas often focused heavily on
promoting formal criminal justice institutions based on Western domestic experiences.”16 This reiterated
earlier criticism voiced by Carnegie Fellow Rachel Kleinfeld that the United States advocated top-down
reform of foreign government judicial institutions. U.S. programs trained lawyers and jurists in technical
skills and improving court administration. Programs for judges covered plea bargaining, alternative
sentencing, and international crimes such as money laundering. Kleinfeld pointed out that this approach
to legal reform resulted in institutional modeling where local laws and judicial institutions were modified to
more closely resemble those of the United States.17 Challenges for U.S. Rule of Law Assistance These
shortcomings are reflected in all U.S. rule of law assistance programs. However, they have been
particularly harmful in programs in corrupt authoritarian states , primarily in Central and Eastern
Europe, where populist authoritarian regimes have emerged and the United States is engaged because of
political, geostrategic, and humanitarian considerations. This has also been true in two other categories of
states where democracy and the rule of law are under attack: states in the northern tier of Central
America that are victims of extreme levels of criminal violence and the source of migrant flows toward our
southern border, and states in Central Asia, North Africa, and the Sahel where Islamist terrorists are
attempting to impose extreme versions of shariah law and U.S. military forces are training local security
forces.

The US empirically, structurally canno solve global rule of law, BUT there’s no
impact
Thomas Carothers is vice president for studies at the Carnegie Endowment for International Peace, 06
(“Promoting the Rule of Law Abroad: In Search of Knowledge,” Chapter 1,
http://carnegieendowment.org/2006/01/01/promoting-rule-of-law-abroad-in-search-of-knowledge/35vq)

The effects of this burgeoning rule-of-law aid are generally positive,¶ though usually modest. After more
than ten years and hundreds of millions¶ of dollars in aid, many judicial systems in Latin America still
function¶ poorly. Russia is probably the single largest recipient of such aid, ¶ but is not even clearly moving
in the right direction. The numerous ruleof-¶ law programs carried out in Cambodia after the 1993
elections failed¶ to create values or structures strong enough to prevent last year’s coup. ¶ Aid providers
have helped rewrite laws around the globe, but they have¶ discovered that the mere enactment of laws
accomplishes little without¶ considerable investment in changing the conditions for implementation¶ and
enforcement. Many Western advisers involved in rule-of-law assistance¶ are new to the foreign aid world
and have not learned that aid¶ must support domestically rooted processes of change, not attempt to ¶
artificially reproduce preselected results.¶ Efforts to strengthen basic legal institutions have proven slow
and difficult.¶ Training for judges, technical consultancies, and other transfers of expert knowledge make
sense on paper but often have only minor¶ impact. The desirability of embracing such values as efficiency,
transparency,¶ accountability, and honesty seems self-evident to Western aid ¶ providers, but for those
targeted by training programs, such changes¶ may signal the loss of perquisites and security. Major U.S.
judicial reform¶ efforts in Russia, El Salvador, Guatemala, and elsewhere have foundered ¶ on the
assumption that external aid can substitute for the internal ¶ will to reform.¶ Rule-of-law aid has been
concentrated on more easily attained type¶ one and type two reforms. Thus it has affected the most
important elements¶ of the problem least. Helping transitional countries achieve type¶ three reform that
brings real change in government obedience to law is¶ the hardest, slowest kind of assistance. It demands
powerful tools that¶ aid providers are only beginning to develop, especially activities that ¶ help bring
pressure on the legal system from the citizenry and support ¶ whatever pockets of reform may exist within
an otherwise selfinterested¶ ruling system. It requires a level of interventionism, political¶ attention, and
visibility that many donor governments and organizations ¶ cannot or do not wish to apply. Above all, it
calls for patient, sustained¶ attention, as breaking down entrenched political interests, transforming ¶
values, and generating enlightened, consistent leadership will ¶ take generations.¶ The experience to date
with rule-of-law aid suggests that it is best to¶ proceed with caution . The widespread embrace of the
rule-of-law imperative¶ is heartening, but it represents only the first step for most transitional¶ countries on
what will be a long and rocky road. Although the¶ United States and other Western countries can and
should foster the¶ rule of law, even large amounts of aid will not bring rapid or decisive ¶ results. Thus, it is
good that President Ernesto Zedillo of Mexico has¶ made rule-of-law development one of the central goals
of his presidency,¶ but the pursuit of that goal is certain to be slow and difficult, ¶ as highlighted by the
recent massacre in the south of the country. Judging ¶ from the experience of other Latin American
countries, U.S. efforts¶ to lighten Mexico’s burden will at best be of secondary importance. Similarly, ¶ Wild
West capitalism in Russia should not be thought of as a brief ¶ transitional phase. The deep shortcomings
of the rule of law in Russia¶ will take decades to fix. The Asian financial crisis has shown observers¶ that
without the rule of law the Asian miracle economies are unstable. ¶ Although that realization was abrupt,
remedying the situation will be a¶ long-term enterprise.
 Bivens Bad—TK
CP destroys the entire targeted killing program and chain of command—
collapses military effectiveness
Richard Klingler, 7/25/12, Bivens and/as Immunity: Richard Klingler Responds on Al-Aulaqi–and I
Reply, www.lawfareblog.com/2012/07/bivens-andas-immunity-richard-klingler-responds-on-al-aulaqi-and-
i-reply/

Steve’s post arguing that courts should recognize Bivens actions seeking damages from military officials based on wartime
operations, including the drone strikes at issue in al-Aulaqi v. Obama, seemed to omit some essential legal and policy points. The
post leaves unexplained why any judge might decline to permit a Bivens action to proceed against military officials and
policymakers, but a fuller account indicates that barring such Bivens actions is sensible as a matter of national
security policy and the better view of the law. A Bivens action is a damages claim, directed against
individual officials personally for an allegedly unconstitutional act, created by the judiciary rather than by Congress. The particular
legal issue is whether a suit addressing military operations implicates “special factors” that “counsel hesitation” in recognizing such
claims (injunctions and relief provided by statute or the Executive Branch are unaffected by this analysis). In arguing that the answer
is ‘no,’ the post (i) bases its Bivens analysis on how the Supreme Court “has routinely relied on the existence of
alternative remedial mechanisms” in limiting Bivens relief; (ii) argues that the Bivens Court “originally intended” that there be some
remedy for all Constitutional wrongs in the absence of an express statutory bar to relief; (iii) invokes the policy interest in
dissuading military officials from acting unlawfully, and (iv) argues that courts should ensure that a remedy
exists if an officer has no defenses to liability (such as immunity). The post’s first point, which underpins the legal analysis, is
simply not correct. United States v. Stanley, the Supreme Court’s most recent and important Bivens case in the military context,
directly rejected that argument: “it is irrelevant to a ‘special factors’ analysis whether the laws currently on the books afford Stanley,
or any other particular serviceman, an ‘adequate’ federal remedy for his injuries. The ‘special factor’ that ‘counsels hesitation’ is …
the fact that congressionally uninvited intrusion into military affairs by the judiciary is inappropriate.” Wilkie v. Robbins, too, expressly
indicated that consideration of ‘special factors’ is distinct from consideration of alternative remedies and may bar a Bivens claim
even where no remedy exists (and that in a Souter opinion for eight Justices). Similarly, the Bivens Court’s original intention is a
poor basis for implying a damages claim in the military context . Justice Brennan in 1971 no doubt would have
resisted the separation of powers principles reflected in cases that have since limited Bivens relief, especially for military matters.
Instead, the relevant inquiry needs to address either first principles (did Congress intend a remedy and personal liability in this
particular context? should judges imply one?) or the line of Supreme Court cases beginning with, but also authoritatively limiting,
Bivens. There’s considerable support for denying a Bivens remedy under either of those analyses: for the former,
support in the form of the presumptions deeply rooted in precedent and constitutional law that disfavor
implied causes of action, as well as the legal and policy reasons that have traditionally shielded military
officials from suit or personal liability; for the latter, Stanley, Chappell v. Wallace, Wilkie, the last thirty years of Supreme Court
decisions that have all limited and declined to find a Bivens remedy, and various separation of powers cases pointing to a limited
judicial role in military affairs. The post’s policy point regarding incentives that should be created for military officers to do
no wrong is hardly as self-evident as the post claims. Congress has never accepted it in the decades since Stanley
and has instead generally shielded military officials from personal financial liability for their service. Supreme
Court and other cases from Johnson v. Eisentrager to Stanley to Ali v. Rumsfeld have elaborated the strong policy interest
in not having military officials weigh the costs and prospects of litigation and thus fail to act decisively in
the national interest. Many other Supreme Court cases have emphasized the potential adverse security
consequences and limited judicial capabilities when military matters are litigated. The post criticizes Judge
Wilkinson’s view of the adverse incentives that Bivens liability would create. That view is, however, supported by decades
of Supreme Court and other precedent (and strong national security considerations) and was joined in that
particular case, as in certain others, by a liberal jurist — while the post’s view is, well, popular in faculty lounges
and among advocacy groups that would relish the opportunities to seek damages against military officers
and policymakers. As for the post’s proposed test, it fails to account for either the Bivens case law addressed above or the
separation of powers principles and litigation interests identified in the cases. It would simply require courts to determine
facts and defenses, often in conditions of great legal uncertainty and following discovery, which begs the question
whether Congress intended such litigation to proceed at all and fails to account for the costs of litigating military issues —
to the chain of command, confidentiality, and operational effectiveness . As noted in Stanley, those harms arise
whether the officer is eventually found liable or prevails. Those costs and the appropriate limits on
the judicial role are recognized, too, in the separation of powers principles that run throughout national security cases –
principles that jurists, even jurists sympathetic to the post’s perspective, should and will weigh as they resolve cases brought against
military officials and policymakers.
It wrecks TK operations and broader military effectiveness
Stuart Delery, Principal Deputy Assistant Attorney General Civil Division, 12/14/ 12, DEFENDANTS’
MOTION TO DISMISS, http://www.lawfareblog.com/wp-content/uploads/2012/12/MTD-AAA.pdf

First, the D.C. Circuit has repeatedly held that where claims directly implicate matters involving national security and
particularly war powers, special factors counsel hesitation. See Doe, 683 F.3d at 394-95 (discussing the “strength of the special
factors of military and national security” in refusing to infer remedy for citizen detained by military in Iraq); Ali, 649 F.3d at 773
(explaining that “the danger of obstructing U.S. national security policy” is a special factor in refusing to infer
remedy for aliens detained in Iraq and Afghanistan (internal quotation and citation omitted)); Rasul v. Myers, 563 F.3d 527, 532
n.5 (D.C. Cir. 2009) (same for aliens detained at Guantánamo Bay). These cases alone should control Plaintiffs’ claims here.
Plaintiffs challenge the alleged targeting of and missile strikes against members of AQAP in Yemen. Few cases
more clearly present “the danger of obstructing U.S. national security policy” than this one . Ali, 649
F.3d at 773. Accordingly, national security considerations bar inferring a remedy for Plaintiffs’ claims.19 Second, Plaintiffs’
claims implicate the effectiveness of the military . As with national security, the D.C. Circuit has consistently held that
claims threatening to undermine the military’s command structure and effectiveness present special
factors. See Doe, 683 F.3d at 396; Ali, 649 F.3d at 773. Allowing a damages suit brought by the estate of a leader of
AQAP against officials who allegedly targeted and directed the strike against him would fly in the face of
explicit circuit precedent. As the court in Ali explained: “It would be difficult to devise more effective
fettering of a field commander than to allow the very enemies he is ordered to reduce to
submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive
abroad to the legal defensive at home.” 649 F.3d at 773 (quoting Eisentrager, 339 U.S. at 779). Moreover, allowing
such suits to proceed “would diminish the prestige of our commanders, not only with enemies but with
wavering neutrals.” Id.; see also Vance, 2012 WL 5416500 at *5 (“The Supreme Court’s principal point was that civilian courts
should not interfere with the military chain of command . . . .”); Lebron, 670 F.3d at 553 (barring on special factors grounds Bivens
claims by detained terrorist because suit would “require members of the Armed Services and their civilian superiors to testify in court
as to each other’s decisions and actions” (citation and internal quotation omitted)). Creating a new damages remedy in the
context of alleged missile strikes against enemy forces in Yemen would have the same, if not greater,
negative outcome on the military as in the military detention context that is now well-trodden territory in this and other
circuits. These suits “would disrupt and hinder the ability of our armed forces to act decisively and without
hesitation in defense of our liberty and national interests .” Ali, 649 F.3d at 773 (citation and internal quotation omitted).
To infuse such hesitation into the real-time, active-war decision-making of military officers absent
authorization to do so from Congress would have profound implications on military effectiveness . This too
warrants barring this new species of litigation.

Nuclear war
Frederick Kagan and Michael O’Hanlon 7, Fred’s a resident scholar at AEI, Michael is a senior fellow in
foreign policy at Brookings, “The Case for Larger Ground Forces”, April,
http://www.aei.org/files/2007/04/24/20070424_Kagan20070424.pdf

We live at a time when wars

not only rage in nearly every region but threaten to erupt in many places where
the current relative calm is tenuous. To view this as a strategic military challenge for the United States is not
to espouse a specific theory of America’s role in the world or a certain political philosophy. Such an
assessment flows directly from the basic bipartisan view of American foreign policy makers since World War II that overseas threats
must be countered before they can directly threaten this country’s shores, that the basic stability of the international system is
essential to American peace and prosperity, and that no country besides the United States is in a position to lead the
way in countering major challenges to the global order. Let us highlight the threats and their
consequences with a few concrete examples, emphasizing those that involve key strategic regions of the world such
as the Persian Gulf and East Asia, or key potential threats to American security, such as the spread of nuclear
weapons and the strengthening of the global Al Qaeda/jihadist movement. The Iranian government has
rejected a series of international demands to halt its efforts at enriching uranium and submit to
international inspections. What will happen if the US—or Israeli—government becomes convinced that
Tehran is on the verge of fielding a nuclear weapon? North Korea, of course, has already done so, and
the ripple effects are beginning to spread. Japan’s recent election to supreme power of a leader who has
promised to rewrite that country’s constitution to support increased armed forces—and, possibly, even nuclear
weapons— may well alter the delicate balance of fear in Northeast Asia fundamentally and rapidly . Also, in
the background, at least for now, SinoTaiwanese tensions continue to flare, as do tensions between India and
Pakistan, Pakistan and Afghanistan, Venezuela and the United States, and so on. Meanwhile, the world’s
nonintervention in Darfur troubles consciences from Europe to America’s Bible Belt to its bastions of liberalism, yet with no
serious international forces on offer, the bloodletting will probably, tragically, continue unabated. And as bad as
things are in Iraq today, they could get worse . What would happen if the key Shiite figure, Ali al Sistani, were to die? If
another major attack on the scale of the Golden Mosque bombing hit either side (or, perhaps, both sides at the same time)? Such
deterioration might convince many Americans that the war there truly was lost—but the costs of reaching such a conclusion would
be enormous. Afghanistan is somewhat more stable for the moment, although a major Taliban offensive appears to be in
the offing. Sound US grand strategy must proceed from the recognition that, over the next few years and decades, the
world is going to be a very unsettled and quite dangerous place , with Al Qaeda and its associated groups as a
subset of a much larger set of worries. The only serious response to this international environment is to develop
armed forces capable of protecting America’s vital interests throughout this dangerous time. Doing so
requires a military capable of a wide range of missions—including not only deterrence of great
power conflict in dealing with potential hotspots in Korea, the Taiwan Strait, and the Persian Gulf
but also associated with a variety of Special Forces activities and stabilization operations. For
today’s US military, which already excels at high technology and is increasingly focused on re-learning the lost art of
counterinsurgency, this is first and foremost a question of finding the resources to field a large-enough standing Army and Marine
Corps to handle personnel intensive missions such as the ones now under way in Iraq and Afghanistan. Let us hope there will be no
such large-scale missions for a while. But preparing for the possibility, while doing whatever we can at this late hour to
relieve the pressure on our soldiers and Marines in ongoing operations, is prudent . At worst, the only potential
downside to a major program to strengthen the military is the possibility of spending a bit too much money. Recent history
shows no link between having a larger military and its overuse; indeed, Ronald Reagan’s time in office was
characterized by higher defense budgets and yet much less use of the military, an outcome for which we can
hope in the coming years, but hardly guarantee. While the authors disagree between ourselves about proper increases in the size
and cost of the military (with O’Hanlon preferring to hold defense to roughly 4 percent of GDP and seeing ground forces increase by
a total of perhaps 100,000, and Kagan willing to devote at least 5 percent of GDP to defense as in the Reagan years and increase
the Army by at least 250,000), we agree on the need to start expanding ground force capabilities by at least 25,000 a year
immediately. Such a measure is not only prudent, it is also badly overdue.
 1AR – Bivens Wrecks TK
That makes TK operationally ineffective and critically threatens executive
authority
Stuart Delery, Principal Deputy Assistant Attorney General Civil Division, 12/14/ 12, DEFENDANTS’
MOTION TO DISMISS, http://www.lawfareblog.com/wp-content/uploads/2012/12/MTD-AAA.pdf

The third and fourth Baker factors also warrant dismissal. The decision to use lethal force involves policy choices—to
be taken in light of fast-paced and evolving intelligence available regarding specific threats posed by armed
terrorist organizations that operate outside the constraints of the laws of war and hide amongst civilian populations— that are “of a
kind clearly for nonjudicial discretion.” Baker, 369 U.S. at 217. It requires balancing the risk of harm to our Nation
and the potential consequences of using force. Similarly, whether non-lethal means were “reasonably” available requires
“policy choices and value determinations.” Japan Whaling, 478 U.S. at 230. As detailed above, the risks to ground forces that may
or may not be tolerable as a possible non-lethal alternative to a purported missile strike clearly involve policy choices, as do the
foreign policy implications that making such an operational choice abroad might entail. Any decision on the potential level of harm to
innocent bystanders that may be tolerable in the context of alleged missile strikes against enemy targets overseas in an armed
conflict undoubtedly raises policy choices for executive, not judicial, determination. As Plaintiffs implicitly acknowledge, Compl. ¶¶
35, 40, civilian casualties are a regrettable but ever-present reality in armed conflict. The question is not whether such casualties will
occur, but rather if they do, what amount of risk of harm to bystanders would be consistent with an appropriate use of force under
the circumstances, based on principles that guide the Executive in an armed conflict. Moreover, judicially crafted standards
that are specific, particular, and applied to a given set of facts may prevent or control the contours of future
operations involving armed force overseas, which could inhibit the Executive’s ability to carry out
its national self-defense prerogative. These issues all require “policy choices and value determinations”
that are reserved for the Executive. Japan Whaling, 478 U.S. at 230. Deciding these issues in the context of this case
would also fail to acknowledge the distinct role and structure of judicial decision-making in relation to the political branches, and
would thus show a “lack of the respect due” to those branches, the fourth Baker factor . The Judiciary has “institutional
limitations” when it comes to “strategic choices” involving national security and foreign affairs. El-Shifa, 607 F.3d
at 843. Unlike the Executive, “the judiciary has no covert agents, no intelligence sources, and no policy
advisors.” Schneider, 412 F.3d at 196. Moreover, the “complex subtle, and professional decisions as to the composition, training,
equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the
Legislative and Executive Branches.” Gilligan, 413 U.S. at 10. “The ultimate responsibility for these decisions is appropriately vested
in branches of the government which are periodically subject to electoral accountability.” Id. Thus , “[i]t is not the role of
judges to second-guess, with the benefit of hindsight , another branch’s determination that the interests of the United
States call for military action.” El-Shifa, 607 F.3d at 844. The use of RPAs to combat the threat to this Nation’s security
emanating from abroad posed by al-Qa’ida and associated forces involves just such a considered policy choice. See Robert
Chesney, Text of John Brennan’s Speech on Drone Strikes Today at the Wilson Center (RPA Speech), Lawfare (Apr. 30, 2012,
12:50 pm), http://www.lawfareblog.com/2012/04/ brennanspeech/ (“Targeted strikes are wise.”).11 A finding by a court that
another method of counterterrorism was more appropriate under the precise circumstances alleged—and in
fact was constitutionally required— would show a “lack of the respect due” to the Executive ’s policy choices
regarding how to conduct a congressionally authorized armed conflict and its national defense mission.
See El-Shifa, 607 F.3d at 844; Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 932 (D.C. Cir. 2003) (“It is not
within the role of the courts to second- guess executive judgments made in furtherance of that branch’s proper
role.”).

The aff causes judicial crackdown on targeted killing—every decision seems

illegitimate ex post
Marguilies ‘10
Peter, Professor of Law, Roger Williams University, “Judging Myopia in Hindsight: Bivens Actions,
National Security Decisions, and the Rule of Law” IOWA LAW REVIEW Vol. 96:195

biases often come in opposing pairs. If presentist bias

Like Karl Llewellyn’s canons of statutory interpretation,64
was the only problem afflicting the government in national security cases , vigorous judicial review
might adequately deal with the situation. However, courts must also consider the role of hindsight bias.
Afflicted by hindsight bias, people overestimate the probability that harm could have been prevented.65
In reality, the perfect storm is easiest to spot in retrospect : a harm often stems from an unforeseeable confluence of
causes.66 As the Framers understood, fear of hindsight bias by courts, superiors, or the public can distort
an official’s analysis of risk. The resulting path-dependence undermines stability in government. While the
Court’s post-Bivens decisions sought to take hindsight bias into account, the analysis in these decisions was often onedimensional.
Hindsight bias, like myopia, feeds on other cognitive flaws such as the availability heuristic .67 Just as people
overweigh present harms that prompt vivid images and neglect more diffuse effects,68 a harm that has already occurred
serves as an “anchor” for assessment of the acts or omissions that failed to prevent that harm.69 With a
visible and vivid harm as anchor, viewers typically find those acts or omissions wanting , even when
officials acted reasonably based on the information at hand. In counterterrorism and ordinary law
enforcement, hindsight bias skews reactions to both false negatives and false positives. Consider false negatives
first. Suppose that a judge releases a defendant on bail after concluding that the defendant was neither a flight risk nor a danger to
the community. The defendant then commits a serious crime. While the judge may have failed to adequately evaluate the evidence,
the risk may also have turned on factors that were not accessible to the court. Despite this possibility, people influenced by hindsight
bias assume that the judge erred.70 Reaction to false positives features the same dynamic. Suppose that
officials detain someone based on the assessment that the individual is dangerous, but subsequent events
demonstrate that the individual poses no threat. In this context, people view the initial assessment as
flawed. In the glare of hindsight, the decision did not merely turn out badly, as any option might given the multitude of
variables that decisionmakers cannot fully know or control. Instead, hindsight suggests that the harm flowed directly from
obvious errors that a better decisionmaker would not have made.71

Remedy’s inject destructive second-guessing and undermines intel

Afsheen John Radsan, William Mitchell College of Law, and Richard W. Murphy, Texas Tech University
School of Law, 2009, Due Process and Targeted Killing of Terrorists, , papers.ssrn.com/sol3/papers.cfm?
abstract_id=1349357

In defense of this anomaly, there are obvious policy reasons for not allowing Bivens-style claims against
American officials for targeted killings wherever they occur in the world. Among them, we do not want
federal courts damaging national security through excessive, misdirected second-guessing of executive
judgments; nor do we want the litigation process to reveal information that national security requires to be
kept secret. In Arar v. Ashcroft, a divided panel of the Second Circuit cited these ―special factors‖ to
disallow a plaintiff from bringing a Bivens claim against officials he alleged subjected him to extraordinary
rendition.209

Chilling effect—impossible standards cause us to call off missions

Solomon ‘8
Solon, Faculty of Law, The Hebrew University of Jerusalem., “TARGETED KILLINGS AND THE
SOLDIERS' RIGHT TO LIFE,” 14 ILSA J. Int'l & Comp. L. 99 2007-2008

In modem warfare, where combatants purposely hide among the civilian population-oftentimes with the
encouragement of the civilians themselves the argument can even be posed that the latter constitutes a legitimate
target. What is included in the category of "targets," according to the Hague Regulations and the laws of war, is
broader than just troops in the field. Non-combatants and civilians can be designated as a valid target if they are sufficiently
involved in the war effort. The decision of whether a civilian should be deemed a valid target depends on context.96 In situations
where aerial bombardments occur in areas that basically constitute a battlefield where it is known that military targets are mainly
situated and civilian presence, if traced, should be deemed as unexpected or incidental97according to Article 57 of the First
Additional Protocol, any civilian losses should not be deemed as contravening international humanitarian law. Such would be the
case for any civilians remaining in an area after having been warned by the attacking army that the specific region would be subject
to an aerial bombardment.98 The critical issue that determines the legality of air strikes against military targets
is not the existence of civilian casualties, but their number. The preference for sparing soldiers' lives and
the price it inflicts on the enemy civilian population is legitimate , once no other operational alternatives exist, sound
and reliable information are at the army's disposal regarding the particular target99 and the incidental loss of life in the enemy
civilian population is not excessive in relation to the concrete and direct military advantage. The problem with the principle of
proportionality is that as every principle, it is quite abstract and thus difficult to apply . 0 In weighing the
pros and cons and possible disagreements regarding the legality of an operation in cases where joint
military action has to be taken, a military commander may find it difficult to concretize the principle ,
which can lead even to the annulment of an operation. ' One additional difficulty is the fact that the number of
potential civilian casualties is never known in advance. In targeted killings this is exceedingly true.
One additional issue that is raised in the practice of targeted killings in respect to civilian casualties and is closely linked to the
principle of proportionality is whether the final large number of collateral civilian damages should be seen as an
ex ante or ex post facto for the pronouncement of the illegality of the operation . In other words, the question is
whether the legality of an attack should be judged by the knowledge of its planners and their intentions to
act according to the laws of war or according to the results of the operation, such as the high number of civilian casualties or the
revelation that the person targeted was in fact innocent. Jurists have always been loath to "second guess" the
military which operates often in the heated context of the battlefield.'0° Yet , expectations are higher in
cases where the planners of a particular operation have the time and possibility to calmly take into
consideration various parameters before making a decision-in our case , the order for a targeted killing.
The deep split among thejudges of the Grand Chamber of the European Court of Human Rights in the McCann case is indicative.
'03