Table of Contents - stlouisurbandebate.org · Web viewTable of Contents . Table of Contents1. Glossary3. Notes4. Negative5 1NC Counterplan Versions6. 1NC Refugees Counterplan7

National Association for Urban Debate LeaguesCourts CP

Table of Contents

Table of Contents.......................................................................................................1Glossary.....................................................................................................................3Notes.......................................................................................................................... 4Negative..................................................................................................................... 5

***1NC Counterplan Versions***........................................................................61NC Refugees Counterplan................................................................................7V1NC Visas Counterplan.....................................................................................81NC Travel Ban Counterplan – Immigration and Nationality Act Version (1/2).91NC Travel Ban Counterplan – Immigration and Nationality Act Version (2/2)101NC Travel Ban Counterplan – First Amendment Version (1/2).......................111NC Travel Ban Counterplan – First Amendment Version (2/2).......................121NC Uphold DACA Counterplan.......................................................................131NC Child Migrants/Dream/DACA Counterplan...............................................141NC Path to Citizenship Counterplan...............................................................15***1NC Net Benefits***.....................................................................................161NC – Net Benefit – Rule of Law (1/2)..............................................................171NC – Net Benefit – Rule of Law (2/2)..............................................................18Extension – Net Benefit – Immigration Key......................................................19Net Benefit – Politics/Midterms........................................................................20Extension – Politics Net Benefit........................................................................21***2NC/1NR Extensions***...............................................................................22Solvency – General – Due Process....................................................................23Extension – General – Due Process Solvency....................................................24Solvency – Spillover -- General.........................................................................25Solvency – Spillover – Due Process...................................................................26Solvency – Impacts Policymaking.....................................................................27Solvency – Intl Signaling...................................................................................28Solvency – Kritikal............................................................................................29Solvency – Lawful Permanent Residents..........................................................30Answers To: Permutation Do The Counterplan 1/3..........................................31Answers To: Permutation Do the Counterplan 2/3...........................................33

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Answers To: Permutation Do the Counterplan 3/3...........................................34Answers To: Permutation Do Both 1/3..............................................................35Answers To: Permutation Do Both 2/3..............................................................36Answers To: Permutation Do Both 3/3..............................................................37Answers To: Permutation Do the Counterplan and Plan as Enforcement........38Answers To: Plenary Power Disadvantage – Nonunique...................................39Answers To: Plenary Power Disadvantage – Plenary Power Resilient..............40Answers To: Plenary Power – Doesn’t Impact Natl Security............................41

Affirmative...............................................................................................................422AC – Agent Counterplans Bad.........................................................................432AC – Permutation Do The CP – “Reduce Restrictions”...................................44Extension --- Courts Can “Reduce Restrictions”...............................................45Answers To: Permutation Do the CP Severs “The”...........................................462AC – Permutation Do Both..............................................................................47Answers To: CP Announced in June..................................................................482AC – Courts Fail – Laundry List......................................................................492AC – Courts Fail – Rights Insufficient.............................................................502AC – Courts Fail – Signaling............................................................................51Answers To: Politics Net Benefit.......................................................................52Answers To: Rule of Law Net Benefit 1/2.........................................................53Answers To: Rule of Law Net Benefit 2/2.........................................................54***Offense***.....................................................................................................562AC – Plenary Powers Offense 1/2...................................................................572AC – Plenary Powers Offense 2/2....................................................................58Extension – Uniqueness – Plenary Power Strong Now 1/2...............................59Extension – Uniqueness – Plenary Power Strong Now 2/2...............................60Extension – Link – Counterplan Collapses Plenary Powers..............................61Extension – Link – Answers To: Counterplan Doesn’t Hurt Plenary Powers....62Extension – Internal Link – FoPo Deference Good............................................63Extension – Impact – Laundry List....................................................................64Extension – Immigration Challenge Spills Over................................................65

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Glossary Statute – a law passed by Congress

Precedent – the idea that one court ruling shapes future court rulings and interpretations of law

Federal judiciary – the judicial branch of the Federal Government, including the Supreme Court of the United States and the United States Court of Appeals for the Ninth Circuit

Common Law Doctrine – laws and policies that have been produced over time by judicial precedent and customs

Judicial Review – the power delegated to the courts to review executive and congressional actions

Due Process and Substantive Due Process – due process refers to the idea that the government cannot deny an individual’s rights without legal procedures to protect them (like a trial). It is established in the 5th Amendment and the 14th Amendment of the Constitution. Substantive Due Process is a component of this and deals with which rights should be protected. There is debate over whether these protections are privileges of citizenship or not.

Rule of Law – the degree to which rules fairly govern life in societies. Absence of rules or unequal application of rules weakens the rule of law.

Shielding/political cover – the notion that because federal judges do not get elected and do not have to campaign, they can rule on unpopular decisions, drawing blame away from the Executive or the Legislative branch.

Habeas Corpus Review – Habeas Corpus is a procedure for bringing detainees or prisoners before the court to decide if their detention/imprisonment is justified by law. Habeas Corpus Review refers to the courts’ ability to review whether these imprisonments/detentions are justified.

Plenary power and Immigration – Plenary power refers to power that is delegated exclusively or almost exclusively to one branch. Many argue that there has been or is a plenary power doctrine within immigration because Article I of the Constitution gives Congress responsibility for establishing “rule of naturalization” (the way people become citizens).

Refugee Act of 1980 – created US procedures and grounds for admitting refugees.

Trump v. Hawaii – the primary lawsuit which charges that the Trump Administration’s Travel Ban is unconstitutional

Presidential Proclamation 9645 – the latest version of the travel ban

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Notes Counterplan VersionsRefugees Counterplan – The Refugee Act of 1980 established the procedure for seeking asylum. There has been some debate over who it covers and what triggers the right to seek asylum. The counterplan rules to expand refugee protections to the plan’s refugee group, expanding who the Refugee Act of 1980 covers.

Visas Counterplan – Visas are an important way the government permits skilled workers to come to the United States. Consular officers review are members of the executive branch who decide who gets a visa. Currently, the court has been hands off in reviewing these decisions. The counterplan argues that courts can grant visas by claiming they are justified by law or have been arbitrarily denied in the past.

Travel Ban Counterplan – Trump v. Hawaii is a suit brought against the travel ban. The first version of the counterplan has the court rule against the travel ban because the Immigration and Nationality Act states that the executive cannot discriminate when it bans people from coming to the United States and the ban targets Muslim-majority countries. The second version also has the court rule against it, but on the grounds that discriminating against Muslims violates the First Amendment’s freedom to exercise religion. If the court rules for the travel ban during the season, the counterplan text should be modified to overrule that decision, but can use the same grounds.

DACA Counterplan – DACA was an executive order. Some states challenged it on the grounds that Obama had overstepped his powers and done the business of immigration policy-making delegated to Congress. The counterplan has the court rule that DACA was not an overreach of executive power.

Child Migrants Counterplan – This is an alternative counterplan to the DACA version which still increases protections for child migrants. It creates a test for who has substantive due process rights like the right to life in the United States by arguing people with “strong ties” to the U.S. (like children who grew up here) should be protected by the Constitution.

Path to Citizenship Counterplan – this counterplan, like the Refugee Counterplan, expands the Refugee Act of 1980. It takes that counterplan a step further by arguing that the undocumented should be considered refugees and have a right to remain here.

Counterplan Competition

The negative argues that the counterplan competes on two phrases in the resolution: “reduce restrictions” and “The United States federal government”. The neg argues that the courts cannot directly reduce restrictions, but instead create the legal necessity for reducing restrictions, forcing the hand of the executive and/or legislative branch (for example to grant visas). The neg also argues that the meaning of “The USfg” requires the affirmative case to use all three branches while the counterplan only uses the judicial branch.

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Negative

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***1NC Counterplan Versions***

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1NC Refugees Counterplan Counterplan Text: The Federal Judiciary should rule that < plan > on the basis that <1AC’s refugee group> has a right to asylum in the United States

The counterplan clarifies the scope of the Refugee Act of 1980 – this creates safeguards and right to asylum for <the plan’s refugee group> Coffey, JD from the University of Florida, 2000(Kendall, 2000, “The Due Process Right To Seek Asylum in the United States: The Immigration Dilemma and Constitutional Controversy”, Yale Law & Policy Review, 19(2), https://pdfs.semanticscholar.org/109e/ec8da276d707f917dcf31064dbe6c0255235.pdf)

The ambivalence of the immigration paradox has profound constitutional dimensions. Perhaps no issue can be more basic than the threshold issue of the right of aliens to remain in this country. Strikingly, however, this transcendent question, a critical constitutional inquiry for millions of aliens,9 has not been answered by the Supreme Court during the two decades since passage of the historic Refugee Act of 1980, establishing a statutory right to seek asylum.' 0 When the issue of whether due process enveloped the alien's right to seek asylum was presented to the Court in 1985, it declined to reach the constitutional question and opted for disposition on purely statutory grounds. I ' Nor was any such constitutional right addressed in 1993, when the Court held that the interdiction of aliens on the high seas fell beyond the jurisdictional reach of the U.S. asylum laws and treaty obligations.' 2 As a result, the question of whether aliens on U.S. soil have a constitutionally protected right to petition for asylum has engendered deep conflict among the circuit courts of appeals. 13 That conflict, and the absence of recent Supreme Court guidance, parallel the self-doubt that pervades much of our nation's immigration policy. With an estimated six million undocumented aliens within our borders, 14 few constitutional questions today embody such uncertain implications for so many people. Whatever may be the societal ambivalence that pervades immigration policy, it cannot be acceptable for the law to leave unanswered the question of whether so many men, women, and children who seek to remain here stand constitutionally invisible in their quest. Indeed, the doctrines that have traditionally defined the legal framework for those aspirations date back to the Nineteenth Century, an age of myriad constitutional abdications.' 5 Plainly, in light of modem constitutional decisions, the Supreme Court should revisit and determine the due process safeguards for asylum seekers.

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V1NC Visas Counterplan Counterplan Text: The Federal Judiciary should rule that <plan> The counterplan leverages exceptions that challenge the constitutionality of legislation limiting <the plan’s> visas – that solves by forcing larger visa quotas Dobkin, Immigration Lawyer at Dobkin & Associates, 2010(Donald S., “Challenging The Doctrine Of Consular Nonreviewability In Immigration Cases”, Georgetown Immigration Law Journal, 24(113), http://www.dsdobkin.com/assets/10113/ArticleDobkinGILJ.pdf)This doctrine—referred to both as consular nonreviewability and as consular absolutism—was long in the making. The Supreme Court has noted that precedents from over a century ago “held broadly... that the power to exclude aliens is ‘inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers—a power to be exercised exclusively by the political branches of government . . . .’”6 From this principle, the courts have created a common law doctrine that generally precludes any meaningful judicial review of consular decisions regarding the issuance or denial of visas. As a result, when a consular officer denies a visa, the visa applicant is generally without any recourse. Although some applications receive administrative review by the state department’s visa office, this is generally limited to purely legal questions, is merely advisory on factual issues, and can only occur when requested by a consular officer—a visa applicant has no right to request such review.7 Regardless of whether any administrative review occurs, judicial review is generally barred by the doctrine of consular nonreviewability. The overwhelming majority of courts in the United States have followed the doctrine of consular nonreviewability. Indeed, some courts even go so far as to state that “the doctrine of nonreviewability of consular officers’ visa determinations is essentially without exception.”8 In 1996, the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA),9 which was interpreted by some courts to preclude non-governmental entities from bringing lawsuits challenging consular actions,10 further strengthened the stranglehold on alien rights at United States embassies. According to a recent federal district court decision, a court “does not have jurisdiction to review a consular official’s decision, even if its foundation was erroneous, arbitrary, or contrary to agency regulations.”11 As one scholar has noted, challenges to the doctrine of consular nonreviewability have been met with only “limited success in federal courts.”12 Despite the general doctrine of consular nonreviewability, and despite claims that it is essentially without exceptions and that challenges to it are often unsuccessful, courts have in fact carved out at least two major exceptions to the doctrine—situations where visa applicants are allowed to argue that a consular officer’s decision was particularly arbitrary or contrary to law.13 This Article focuses on those exceptions and how practitioners can best make use of them to help their clients overcome unfavorable consular decisions. Part I of this article provides a brief overview of the development of the doctrine of consular nonreviewability and highlights some of the problems created by the doctrine. The rest of the Article is devoted to the two main exceptions to the doctrine of consular nonreviewability. Part II addresses an exception that the Supreme Court recognized in Kleindienst v. Mandel for instances where the government does not have a “facially legitimate and bona fide reason” for denying a visa.14 Part III discusses an exception allowing judicial review when a visa applicant requests a court to analyze an underlying legal issue that does not involve the discretionary decisionmaking of a consular officer. Specifically, Part III.A addresses situations where courts

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have allowed visa applicants to challenge the constitutionality of the underlying statute or regulation that formed the basis for the visa denial. Part III.B addresses situations where courts have granted review to determine whether a consular officer made a procedural error, such as violating federal regulations by failing to issue a written decision for the denial or issuing a letter that fails to qualify as a refusal.15 These two exceptions allow a visa applicant at least some degree of hope for reversing an unfavorable decision made by a consular officer. Although immigration law practitioners are all too well aware of how slim that hope sometimes is, it is better than nothing. This Article analyzes how to best take advantage of the two recognized exceptions to the doctrine of consular nonreviewability.

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1NC Travel Ban Counterplan – Immigration and Nationality Act Version (1/2)

Counterplan Text: The Supreme Court of the United States should rule for the plaintiff in Trump v. Hawaii, declaring that Presidential Proclamation 9645 violates the Immigration and Nationality Act.

This solves – Presidential Proclamation 9645 is the most recent version of the travel ban – it’s on the Supreme Court docket now Boston Globe News Publication Editorial, 2018(4/24/2018, “Supreme Court should strike down Trump’s travel ban”, Boston Globe, https://www.bostonglobe.com/opinion/editorials/2018/04/23/supreme-court-should-strike-down-trump-travel-ban/nUUnLPZm0hC4XJtf6GpsRL/story.html)

THE SUPREME COURT will journey into uncharted territory on Wednesday, when justices hear a legal challenge to President Trump’s travel ban. Opponents will seek to show that the president exceeded his authority and acted with religious animus when he blocked travelers from a group of predominantly Muslim countries last year, and that the policy should be struck down as a result. Nothing quite like Trump v. Hawaii has come before the court before — because no president has so readily tweeted his bigoted motives. There can’t be much serious dispute that Trump does, in fact, harbor anti-Muslim attitudes. His promise during the 2016 campaign to block Muslims from entering the United States was, explicitly, a promise to discriminate based on religion. And the ban clearly emerged from those promises. The government revised the plan twice — and added North Koreans in an apparent effort to find some non-Muslims to block too — but the chain of events and the president’s own tweets make clear that the policy was intended to make good on his bigoted campaign pledge. After-the-fact rationalizations of the type the administration has since concocted to defend the ban can’t undo the idea’s trajectory from tweet to policy. The question is whether, from a legal standpoint, any of that should matter. To hear the Justice Department tell it, the president has such broad powers over immigration that the plaintiffs have no legal right to “challenge the exercise of discretionary power vested by statute directly in the president.” And they try to finesse their way past the First Amendment by obfuscating the ban’s motives. It’s a sweeping assertion of executive power that the justices should reject. As a fundamental matter, the country’s basic legal guardrails — including the establishment clause that prohibits favoring any religion over others — don’t come with loopholes. The president’s actions clearly “denigrated persons of the Muslim faith,” as the plaintiffs put it. That fact alone taints the whole order. But even without a finding of animus by the court, the president also lacks the power to ban whole nationalities. As the plaintiffs showed, Congress explicitly rejected discrimination by national origin in visa issuance. The president can temporarily ban classes of people, but he can’t simply rewrite that legal directive. The case has attracted widespread attention, and not just because of its impact on Muslims. With this decision, the justices will orient how federal courts respond to the Trump presidency and to his public statements. If the Supreme Court chooses to ignore or minimize the president’s words and tweets, or treat them as somehow irrelevant,

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that will set an unfortunate see-no-evil precedent. But words have meaning. The better outcome would be for the justices to send a signal to the White House — and to the country — that the court knows bigotry when it hears it, and knows that it has no place in American law.

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1NC Travel Ban Counterplan – Immigration and Nationality Act Version (2/2)

A key legal question is whether the ban was discriminatory and in turn violated the Immigration and Nationality Act Lind, Reporter at Vox, 2018,(Dara, 4/25/2018, “Trump v. Hawaii: the Supreme Court might make Trump’s travel ban permanent”, Vox, https://www.vox.com/policy-and-politics/2018/4/24/17268568/muslim-travel-ban-supreme-court)

2) Is the travel ban legal?

Section 1182(f) of the US Code (passed as part of the Immigration and Nationality Act) gives the executive branch the authority to suspend the entry of a class of aliens if the executive “finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States.”

From the Trump administration’s perspective, that’s exactly what they’ve done with the travel ban.

The critics, and lower courts, think it’s not that simple. In particular, they point to a later addition to the Immigration and Nationality Act — section 1152(a)(1)(A) — that prohibits the government from discriminating in immigration law on the basis of several traits, including nationality. The question of which clause trumps the other is central to the legality argument.

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1NC Travel Ban Counterplan – First Amendment Version (1/2)

Counterplan Text: The Supreme Court of the United States should rule for the plaintiff in Trump v. Hawaii, declaring that Presidential Proclamation 9645 violates the First Amendment of the United States Constitution.

This solves – Presidential Proclamation 9645 is the most recent version of the travel ban – it’s on the Supreme Court docket now Boston Globe News Publication Editorial, 2018(4/24/2018, “Supreme Court should strike down Trump’s travel ban”, Boston Globe, https://www.bostonglobe.com/opinion/editorials/2018/04/23/supreme-court-should-strike-down-trump-travel-ban/nUUnLPZm0hC4XJtf6GpsRL/story.html)

THE SUPREME COURT will journey into uncharted territory on Wednesday, when justices hear a legal challenge to President Trump’s travel ban. Opponents will seek to show that the president exceeded his authority and acted with religious animus when he blocked travelers from a group of predominantly Muslim countries last year, and that the policy should be struck down as a result. Nothing quite like Trump v. Hawaii has come before the court before — because no president has so readily tweeted his bigoted motives. There can’t be much serious dispute that Trump does, in fact, harbor anti-Muslim attitudes. His promise during the 2016 campaign to block Muslims from entering the United States was, explicitly, a promise to discriminate based on religion. And the ban clearly emerged from those promises. The government revised the plan twice — and added North Koreans in an apparent effort to find some non-Muslims to block too — but the chain of events and the president’s own tweets make clear that the policy was intended to make good on his bigoted campaign pledge. After-the-fact rationalizations of the type the administration has since concocted to defend the ban can’t undo the idea’s trajectory from tweet to policy. The question is whether, from a legal standpoint, any of that should matter. To hear the Justice Department tell it, the president has such broad powers over immigration that the plaintiffs have no legal right to “challenge the exercise of discretionary power vested by statute directly in the president.” And they try to finesse their way past the First Amendment by obfuscating the ban’s motives. It’s a sweeping assertion of executive power that the justices should reject. As a fundamental matter, the country’s basic legal guardrails — including the establishment clause that prohibits favoring any religion over others — don’t come with loopholes. The president’s actions clearly “denigrated persons of the Muslim faith,” as the plaintiffs put it. That fact alone taints the whole order. But even without a finding of animus by the court, the president also lacks the power to ban whole nationalities. As the plaintiffs showed, Congress explicitly rejected discrimination by national origin in visa issuance. The president can temporarily ban classes of people, but he can’t simply rewrite that legal directive. The case has attracted widespread attention, and not just because of its impact on Muslims. With this decision, the justices will orient how federal courts respond to the

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Trump presidency and to his public statements. If the Supreme Court chooses to ignore or minimize the president’s words and tweets, or treat them as somehow irrelevant, that will set an unfortunate see-no-evil precedent. But words have meaning. The better outcome would be for the justices to send a signal to the White House — and to the country — that the court knows bigotry when it hears it, and knows that it has no place in American law.

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1NC Travel Ban Counterplan – First Amendment Version (2/2)

A key legal question is whether the ban’s discrimination against Muslims violates freedom of religion under the First Amendment Lind, Reporter at Vox, 2018,(Dara, 4/25/2018, “Trump v. Hawaii: the Supreme Court might make Trump’s travel ban permanent”, Vox, https://www.vox.com/policy-and-politics/2018/4/24/17268568/muslim-travel-ban-supreme-court)

3) Is the travel ban constitutional? Because the travel ban is still referred to by its critics (and occasionally by its supporters) as a “Muslim ban,” it might sound like an obvious violation of the First Amendment’s guarantee of free expression of religion and its ban on the establishment of a state religion. Legally speaking, though, it is much more complicated. For one thing, this question comes back to the “facially legitimate and bona fide” standard — the government argues that since it has offered a national security rationale for the ban, the courts don’t have the power to scrutinize the policy’s constitutionality. But the reason Trump’s critics think the ban isn’t facially legitimate and bona fide is the same reason they think it violates the establishment clause to begin with: They believe that even though the ban doesn’t explicitly target Muslims and even though it now includes two non-Muslim countries, it was motivated by anti-Muslim animus and therefore is unconstitutional.

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1NC Uphold DACA Counterplan Counterplan Text: The Supreme Court should uphold Deferred Action for Childhood Arrivals on the grounds that it is a lawful exercise of executive power

The counterplan to uphold DACA solves – the case has been held up in court Blethen, MBA from Harvard Business School, 2016(Frank A., et al. – written as the Editorial Board of the Seattle Times, 4/25/2016, “How immigration reform would help unlock human potential”, The Seattle Times, https://www.seattletimes.com/opinion/editorials/how-immigration-reform-would-help-unlock-human-potential/)

ALMOST three years ago, the U.S. Senate passed a set of meaningful comprehensive immigration reforms. That hard-fought effort stalled in the U.S. House. Meanwhile, millions of people remain needlessly gripped by fear and uncertainty.

Last week, their fate became the subject of heated oral arguments before the U.S. Supreme Court.

Led by Texas, a coalition of states argue President Obama abused his executive authority in late 2014 when he expanded an existing immigration program that defers deportations for people brought to the United States as children. He also extended the same temporary work and residency rights to parents of children who are here legally. Two lower courts intervened and stopped the president’s actions from taking effect.

The Supreme Court should uphold Obama’s order, and Congress should finally overhaul the immigration system. Common-sense reforms should include an avenue to citizenship for some of the estimated 11 million individuals who have resided and worked in the U.S. for years. That includes 230,000 in this state.

Ilse Montes De Oca was brought to the U.S. when she was just 6 months old. She learned about the challenges of living in Washington illegally when she was diagnosed with cancer at age 9.

After spending her teen years picking pears and baking Mexican pastries in Yakima, she became the first member of her family to graduate from college, earning a degree from the University of Washington.

Granted legal status under Obama’s Deferred Action for Childhood Arrivals (DACA) policy, De Oca was able to work as a nanny and researcher at Seattle Children’s Hospital. This year, she earned a certified nursing assistant license and joined the same oncology unit that treated her as a child. Now 24, she has been accepted into Seattle University’s nursing program.

But like the other nearly 16,000 people in Washington with DACA status, De Oca does not qualify for federal financial aid. Nor can she defer admission.

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Jorge Baron, executive director of the Northwest Immigrant Rights Project, says De Oca’s situation is frustrating and far from rare. “These are people who are already contributing to our community,” he said. “They just want to contribute fully.”

People like De Oca have earned the opportunity to prove their hearts and talent belong in America.

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1NC Child Migrants/Dream/DACA Counterplan Counterplan Text: The Federal Judiciary should rule that <plan’s action> on the grounds that undocumented childhood arrivals are granted constitutional protections against deportation.The counterplan solves – it protects classes of undocumented immigrants who have strong ties to the United States like children by using constitutional protections secured by the Eighth Amendment and substantive due process Caldwell, Professor of Legal Analysis, Writing and Skills, Southwestern Law School, 2016(Beth, 2016, “Reducing The Deportation's Harm By Expanding Constitutional Protections To Functional Americans”, Whittier Law Review, 37(3), accessed via Hein Online)

Despite the traumatic nature of the consequences that flow directly from deportation-family separation, depression, and death judicial challenges to either its cruel nature or its interference with fundamental rights have historically failed. 2 In non-immigration cases, both the Fifth Amendment's guarantee of substantive due process and the Eighth Amendment's prohibition against cruel and unusual punishment limit the government's power. The right to marriage, for example, is a fundamental right protected by the Fifth and Fourteenth Amendments, and government infringement upon this right is generally subject to strict scrutiny.3 In immigration cases, however, challenges to deportation based on its interference with the right to marriage have been subject either to no scrutiny or, in the cases more favorable to immigrants' rights, to rational basis review.4 This paper draws upon primary research conducted with deportees in Mexico to highlight the need to extend constitutional protections to deportation proceedings. Deportation is particularly cruel for those who have become integrated into American society. People are permanently separated from their spouses and children, and from the only country that they have ever considered to be their home. This experience often triggers anxiety, depression, and suicidal ideation. The decision to exclude deportation cases from most constitutional protection was highly contested in 1893 when the doctrine was created in the case of Fong Yue Ting v. United States. At the time, Justice Field's dissent expressed concern that exempting deportation cases from judicial review would imbue "brutality, inhumanity, and cruelty" into the deportation cases. 5 Soon after, the Court found that basic procedural due process protections apply to deportation proceedings, subjecting them to some level of judicial review.6 But to this day, substantive due process rights remain unprotected in immigration cases. 7 Similarly, the Eighth Amendment's limit on cruel and disproportionate punishment has been held inapplicable to deportation cases because deportation is deemed to be a legitimate exercise of Congress's plenary power, rather than a punishment. 8 The "brutality, inhumanity, and cruelty" Justice Fields worried about in 1893 now characterizes United States deportation laws. In order to guard against the inhumane consequences that often flow from deportation, noncitizens with strong ties to the United States should be entitled to robust constitutional protections when they face deportation. Part One sets the stage for this legal argument. It explains the need for constitutional protections, and highlights the "brutality, inhumanity, and cruelty" of the current system, presenting research about the trauma people experience following deportation, especially when they have long-term ties to the United States. Here, I focus on deportation to Mexico because I have

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conducted research on the consequences of deportation from the United States to Mexico. Part Two discusses the plenary power doctrine, which has historically allowed deportation law to function with extremely limited constitutional intervention. Part Three argues that constitutional rights should apply to deportation cases, especially for people with strong ties to the United States who are, in the words of Cristina Rodriguez, "functional Americans." 9 Applying these constitutional limits to the government's power in deportation cases would promote a more humane, less cruel, rule of law. It concludes by recommending specific criteria that could be used to determine who qualifies as a "functional American" for purposes of extending constitutional protections in deportation proceedings.

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1NC Path to Citizenship Counterplan Counterplan Text: The Federal Judiciary should rule that undocumented immigrants have a due process right to asylum in the United States

The counterplan clarifies the scope of the Refugee Act of 1980 – due process doctrine creates an opening to apply this to undocumented immigrants in the United States Coffey, JD from the University of Florida, 2000(Kendall, 2000, “The Due Process Right To Seek Asylum in the United States: The Immigration Dilemma and Constitutional Controversy”, Yale Law & Policy Review, 19(2), https://pdfs.semanticscholar.org/109e/ec8da276d707f917dcf31064dbe6c0255235.pdf)

The ambivalence of the immigration paradox has profound constitutional dimensions. Perhaps no issue can be more basic than the threshold issue of the right of aliens to remain in this country. Strikingly, however, this transcendent question, a critical constitutional inquiry for millions of aliens,9 has not been answered by the Supreme Court during the two decades since passage of the historic Refugee Act of 1980, establishing a statutory right to seek asylum.' 0 When the issue of whether due process enveloped the alien's right to seek asylum was presented to the Court in 1985, it declined to reach the constitutional question and opted for disposition on purely statutory grounds. I ' Nor was any such constitutional right addressed in 1993, when the Court held that the interdiction of aliens on the high seas fell beyond the jurisdictional reach of the U.S. asylum laws and treaty obligations.' 2 As a result, the question of whether aliens on U.S. soil have a constitutionally protected right to petition for asylum has engendered deep conflict among the circuit courts of appeals. 13 That conflict, and the absence of recent Supreme Court guidance, parallel the self-doubt that pervades much of our nation's immigration policy. With an estimated six million undocumented aliens within our borders, 14 few constitutional questions today embody such uncertain implications for so many people. Whatever may be the societal ambivalence that pervades immigration policy, it cannot be acceptable for the law to leave unanswered the question of whether so many men, women, and children who seek to remain here stand constitutionally invisible in their quest. Indeed, the doctrines that have traditionally defined the legal framework for those aspirations date back to the Nineteenth Century, an age of myriad constitutional abdications.' 5 Plainly, in light of modem constitutional decisions, the Supreme Court should revisit and determine the due process safeguards for asylum seekers.

As is demonstrated in the pages that follow, it is submitted that a principled analysis of current due process doctrines will compel the conclusion that all aliens on U.S. soil do indeed have a due process right to seek asylum. Beginning with a brief overview of the early Supreme Court decisions, this Article turns to the passage of the Refugee Act of 1980, the landmark legislation conferring upon all aliens physically present within our lands a right to petition for asylum. 16 Based on that congressional enactment, the analysis demonstrates that a clear entitlement is created that due process must recognize and

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protect. The existing judicial controversy among federal circuits is thus properly resolved by validating the constitutional imperative on terms required by the settled principles of due process that govern all people within the sovereign jurisdiction of the United States.

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***1NC Net Benefits***

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1NC – Net Benefit – Rule of Law (1/2) Judicial leadership is key to the rule of law – that maintains the global US alliance structureNossel, former deputy assistant secretary of state for international organizations at the U.S. State Department, 2017(Suzanne, 2/14/2017, Donald Trump Has Put America in Legal Hell, Foreign Policy, http://foreignpolicy.com/2017/02/14/donald-trump-has-put-america-in-legal-hell/)

“Rule of law” as an underpinning of American power globally goes beyond international development, human rights, or nation-building efforts. Allies in Europe, Asia, and elsewhere want the friendship and protection of a powerful Washington because they trust the United States to uphold international norms that preserve their sovereignty and autonomy. The same cannot be said of Russia and China, whose assertions of power are generally greeted more warily. If the United States can no longer be trusted to be rule-bound at home, others will expect the same to be true abroad. Trump’s comments about dismissing treaties and international instruments compound the problem. The premise of rule of law is that rules and their means of enforcement must be stronger than the ability of any single individual, even a head of state, to thwart them. “Rule of law” was designed precisely to deal with the problem of Donald Trump: a ruler who would arrogate to himself an unfettered ability to remake society according to his will. The decision rendered by the 9th Circuit thus provides an important measure of assurance. At least for now Trump is being checked, like it or not.

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1NC – Net Benefit – Rule of Law (2/2) Collapsing credibility causes global nuclear war – US power is keyGoh, Lecturer in International Relations in the Department of Politics and International Relations at the University of Oxford, 2008

(Evelyn, International Relations of the Asia-Pacific, “Hierarchy and the role of the United States in the East Asian security order,” 2008 8(3):353-377, Oxford Journals Database)

Thus, the key determinants of the East Asian security order relate to two core questions: (i) Can the US be persuaded that China can act as a reliable ‘regional stakeholder’ that will help to buttress regional stability and US global security aims;16 and (ii) can China be convinced that the United States has neither territorial ambitions in Asia nor the desire to encircle China, but will help to promote Chinese development and stability as part of its global security strategy? (Wang, 2005). But, these questions cannot be asked in the abstract, outside the context of negotiation about their relative positions in the regional and global hierarchies. One urgent question for further investigation is how the process of assurance and deference operate at the topmost levels of a hierarchy? When we have two great powers of unequal strength but contesting claims and a closing capabilities gap in the same regional hierarchy, how much scope for negotiation is there, before a reversion to balancing dynamics? This is the main structural dilemma: as long as the United States does not give up its primary position in the Asian regional hierarchy, China is very unlikely to act in a way that will provide comforting answers to the two questions. Yet, the East Asian regional order has been and still is constituted by US hegemony, and to change that could be extremely disruptive and may lead to regional actors acting in highly destabilizing ways. Rapid Japanese remilitarization, armed conflict across the Taiwan Straits, Indian nuclear brinksmanship directed toward Pakistan, or a highly destabilized Korean peninsula are all illustrative of potential regional disruptions. 5.

Conclusion

To construct a coherent account of East Asia's evolving security order, I have suggested that the United States is the central force in constituting regional stability and order. The major patterns of equilibrium and turbulence in the region since 1945 can be explained by the relative stability of the US position at the top of the regional hierarchy, with periods of greatest insecurity being correlated with greatest uncertainty over the American commitment to managing regional order. Furthermore, relationships of hierarchical assurance and hierarchical deference explain the unusual character of

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Extension – Net Benefit – Immigration Key (__)

(__) Judicial action on immigration now broadly reasserts the rule of law and commitment to U.S. values – now is key – the rule of law unstable Setty, Professor of law, Western New England University School of Law, 2017 (Sudha, 9/28/2017, “The Plenary Powers Doctrine is Not a Blank Check”, American Constitution Society, https://www.acslaw.org/acsblog/the-plenary-powers-doctrine-is-not-a-blank-check)

If the Court is willing to put together these pieces—blatant animus and the lack of sound national security justifications for these travel bans—it can reinforce its own jurisprudence and hold that the plenary powers doctrine is limited at the point where it enables unconstitutional action or threatens the rule of law .

It is not entirely clear that the Court is willing do this. It has sent mixed messages since the September 11, 2001 terrorist attacks as to how much it will defer to the executive branch regarding national security, particularly in light of Congress’s vague and overly broad grant of authority in its Authorization for the Use of Military Force. This statute has served as the legal justification for everything from late 2001 U.S. bombing in Afghanistan to the ongoing U.S. military involvement in Syria. On one hand, the Court pushed back in its post-September 11 habeas corpus cases against Bush administration arguments that once national security is invoked, the courts cannot impose constitutional constraints with regard to non-U.S. persons. On the other hand, the Court has not seen fit to protect the constitutional rights of non-citizens in many other cases where national security concerns have been invoked.

Yet, at the very least, several post-September 11 cases show the Court’s willingness to refuse to rubber stamp the government’s position of “trust us, this is necessary for national security.” The Court must , at some point soon , take the opportunity to make clear that judicial review is an important element in maintaining the rule of law and democratic values, particularly when broad presidential authorities under the plenary powers doctrine are deployed as the justification for irrational and animus-laden decision making.

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Net Benefit – Politics/Midterms Politics is a net benefit -- court action on immigration provides political cover for unpopular actions”Venkatesh, Professor of Law at the University of Windsor, 2014(Vasanthi, Alan James Kluegel, JD From Georgetown University, 8/4/2014, “Bring in the Friendly Hand: The Effects of Judicial Inaction on Democratic Policymaking in Immigration Law”, Prepared for the 2014 Annual Meeting of the American Political Science Association, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2454187)

By modeling the Congress-President policy negotiation process with and without the threat of judicial review, we show that interbranch bargaining in areas involving executive discretion is more likely to be successful with the presence of an independent judiciary, and hypothesize that the ongoing failure to negotiate an immigration reform compromise is at least a partial consequence of judicial abstention in this area. We also show how judicial reticence is of particular concern when congressional gridlock allows for a status quo with a suboptimal equilibrium. Judicial intervention can be a mechanism that produces an equilibrium that improves on the status quo for both the President and Congress as a whole.

Courts and the Elected Branches

While the pre-eminent view of courts and the elected branches throughout much of the twentieth century assumed that courts were either antagonistic to elected leaders (Bickel 1962) or deferential to the dominant regime (Dahl 1957), there is a growing literature showing that policymakers actually use the courts to facilitate otherwise difficult democratic decisionmaking. Landes and Posner’s model of an independent judiciary sees the judiciary as assisting legislative bargaining by protecting legislative bargains against repeal by future legislatures (Landes and Posner 1975). The judiciary functions as an enforcer of the agreement between the Congress and interest groups to make sure that the policies advocated by the interest groups are made into long-lasting laws that survive election cycles. Thus, the judiciary increases the “present value of legislative wealth transfers to special interest groups.” (Shughart and Tollison 1997) Thus, judicial review benefits political parties and interest groups by providing an avenue to signal credible commitment.

Courts can also be used to empower elected branches against decentralized power (e.g., the states), entrenched interests, and cross-cutting coalitions within the dominant regime. (Whittington 2009) Courts can be useful in helping political parties overcome political gridlock by deciding unpopular issues that the political parties do not want to address (Whittington 2005; Frymer 2003). Courts can also be used by Congress to advance remedies through private civil litigation that are otherwise impossible to enact directly (Farhang 2010). In these cases, courts function as a legitimating body for both the political branches by enforcing tradeoffs, privileging the elected branches, and making unpopular decisions (Moustafa 2003; Shamir 1990).

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Extension – Politics Net Benefit (__)

(__) Courts shield controversial decisions Whittington, Professor of Politics at Princeton University, 2005(Keith E., ““Interpose Your Friendly Hand”: Political Supports for the Exercise of Judicial Review by the United States Supreme Court”, American Political Science Review, 99(4), November, p. 585, 591-592)

Political leaders in such a situation will have reason to support or, at minimum, tolerate the active exercise of judicial review. In the American context, the presidency is a particularly useful site for locating such behavior. The Constitution gives the president a powerful role in selecting and speaking to federal judges. As national party leaders, presidents and presidential candidates are both conscious of the fragmented nature of American political parties and sensitive to policy goals that will not be shared by all of the president’s putative partisan allies in Congress. We would expect political support for judicial review to make itself apparent in any of four fields of activity: (1) in the selection of “activist” judges, (2) in the encouragement of specific judicial action consistent with the political needs of coalition leaders, (3) in the congenial reception of judicial action after it has been taken , and (4) in the public expression of generalized support for judicial supremacy in the articulation of constitutional commitments.

Although it might sometimes be the case that judges and elected officials act in more-or-less explicit concert to shift the politically appropriate decisions into the judicial arena for resolution, it is also the case that judges might act independently of elected officials but nonetheless in ways that elected officials find congenial to their own interests and are willing and able to accommodate. Although Attorney General Richard Olney and perhaps President Grover Cleveland thought the 1894 federal income tax was politically unwise and socially unjust, they did not necessarily therefore think judicial intervention was appropriate in the case considered in more detail later (Eggert 1974, 101– 14). If a majority of the justices and Cleveland-allies in and around the administration had more serious doubts about the constitutionality of the tax, however, the White House would hardly feel aggrieved. We should be equally interested in how judges might exploit the political space open to them to render controversial decisions and in how elected officials might anticipate the utility of future acts of judicial review to their own interests

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***2NC/1NR Extensions***

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Solvency – General – Due Process (__)(__) The court can use due process grounds and habeas corpus review to successfully challenge restrictions on immigration Slocum, Assistant Professor of Law, Florida Coastal School of Law, 2007(Brian G, 2007, “Courts vs. the Political Branches: Immigration "Reform" and the Battle for the Future of Immigration Law”, The Georgetown Journal Of Law & Public Policy, 5(509), https://scholarlycommons.pacific.edu/cgi/viewcontent.cgi?article=1153&context=facultyarticles)

If the Court desired to reform the administrative adjudication system, it could focus on the administrative process and hold, for example, that some, or all, of the executive branch’s reforms are a denial of due process.80 FOOTNOTE 80 BEGINS… 80. Thus far, courts have been unwilling to make such rulings. See supra notes 42-43 and accompanying text. The Court could hold that the independence of the BIA and Immigration Judges from the Attorney General is required as a matter of Due Process, but such a decision would be quite bold . The closest the Court has come to such a decision was in United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954), when the Court held that once the Attorney General had by regulation delegated his authority over deportation cases to the BIA, he was prohibited from exercising that authority himself by dictating the outcome of a particular case. It would be a dramatic extension of the case for the Court to hold that the Attorney General is constitutionally prohibited from exercising control over the hiring or firing of Immigration Judges and members of the BIA FOOTNOTE 80 ENDS… At the same time, the Court could hold that the constitutionally required habeas corpus review includes claims that the Attorney General failed to exercise, or abused, his discretion.81 The abuse of discretion standard would allow courts to overturn decisions not to grant relief from removal where the Attorney General failed to exercise discretion that was given or failed to give a reasoned explanation for a decision.82

Both a decision striking down aspects of the administrative adjudication process on due process grounds and a decision requiring habeas corpus review of discretionary determinations would be consistent with the plenary power doctrine. The government does not receive the benefit of the doctrine in cases involving due process or a claim that a statute violates a structural provision of the Constitution rather than an amendment to the Constitution.83 In addition, such decisions would be relatively modest because they would allow Congress to decide substantive immigration issues, and would thus not interfere with the foreign affairs concerns underlying the plenary power doctrine.84

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Extension – General – Due Process Solvency (__)

(__) Judicial review on immigration is critical – this can secure protections for immigrants Chen, J.D. Candidate at Indiana University School of Law, 2000 (Sonia, Fall 2000, “The Illegal Immigration Reform and Immigrant Responsibility Act of 1996: Another Congressional Hurdle for the Courts”, Indiana Journal of Global Legal Studies, 8(1), https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1209&context=ijgls)

Given the current state of uncertainty surrounding the Fleuti doctrine and Congress' limitations on courts' power to review administrative decisions, the beginning of the twenty-first century marks a turning point. The question remains, will the U.S. Supreme Court dare to disavow the longstanding plenary power doctrine, and openly recognize constitutional protections for this category of noncitizens? Or will the echo of Yick Wo2 te resonate throughout the next century? The unfettered exercise of congressional powers to establish immigration laws could lead to disastrous consequences . To ensure that each branch retains its independence and ability to perform essential functions, the judiciary must act to preserve its Article II function of upholding the Constitution,2 "' and according to Erwin Chemerinsky, "Due process, of course, is at the very core of the judicial mission. 2 8 With the enactment of LIRIRA, Congress exceeded its essential powers by foreclosing all federal judicial review of immigration matters. As a result, the INS has the sole authority to determine the substantive and procedural rights of certain individuals residing in the United States.

To retain its central function, the U.S. Supreme Court should reject a strict construction of the statute and use the "clear statement" rule to retain judicial review of constitutional claims. The Court should further recognize the due process rights of returning permanent resident aliens by affirming the Fleuti doctrine, in light of the 1996 amendments, whether through subconstitutional norms or through "real" constitutional norms. The action or inaction of the federal judiciary during this juncture will be crucial to the shaping of immigration law in the twenty-first century.

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Solvency – Spillover -- General (__)

(__) Judicial action spills over – it causes compliance and can spur executive and legislative action Kawar, assistant professor in the Legal Studies Program at the University of Massachusetts, 2015(Leila, Amherst, 2015, Contesting Immigration Policy in Court: Legal Activism and Its Radiating Effects in the United States and France , Cambridge Studies in Law and Society, Kindle Edition, No Page Numbers Available)

In the decades since 1996, coordinated litigation that previously centered almost exclusively on class action cases brought before federal district courts has become more diversified. Test-case litigation has become more salient for national legal organizations, as the Supreme Court has signaled an increased willingness to examine agency interpretations of immigration statutes. In addition, as state legislatures have become involved in immigration policy making, this has presented a new terrain for legal activism on behalf of immigrants. At the same time, because of the jurisdiction-stripping provisions of the 1996 legislation, it has become more difficult to challenge some aspects of federal immigration policy making through class action litigation.

Nevertheless, the familiar and well-honed class action lawsuit continues to be fundamental to the enactment of U.S. immigrant rights legal activism. It is this modality of challenging immigration policy making that elicits expressions of resignation from U.S. government officials who face ongoing class action efforts. At the same time, with the prospect of another legislated legalization program around the corner, guaranteeing the power of courts to review actual practices of immigration officials implementing this program has become a rallying cause for immigrant rights legal activists and their supporters. 71 Particularly when contrasted with the avenues developed in the civil law system for contesting immigration policy in court, the continued availability and centrality of class action litigation becomes apparent and is perhaps the most striking difference between the two systems.

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Solvency – Spillover – Due Process (__)

(__) Court action grounded in due process spills over – it puts pressure on the legislative and executive branches to act Svirnovskiy 17, J.D., Northwestern Pritzker School of Law

(Simon Y., 2017, Spring 2017, “Finding a Right to Remain: Immigration, Deportation, and Due Process”, Northwestern Journal of Law & Social Policy, 12(3), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1154&context=njlsp)

Writing for the Court in Lawrence, 306 Justice Anthony Kennedy suggested that fundamental rights, or substantive due process rights, were not found just by looking at history and tradition, but that they could be discovered by reviewing more recent case law for an emerging awareness in the courts . In that vein, another way to understand what the Court has been doing in its immigration cases is to see it as gradually recognizing a quasiright to remain.

Leading immigration scholar Hiroshi Motomura has argued that “phantom norms” have “produce[d] results that are much more sympathetic to aliens than the results that would follow from the interpretation” of the INA alone in recent immigration cases.307 He conceptualizes these phantom norms as having “ enough gravitational force to exercise a pull on these other sources of law.”308 Professor Motomura traced a line of cases whose results, he argued, followed not from statutory interpretation or even the Court’s understanding of Congress’s plenary power309 on its own.310 He explained that a pattern emerged that first “allowed phantom constitutional norms to guide statutory interpretation by reading statutes in favor of aliens,” and second, “produced results that directly conflicted with those that the Court would have reached by applying the ‘real’ constitutional norms.”311 The right to remain is one of these phantom rights, and it formed through the combination of due process and stake theory—the understanding that “LPRs present for many years and with stronger ties to the United States are afforded [more] constitutional rights.” 312 This Section will lay out how the Court has begun to utilize the previously unidentified right to remain in its cases that have restricted detention during and after removal proceedings, limited removal, and come close to recognizing deportation as punishment.

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Solvency – Impacts Policymaking (__)

(__) Court action is the best response to immigration restrictions – it constrains the executive and legislative branches Kawar, assistant professor in the Legal Studies Program at the University of Massachusetts, 2015(Leila, Amherst, 2015, Contesting Immigration Policy in Court: Legal Activism and Its Radiating Effects in the United States and France , Cambridge Studies in Law and Society, Kindle Edition, No Page Numbers Available)

Finally, legal activism has generated important effects in the domain of immigration-related administrative policy making. Not only has regular engagement with sources of legal authority repositioned those responsible for initiating immigrant rights litigation, reinforcing their identity as elite technicians, but it has also left an imprint on the activities of their administrative interlocutors. By focusing attention on the pathologies of agency practices, immigration class action lawsuits reinforced the defensive disposition of administrative officials and inserted litigators and their activities into debates over immigration policy. We do not see this politicization of law in France, but legal activists’ repeated litigation of immigration issues has had its own set of indirect and unforeseen effects. In particular, as discussed in Chapter 6, ritualized consultation of the Conseil d’Etat has heightened the visibility of France’s highest administrative jurisdiction within immigration administration and has also provided it with a means to increase its jurisprudential authority in relation to other jurisdictions. In both countries, immigrant rights legal activism has contributed indirectly to the “juridification” of policy administration, in the sense that legal forms and legally generated dispositions are now more apparent within the sphere of immigration-related policy administration even as the direction of policy making on immigration matters remains restrictionist.

In sum, if policy makers today exhibit a determination to act on immigration matters, then the nature of that determination and the target of their actions are both in part constructed by the process of high-profile legal contestation. For instance, when scholars observe that “the modern view [since the 1980s] within the labor and civil rights communities is that workers’ rights and civil rights are indistinguishable” in the context of U.S. immigration debates (Gimpel and Edwards 1999, 306), they demonstrate the potency of the pluralist narrative of immigration politics that legal contestation had a hand in constructing. Similarly, if legal activist efforts have sustained themselves in both countries for more than four decades, then this reflects not only the ongoing need for immigrant rights to be defended but also the success of a project to define court-centered strategies as an appropriate response to immigration restrictionism. The multiple epistemic assemblages instantiated by the development of immigrant rights legal activism attest to the dynamic interrelationship between the legal and political spheres in this domain. A practice-based approach that is attentive to both the constructive and constructed nature of legal contestation helps us to more fully understand how law matters in the politics of immigration.

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Solvency – Intl Signaling Federal court action solve international signaling and modeling Banks, Associate Professor of Political Science Kent State University, 2008(Christopher, “Judicial Policymaking and the U.S. Constitutional Commitment to (Economic) Social (and Cultural) Rights of Education in Comparative Perspective”, http://citation.allacademic.com//meta/p_mla_apa_research_citation/2/6/8/6/2/pages268622/p268622-1.php)

Insofar as the U.S. Supreme Court may be perceived globally as resistant to guarantying social rights in education, the domestic political controversies over race-based initiatives and equality of funding in educational cases may be an impediment to recognizing analogous ESC rights in countries that may adjudicate them in the future. Although U.S. state governments have exerted more leadership in the area by putting more affirmative duties on legislatures to provide equal and adequate educational resources, the global community is unlikely to take as much notice of what is happening politically and legally in the fifty states. If a global awareness does not emerge, then any advancements of socio-economic rights in the area of education by U.S. state courts may have little impact on foreign jurisdictions, or international human rights courts, if and when they look for guidance in precedent. That prospect makes what the Supreme Court of the United States does in its cases even more important, especially if one plausibly concludes that the high court ought to be a leader in setting an example in regards to the advancement basic human rights, including the right to receive an equal education (Jheelan 2007; Aka 2006). In the end, political factors, including rival ideological judicial philosophies and role conceptions in U.S. courts, along with the inherent institutional constrains courts face in making social policy, are countervailing pressures that will endure, but must be overcome, so that there will be the universal recognition of a social right of education as envisioned by the ICESCR protocol.

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Solvency – Kritikal (__)

(__) Court action on immigration accomplishes revolutionary goals by exploiting inconsistences and redefining rights Venkatesh, PhD Candidate in Jurisprudence and Social Policy, University of California, Berkeley, 2016(Vasanthi, JD, MA (International Relations), MSc; Immigration and Refugee Law Practitioner., 2016, “Mobilizing Under “Illegality”: The Arizona Immigrant Rights Movement’s Engagement With The Law”, Harvard Latino Law Review, Vol. 19, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2839592)

However, despite the pessimism in court-based legal reform, legal action can still provide grist for organizing and mobilization as the immigrant rights advocacy has shown. Legal forums can still function as a place to mitigate the worst excesses of the political branches. Moreover, while the indeterminacy and inconsistency can be frustrating as it prevents a clear-cut articulation of rights, the very indeterminacy can also provide a space for contesting the meaning of rights. Social movement actors can capitalize on doctrinal indeterminacy and historical inconsistencies of application to argue for progressive meanings of the law.88 Indeed, the success of the contestation is not as significant as its ability to raise rights consciousness, mobilize people, and produce public debate, which can arguably create more changes in the undocumented communities than what even a legal decision can produce.89

The Constitution requires us to ask at all points in history about who constitutes “the People.”90 From time to time, the definition has changed from including certain groups (including undocumented noncitizens) and excluding others, such as racialized citizens.91 Scholars argue that all noncitizens, even legal immigrants, are considered to be on “probation,” and can be removed once they are no longer considered “desirable” in the economy or social community.92 Other scholars, however, argue that this characterization of non-citizens as being in perpetual probation does not have historical continuity. There have been times in the past, when immigrants were treated as “Americans-in-Waiting,” who would have most of the rights of citizenship as they transitioned in their status.93

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Solvency – Lawful Permanent Residents (__)

(__) The Court can protect lawful permanent residents from deportation on due process grounds – this is justified by a long tradition of applying due process to non-citizensSvirnovskiy 17, J.D., Northwestern Pritzker School of Law

(Simon Y., 2017, Spring 2017, “Finding a Right to Remain: Immigration, Deportation, and Due Process”, Northwestern Journal of Law & Social Policy, 12(3), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1154&context=njlsp)

Although laches is the only remedy currently available that could help LPRs, there is hope on the horizon. In Part II, this Article identified two ethical challenges in immigration— it is now easier to deport people than before, and it is taking longer to do so.278 Part III offered a partial response to the second problem by explaining how the doctrine of laches could be applied against the federal government’s enforcement of long-delayed removal actions. In Part IV, this Article suggests a possible resolution of both major problems that lawful permanent residents face by using a new substantive due process right—the right to remain. The right to remain not only would preclude the government from seeking removal years after a removable offense, but also would provide many other protections for LPRs to protect against unjust deportations for minor or noncriminal offenses.

This Part opens by explaining that Due Process rights are not, and for over a hundred years have not been, reserved strictly for U.S. citizens. As a result, substantive due process rights could and should be made available to LPRs. Next, it formally introduces the right to remain as a substantive due process right. 279 It reviews recent case law to show that the recognition of this right has been building through an emerging awareness of it in the courts,280 both in cases involving removal and in those focused solely on detention. Third, it also attempts to ground the right in our shared national history and traditions.281 This Part will end by discussing implications of a right to remain and calling upon immigration scholars to help fully identify and develop it as a substantive due process right, and on practitioners to further test it in courts. The right to remain can then combat the inequities LPRs currently face under our immigration system when they are held to a wire-thin standard of conduct and then face those pressures for an uncertain and currently unlimited amount of time.

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Answers To: Permutation Do The Counterplan 1/3 (__)

Permutation do the counterplan is severance: (__) Severs “reduce restrictions” - the court reviews – it cannot directly reduce restrictions because of the plenary power – but it clears the way for reducing restrictions Weissbrodt, Professor of Law at the University of Minnesota, 2004

(David, Laura Danielson, 2004, “Chapter 2: The Source And Scope Of The Federal Power To Regulate Immigration And Naturalization”, The Immigration Nutshell, http://hrlibrary.umn.edu/immigrationlaw/chapter2.html)

§ 2-3 THE FUNCTIONS OF THE THREE BRANCHES OF THE FEDERAL GOVERNMENT IN REGULATING IMMIGRATION¶ § 2-3.1 The Legislature¶ The plenary and unqualified power of the federal government to regulate immigration , naturalization, and related foreign policy belongs to Congress . The possible international consequences of decisions in this area have made the federal judiciary extremely reluctant to substitute its judgment for the legislature's. Justice Jackson articulated the Court's position in Harisiades v. Shaughnessy (Sup.Ct.1952): "[A]ny policy towards aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference." Subsequent decisions echo this sentiment. Since the judiciary poses no obstacle, Congress has been historically free to "exclude aliens altogether or prescribe the terms and conditions upon which they may enter and stay in this country." Lapina v. Williams (Sup.Ct.1914). For example, Congress exercised its plenary authority in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) that facilitated the removal of non-citizens. IIRIRA appears to show that the legislative branch wields the full measure of the federal plenary power over immigration. In light of two 2001 Supreme Court decisions, some scholars have questioned whether the plenary power may have its limits, but in each case the Court recognized the potential for legislative plenary power.¶ ¶ In Nguyen v. INS (Sup.Ct.2001), the Court upheld INA § 309(a)’s distinction between illegitimate children of U.S. citizen fathers and mothers, but rather than a weak rational basis review, the Court applied the same intermediate scrutiny standard it would apply for ordinary gender-based classifications. This appears to be a step toward limiting the plenary power, but the Court noted that it did not need to address the “wide deference accorded to Congress in the exercise of its immigration and naturalization power” because it held that no equal protection violation had occurred. Similarly in Zadvydas v. Davis (Sup.Ct.2001), the Court held that a reasonable time limitation on post-removal detention must be inferred because “a statute permitting indefinite detention would raise a serious constitutional problem.” In reaching this holding, the Court described the legislature’s plenary power as being “subject to important constitutional limitations.” Despite these constitutional problems, the Court stated that had it found clear Congressional intent to grant the Attorney General the power to indefinitely detain non-citizens ordered removed, it would have had to uphold such detention.¶ ¶ § 2-3.2 The Judiciary¶ Historically, the Supreme Court has taken a virtual “hands off” approach to immigration law, but it has stopped short of

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abdicating all responsibility. The Court has reserved a narrow ground for review that is worth examining for hints of a possible future trend of limitation on Congress’s plenary power.¶ ¶ a. Decisions Relating to Exclusion (now "Inadmissibility")¶ ¶ Non-citizens who are outside the national boundaries of the United States have no constitutional rights and as a practical matter have absolutely no basis for challenging their exclusion (now "inadmissibility") from this country. Although the Supreme Court has not quite deemed exclusion cases non?justiciable under the political question doctrine, the extreme degree of deference the Court has given to legislative determinations on this issue makes the ground of review so narrow as to be practically nonexistent. Indeed, earlier cases show a complete "hands off" attitude by the courts. Later cases refer to a narrow ground of review.¶ ¶ ¶ Fiallo v. Bell (Sup.Ct.1977) illustrates the Court's ginger approach to exclusion (now "inadmissibility") cases. A federal statute governing immigration preferences made it more difficult for illegitimate children and fathers to be reunited in this country than illegitimate children and mothers. See § 5C2.1, infra. U.S. citizens and resident aliens disadvantaged by the statute challenged it on equal protection grounds. In a footnote, Justice Blackmun, for the majority, explicitly rejected the government's contention that admission of non-citizens is not an appropriate subject for review, "our cases reflect acceptance of limited judicial responsibility under the Constitution even with respect to the power of Congress to regulate the admission and exclusion of aliens...." Having once established the reviewability of this type of case, however, Blackmun applied a standard of review that is, as dissenter Justice Marshall noted, "toothless." The Court acknowledged that the statute discriminates on the basis of sex and that the fathers have no opportunity to prove a close relationship in order to overcome the statutory presumption. Blackmun flatly stated, "[T]he decision nonetheless remains one solely for the responsibility of the Congress and wholly outside the power of this Court to control." After the Court's decision, Congress did resolve the problem raised in this case by providing that illegitimate children can obtain the same immigration benefits from the natural father as from the natural mother "if the father has or had a bona fide parent?child relationship." INA § 101(b)(1)(D).¶ ¶ Federal courts have since reserved a narrow ground of review in a few exclusion (now “inadmissibility”) cases: Hill v. INS (9th Cir.1983) (although the power of Congress is plenary, exclusion of homosexuals is improper without a medical certificate of psychopathic personality, sexual deviation, or mental defect); Allende v. Shultz (1st Cir.1988) (government impermissibly denied visa to widow of former Chilean president invited to speak in U.S. on the basis of general harm to foreign policy created by her presence); Abourezk v. Reagan (D.C.Cir.1986) (when non-citizen is a member of Communist or anarchist organization, government may exclude non-citizen based on projected engagement in activities prejudicial to public interest, only if reason for threat to public interest is independent of membership in proscribed organization); and Harvard Law School Forum v. Shultz (D.Mass. vacated without opinion 1st Cir.1986) (Law School forum entitled to preliminary injunction prohibiting Secretary of State from refusing travel permission to a Palestine Liberation Organization member without a "facially legitimate and bona fide reason" for the INS decision). These court decisions presaged legislative actions in 1990 that removed restrictions on the immigration of homosexuals and eased issuance of nonimmigrant visas to members of the Communist Party and other controversial visitors.

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Answers To: Permutation Do the Counterplan 2/3 (__) They also sever “The” and “USFG”“The” means whole Merriam Websters, No Date (http://www.merriam-webster.com/dictionary/the)

4—used as a function word before a noun or a substantivized adjective to indicate reference to a group as a whole <the elite>

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Answers To: Permutation Do the Counterplan 3/3

(__) “The” in front of the United States Federal Government means that all 3 branches have to actBlacks Law ‘90 (p. 695)In the United States, government consists of the executive, legislative, and judicial branches in addition to administrative agencies. In a broader sense, includes the federal government and all its agencies and bureaus, state and county governments, and city and township governments.

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Answers To: Permutation Do Both 1/3 Permutation do both fails: (__)

(__) Court rulings aren’t announced until June but the plan is immediate – this means the judiciary isn’t leading the way which links to the net benefit Ward, Attorney at Ward Law Office, 2010

(Jake, “Bilski Decision Tomorrow (Thursday, June 17th)? Maybe?” Anticipate This! (Patent and Trademark Law Blog), June 17, 2010, http://anticipatethis.wordpress.com/2010/06/16/bilski-decision-tomorrow-thursday-june-17th-maybe/)

In mid-May until the end of June, the Supreme Court of the United States (SCOTUS) releases orders and opinions. SCOTUS has yet to issue a number of decisions this term, however, and it is rapidly moving toward summer recess. Most notable from a patent law perspective is that the decision in Bilski v. Kappos, which was argued in November 2009, has yet to be decided.

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Answers To: Permutation Do Both 2/3 (__) Mootness – enactment of the plan first would remove the basis for Court action Yeh, Legislative Attorney in the American Law Division, 2005 (Brian, “Mootness: An Explanation of the Justiciability Doctrine” http://congressionalresearch.com/RS22599/document.php?study=Mootness+An+Explanation+of+the+Justiciability+Doctrine)

A case pending before a federal court may at some point in the litigation process lose an element of justiciability and become “moot.” Mootness may occur when a controversy initially existing at the time the lawsuit was filed is no longer “live” due to a change in the law or in the status of the parties involved, or due to an act of one of the parties that dissolves the dispute. When a federal court deems a case to be moot, the court no longer has the power to entertain the legal claims and must dismiss the complaint . However, the U.S. Supreme Court over time has developed several exceptions to the mootness doctrine. This report provides a general overview of the doctrine of “mootness,” as the principle is understood and used by federal courts to decide whether to dismiss certain actions for lack of jurisdiction.

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Answers To: Permutation Do Both 3/3 (__) Credibility of a binding legal precedent – if Congress enacts the plan first instead of being forced to by the Courts it diminishes the importance of the court ruling Alam, Professor of Law at the University of Chitta gong, Bangladesh, 2004

(M. Shah, , Enforcement of International Human Rights by Domestic Courts in the United States, Annual Survey of International & Comparative Law, Volume 10, Issue 1, Article 3, http://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1081&context=annlsurvey)

On the other hand, Professor Bayefsky and Fitzpatrick expressing skepticism about the above prospect wrote: Those courts which do make use of international law sources as an aid to interpretation usually (a) do not tend to justify its introduction by references to the principle of consistency with international obligations, nor (b) concern themselves with establish ing the binding quality of the source by proving that it is truly customary i nternational law . This tendency impede s the development of clear and consistent principles concerning the interpretive relevance and importance of customary human rights norms in U.S. law.l1 Paul L. Hoffman and Nadime Strossen regret that while the Supreme Court in Thompson V. Oklahoma78 in 1988 invoked international human rights standards to conclude that juvenile death penalty constituted cruel and unusual punishment in violation of Eighth Amendment, and held that a death sentence imposed on a offender who was fifteen years old at the time of committing the offence violated the Eighth Amendment, the same court later in Stanford V. Kentucky79 (1989) held different opinion to conclude that the Eight Amendment does not bar the imposition of the death penalty on someone who was 16 or 17 years old at the time of committing the crime in question. 80

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Answers To: Permutation Do the Counterplan and Plan as Enforcement

(__)

(__) The permutation to use the plan to enforce the counterplan adds a time-frame element since it sequences the plan after the counterplan – that’s intrinsic which is a voting issue and should be rejected – it justifies adding anything to the plan’s process or substance to get out of disadvantages

(__) Permutations that add timeframe are uniquely bad – they moot the value of time-sensitive research and education and let the aff choose when the plan happens based on convenience

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Answers To: Plenary Power Disadvantage – Nonunique (__)

(__) Plenary powers gutted now – recent immigration cases expand judicial role LeBuhn, JD Candidate at Northwestern University Law School, 2017(Mac, “The Normalization of Immigration Law”, Northwestern Journal of Human Rights, 15(1), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1183&context=njihr)

Recent immigration case law confirms that immigration exceptionalism is indeed giving way to an increased willingness to find such issues justiciable. The Court confronted immigration exceptionalism by reaching out to address issues that the blunt language of Knauff and Mezei would otherwise forbid. In Kleindienst v. Mandel, 200 the Court considered a suit brought by citizenplaintiffs alleging a violation of their First Amendment rights based upon the executive’s exclusion of an alien.201 The Court held that the executive needed to marshal a “facially legitimate and bona fide reason” for excluding an alien in order to avoid such a challenge. While hardly a dramatic step, Kleindienst normalizes immigration law by imposing a standard for whether judicial review applies; to be sure, a low standard, but it marked a new willingness to engage questions arising from immigration law.202

Likewise, in Fiallo v. Bell, 203 the Supreme Court challenged provisions of the federal immigration statute that denied preferential immigration status to the illegitimate children of American citizen-fathers, as opposed to the illegitimate children of American citizen-mothers.204 While the Court affirmed the statutory language, it characterized the judicial role more broadly than early precedents.205 Thus, the Court enjoyed a “limited scope of judicial inquiry into immigration legislation,” rather than no review at all.206 The Court also expressly rejected the government’s argument that immigration was not subject to judicial review.207 Justice Marshall, writing in dissent, noted that he was “pleased” to see the Court depart from “the old immigration cases that reflect an absolute ‘hands-off’ approach by this Court.”208

Like other areas of foreign affairs law, immigration law is hardly a “normal” body of law with respect to non-justiciability. However, in narrow and specific ways, it is slowly normalizing: the Supreme Court is increasingly willing to contest those “old immigration cases”209 that foreclosed judicial review.

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Answers To: Plenary Power Disadvantage – Plenary Power Resilient

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(__) Plenary power is resilient – single cases don’t cause its demiseKagan, Associate Professor of Law at the University of Nevada Las Vegas, 2015(Michael, 2015, “Plenary Power is Dead! Long Live Plenary Power!”, Michigan Law Review, http://michiganlawreview.org/plenary-power-is-dead/)

A sober observer would point out that immigration law scholars have been predicting the imminent demise of the plenary power doctrine for at least three decades.[50] In 1995, Legomsky wrote an essay reassessing his own predictions for the rapid and dramatic demise of the plenary power. He wrote:

I expected the dam to burst with a sudden, dramatic announcement that, henceforth, immigration cases would be treated like any other cases. . . . Obviously, that has not happened. . . . [However], a different scenario seems to be in progress already. Under this revised scenario, the lower courts and the Supreme Court allow the plenary power doctrine to wear away by attrition. Little by little, exceptions and qualifications will reduce the doctrine to a shadow of its former self without an express overruling of contrary precedent.[51]

Twenty years after that was written, we can note significant progress in this war of attrition. On questions of procedural due process, plenary power is indeed a shadow of its former self. The Court’s acknowledgement that the stakes in a deportation case are at least as high as the stakes in a criminal case, coupled with the Court’s recognition in Zadvydas that noncitizens have a liberty interest in avoiding detention, provide ample foundation for a top-to-bottom reassessment of whether the routine procedures of immigration enforcement meet due process standards. Recently, lower courts have shown increasing discomfort with the routine ways in which noncitizens are arrested and detained without an independent finding of probable cause.[52] The Court of Appeals for the Ninth Circuit has extended Zadvydas to establish a right to a bond hearing for lengthy prehearing detention of people facing removal, even when the Immigration and Nationality Act imposes mandatory detention.[53] In Din, six Justices were willing to assume that even a noncitizen outside the country might have a claim to at least some due process.

We still must wait to see if the Court will push this due process revolution to its logical conclusion, and fully treat immigration cases for purposes of procedural due process like any other matter with similarly high stakes. But even if the Court reaches that remarkable threshold regarding questions of procedure, plenary power will remain intact with regard to the substance of immigration law. In immigration, Congress remains free to discriminate by nationality and by political opinion. Our seminal plenary power case—the Chinese Exclusion Case—is known by its explicitly racist title. Not only has it never been repudiated by the Court, we have no case law suggesting that the original Chinese Exclusion Act is constitutionally problematic. To reach such a conclusion, the Court would have to be willing to apply Equal Protection analysis to the substance of immigration law, and that would potentially raise questions about the validity of a great deal of the Immigration and Nationality Act.

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Answers To: Plenary Power – Doesn’t Impact Natl Security (__)

(__) No impact on crisis control – cases like the plan can be distinguished from giving the courts broad power over issues of national security Fields, Professor Of Legal Writing At The University Of San Diego School Of Law, 2017(Shawn E., 2017, “The Unreviewable Executive? National Security And The Limits Of Plenary Power”, Tennessee Law Review, Https://Tennesseelawreviewdotcom.Files.Wordpress.Com/2018/02/84-3-7.Pdf)

“The plenary power doctrine has the virtue of being a broad theory capable of guiding the resolution of all of immigration cases, even if it resolves them in problematic ways.”200 But a blunt tool cannot be justified simply because it is easy to use. A normative justification for such a broad, powerfully influential doctrine is wanted, and yet one remains elusive 128 years after its creation. The various rationales commonly invoked—inherent sovereign powers to control territorial borders, lack of judicial expertise in foreign affairs, the need for the nation to “ speak with one voice ” on the world stage—fail to adequately explain why courts must treat all run-of-the-mill familial immigration cases identically to cases of imminent national threat.

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Affirmative

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2AC – Agent Counterplans Bad (__)

(__) Agent CPs are a Voting Issue – a) Topic education – agency debates are not grounded in the resolutionb) Aff ground – moots the 1AC and makes it impossible to garner offense – they open the floodgates for an infinite number of unpredictable counterplansc) Read the net benefit as a DA – solves their offense

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2AC – Permutation Do The CP – “Reduce Restrictions” (__)

(__)Permutation do the counterplan – it’s normal means and predictable for courts to reduce restrictions Cole, Professor Emeritus of Political Science at the University of Connecticut, 1975(George F., Christopher E. Smith, Christina DeJong, 1975, “Chapter 9: Courts and Pretrial Processes”, The American System of Criminal Justice, p. 401)

By contrast, elections for seats on state supreme courts frequently receive statewide media attention (M. Hall and Bonneau, 2013). Because of the impor-tance of state supreme courts as policy-making institutions, political parties and interest groups often devote substantial resources to the election campaigns of their preferred candidates (Brandenburg and Berg, 2012; Bonneau, 2004). When organized interests contribute tens of thousands of dollars to judicial campaigns, questions sometimes arise about whether the successful candidates who received those contributions will favor the interests of their donors when they begin to decide court cases (Weissman, 2015). There are also questions about the significance of out-of-state influence, such as when national interest groups contributed substantial amounts of money in 2010 to remove from of-fice three justices on the Iowa Supreme Court who backed same-sex marriage (Mansker and Devins, 2011). As the U.S. Supreme Court has issued rulings that reduce restrictions on campaign spending by interest groups and politi-cal organizations, there has been an apparent increase in out-of-state groups spending money on advertising to influence judicial elections (Wolf, 2014).

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Extension --- Courts Can “Reduce Restrictions” (__)

(__) It’s grounded in the literature – courts can reduce restrictions Beck, Attorney at Larkin, Hoffman, Daly & Lindgren, 2003(Genevieve A., 2003, “Iowa”, Covenants Against Competition in Franchise Agreements, Second Edition, p 161)

Since Ehlers, however, Iowa courts have not been reluctant to modify or reduce restric-tions in a covenant found to be overbroad. In Casey's, the Iowa Supreme Court upheld the trial court's modification of the parties' noncompetition agreement by reducing the geographic zone of protection from "any place other than [the franchise] premises" to a zone of three miles around all existing Casey's franchises. Similarly, in Phone Connection, supra, the Iowa Court of Appeals upheld the trial court's modification of a noncompetition agreement by reducing the geographical territory from all of Minnesota and Iowa to only those counties in which The Phone Connection had established its business and reducing the time restriction from five years to two years.

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Answers To: Permutation Do the CP Severs “The” (__)

(__) “The” in front of USfg means it’s a proper noun or singular entity Merriam-Webster no date, “The”, https://www.merriam-webster.com/dictionary/the

h —used as a function word before a proper name (as of a ship or a well-known building) -the Mayflower

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2AC – Permutation Do Both (__)

(__) Permutation do both – congress will look like it is complying with the court’s ruling

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Answers To: CP Announced in June

(__)

(__) Decisions are announced throughout the term---fiat should mean the counterplan is announced immediately Tarlton Law Library, at the Center for Legal Research University of Texas School of Law, 2011

(“U.S. Supreme Court,” online: http://tarltonguides.law.utexas.edu/content.php?pid=112293&sid=1026170)

As set by the Court's calendar, the Court's term officially begins on the first Monday in October, though in modern practice the justices meet in late September to decide and announce new cases to be heard. From this first Monday to mid-April, the Court alternates between two week periods for oral arguments and two week recesses. During the two week oral argument periods, the Court also holds conferences to discuss certiorari petitions and orally argued cases. The Court's consideration of petitions for writs of certiorari starts with a "discuss list." If a case does not make the list, the Court denies certiorari without discussion or a vote at conference. For those cases that make the list, Supreme Court practice has established a rule of four allowing a minority of four out of nine justices to grant certiorari. (For scheduling, see the Court's Case Distribution Schedule.) The Court announces its action the Mondays after conference. It is also at these conferences that, within two weeks of a case's oral argument , a justice is assigned to write its majority opinion . Opinions are then announced throughout the term, predominantly in the spring and summer, typically on a Monday, Tuesday, or Wednesday. After the Court has taken action on the last case argued before it that term, usually late June or early July, it takes a summer recess.

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2AC – Courts Fail – Laundry List (__)

(__) Courts fail – delays and sloppy decisions undermine credibility Legomsky, Professor at the Washington University School of Law, 2010(Stephen H., May 2010, “Restructuring Immigration Adjudication”, Duke Law Journal, Vol. 59, No. 8, pp. 1635-1721, accessed via JSTOR)

Those words were written in 1981 by former congressional counsel Peter Levinson. As this Section will demonstrate, the problems have only grown. They have manifested themselves in dubious and inconsistent outcomes; a lack of confidence in the results felt by parties, reviewing courts, and commentators; an extraordinary surge of requests for judicial review of the final administrative decisions; substantial duplication of effort; and lengthy delays.

The generic goals of adjudication are a logical starting point for gauging the effectiveness of the immigration adjudication system. Roger Cramton has posited," and others have refined:22 three such goals—accuracy, efficiency, and acceptability. I have suggested a fourth goal—consistency—that overlaps substantially but not completely with the other three." Measured against those goals, how does the immigration adjudication system fare?

At a minimum, accuracy encompasses ultimate results that the evidence and the relevant law reasonably support. Admittedly, accuracy is hard to assess objectively. Errors are difficult to identify when, as is true in removal cases, decisions frequently require subjective judgments. Still, the unprecedented scathing criticisms that so many U.S. courts of appeals have leveled at EOIR are disconcerting .' Lending both credibility and relevance to these condemnations are two striking realities. First, the attacks come from many different judges with diverse political leanings. Second, the criticisms extend beyond the particular decisions under review to broad-based, systemic complaints about patterns of sloppy, poorly reasoned decisions that the courts of appeals encounter day after day.

These cases are likely only the tip of the iceberg , because they include only those that reach the courts of appeals. The vast majority of removal orders never get to that point,' sometimes because the individual has no convincing ground for appeal, but on other occasions because the statute bars judicial review, the person lacks the resources to go to court, or the person has no access to counsel and never discovers the right to appeal. In all those instances, any errors that the courts might have corrected in appealed cases go unnoticed.

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2AC – Courts Fail – Rights Insufficient (__)

(__) Rights are an insufficient remedy – can’t spur sufficient change and states fill in with restrictive policies Rubenstein, Professor of Law at the Washburn University School of Law, 2017(David S., Pratheepan Gulasekaram, Professor of Law, Santa Clara University School of Law, 2017, Immigration Exceptionalism, 111(3), Northwestern University Law Review, https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1272&context=nulr)

On first take, many might happily accept this package deal. But, on further reflection, the calculation becomes more fraught. Rights normalization alone would not remedy some of the deep and enduring pathologies of today’s immigration system. Even with rights normalization, the United States would still have an estimated undocumented population of more than 11 million,261 an expansive list of removal statutes that would withstand constitutional challenge under mainstream standards,262 and restrictionist states ready and willing to pick up the federal government’s enforcement slack.263 These are the very problems that federalism and separation of powers exceptionalism could help mitigate under certain political conditions, but could not in a regime of across-the-board normalization. Absent special separation of powers doctrines, for example, the Executive may be deprived of constitutional authority to grant categorical reprieves like DAPA and DACA. Meanwhile, absent federalism exceptionalism, state and local jurisdictions may have greater license to pursue restrictionist agendas.264

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2AC – Courts Fail – Signaling U.S. courts don’t get modeled – the influence of the US judiciary is decreasing Liptak, the Supreme Court correspondent for The New York Times, 2012(Adam, 'We the People’ Loses Appeal With People Around the World, www.nytimes.com/2012/02/07/us/we-the-people-loses-appeal-with-people-around-the-world.html?pagewanted=all&_r=0#h[])

The Constitution’s waning global stature is consistent with the diminished influence of the Supreme Court , which “is losing the central role it once had among courts in modern democracies,” Aharon Barak, then the president of the Supreme Court of Israel, wrote in The Harvard Law Review in 2002.

Many foreign judges say they have become less likely to cite decisions of the United States Supreme Court, in part because of what they consider its parochialism.

“America is in danger, I think, of becoming something of a legal backwater,” Justice Michael Kirby of the High Court of Australia said in a 2001 interview. He said that he looked instead to India, South Africa and New Zealand.

Mr. Barak, for his part, identified a new constitutional superpower: “Canadian law,” he wrote, “serves as a source of inspiration for many countries around the world.” The new study also suggests that the Canadian Charter of Rights and Freedoms, adopted in 1982, may now be more influential than its American counterpart.

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Answers To: Politics Net Benefit Courts link to politics – Trump would get the blame Helmke, Associate Professor of Political Science at the University of Rochester, 2009(Gretchen, Frances Rosenbluth, professor of political science, Yale University, “Regimes and the Rule of Law: Judicial Independence in Comparative Perspective,” Annual Review of Political ScienceVol. 12: 345-366 Volume publication date June 2009, EBSCO)

A second set of explanations for judicial independence assumes that legislators make a deliberate choice to delegate judicial authority to courts , building intentional institutional walls against political intervention in judicial decisions. For these models, legislatures can create judicial independence by means of a supermajority-protected set of rules ensuring long judicial tenure, wide jurisdiction, budgetary autonomy, and the like. Delegative models supply a range of possible motivations for why politicians may want to restrict themselves in this way. Landes & Posner (1975) suggest that legislators have an interest to create an independent judiciary that can enforce the deals struck by enacting legislatures, thereby increasing the value of campaign contributions that legislators can extract from contributors on whose behalf they made those deals. The judiciary solves politicians' time inconsistency problem, namely that their short-run interest to sell new deals to the highest bidder undermines the price they are able to get for these deals in the longer run. This model implausibly denies the possibility that courts , like legislators, are strategic actors . Unless we can be sure that courts will rule in support of (their understanding of) the enacting legislation rather than in strategic anticipation of the preferences of the incumbent legislature, this argument breaks down. Judges may instead try to achieve outcomes as close as possible to their own preferences by taking into account the possibility that the incumbent legislature can write new legislation if it is sufficiently unhappy with the court's ruling. If this is true, and we see no reason why it should not be, the court's value in prolonging the life of legislation—and hence its value for legislators extracting rents—is significantly hampered. Another delegative account of judicial insulation points to politicians' desire to duck blame for unpopular policies. Graber (1993), Salzberger (1993), Holmes (1996), and Wittington (1999) argue that a legislative majority might want to delegate politically divisive issues to the court, echoing Fiorina's (1981) blame-avoidance explanation for why politicians might want to delegate to bureaucrats. But it is not clear that it is possible for legislatures to tie their hands in this way , both because of the problem with cooperative delegation arguments we have already discussed and because politically strategic courts may have an interest in throwing the matter back rather provoking public wrath themselves. [Stephenson (2004) articulates an alternative critique of the blame-avoidance argument.] In Hungary, for example, the courts deliberately dodge issues such as abortion that th e y consider to be “political questions” (Pogany 1993). U.S. courts also display a tendency to keep one or two steps behind state and federal legislatures on contentious issues such as abortion or gay rights. Harvey & Friedman (2006) argue that the Supreme Court is systematically more likely to deny certiorari to cases on which the political branches are likely to have the votes to oppose the court. In addition, we expect, courts protect their future range of maneuver by staying within the broad bands of public support.

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Answers To: Rule of Law Net Benefit 1/2 (__)(__) No rule of law impacts – it’s meaningless especially in the age of Trump O’Hehir, Executive Editor of Salon, 2018(Andrew, 1/27/2018, “Trump, Mueller and the “rule of law”: Defending an ideal we don’t understand”, Salon, https://www.salon.com/2018/01/27/trump-mueller-and-the-rule-of-law-defending-an-ideal-we-dont-understand/)

Amid the cascading, metastasizing disaster of Donald Trump’s presidency, it can feel reassuring to grab hold of whatever coherent institutions or conceptions we can find: the Democratic Party, the midterm elections, the Russia investigation, Robert Mueller, the FBI, the norms of democracy, the rule of law. But Trump is like the court jester who accidentally became king: He is clearly dangerous, but he has done us a perverse service by revealing that none of those things is quite as solid or coherent as it appears to be.¶ Many of the contradictions of this historical moment are bound up in the notion of the “rule of law,” a poorly defined principle that plays a central role in our national discourse at the moment. Almost everyone in American society claims to believe in the rule of law, but in roughly the same way most American Protestants believe in God: as a convenient fiction hauled out to support a preexisting agenda. It’s not at all clear that Americans still possess any shared ideal of what the law is or how it works. If we did, Merrick Garland would be on the Supreme Court right now. It seems ludicrous to claim that anyone, of any party or any ideology, actually sees the law as a neutral or abstract force rather than a naked instrument of power.¶ President Trump’s reported attempt to fire Mueller last June — or to fire as many Justice Department officials as necessary, Richard Nixon-style, to shut down the Russia investigation — presented an obvious challenge to the rule of law. Indeed, Trump’s entire presidency has been devoted to placing himself above the law, or rather against the law, and depicting it as a vindictive and illegitimate force wielded by his political enemies. Whether you want to call that a conspiracy to obstruct justice or making America great again, it’s far more consequential (and more destabilizing) than whatever did or didn’t happen between his 2016 campaign and the Russians.¶ Nothing has traditionally been more central to Americans’ quasi-religious understanding of their democracy than the importance of the rule of law, which can be broadly defined as the notion that laws should govern people rather than the other way around. (Spoiler alert: There’s an enormous paradox baked into that from the beginning, since it’s always people with power who make the laws in the first place.) That was essentially the basis for the constitutional separation of powers laid out by Thomas Jefferson and James Madison, which was meant to ensure that the law itself would remain independent of those who enacted it, enforced it or interpreted it.

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Answers To: Rule of Law Net Benefit 2/2 (__) No rule of law impacts --- alt causes prove law is a selectively applied Turley, Professor of Public Interest Law at George Washington University, 2010(Jonathan, member of USA TODAY's Board of Contributors, 6/14/10, “Do laws even matter today?,” http://usatoday30.usatoday.com/news/opinion/forum/2010-06-15-column15_ST_N.htm)

Though I am a critic of the Arizona law, I do not view its supporters in such one-dimensional terms. Indeed, I do not view the public response in purely immigration terms. Whether it is illegal immigration or the mortgage crisis or corporate bailouts, there seems to be a growing sense among many citizens that they are expected to play by the rules while others are exempt.¶ With polls showing about 60% of people supporting the Arizona law and almost half supporting similar laws in their states, it is implausible to suggest that all these people are racists or extremists — let alone fascists. Notably, a majority of Americans also opposed the bank bailouts and mortgage forgiveness. In each of these controversies, there is a sense that the government was stepping in to protect people from the consequences of their actions.¶ In the mortgage crisis, tens of thousands of people accepted high-risk, low-interest loans while other citizens either declined to buy homes or agreed to higher monthly payments to avoid such deals. When Congress intervened with mortgage relief, some of those who had acted responsibly wondered whether they acted stupidly by rejecting low rates and later federal support.¶ Bailouts and immigration¶ Then there were the corporate bailouts. For citizens to secure a loan, they have to meet exacting terms and disclosures. Yet, when banks and firms concealed risks or engaged in financial wrongdoing, Congress bailed them out and allowed their executives to reap fat bonuses. The laws on fraud and deceptive practices simply did not seem to apply to them . Just as several companies were declared "too big to fail," many of their executives appeared too big to lose money — unlike the millions of citizens burned by their business practices.¶ Those prior controversies coalesced with the immigration debate. The last time Congress granted amnesty to illegal immigrants was 1986 — and it was criticized at the time for rewarding those who had evaded deportation. Complaints over the lack of federal enforcement had been percolating for years but exploded along Arizona's long desert border. When a law mandated state enforcement of federal laws, the Obama administration moved to block it.¶ Indeed, high-ranking Obama officials such as John Morton, head of the Immigration and Customs Enforcement, have suggested that they might refuse to deport those arrested under the Arizona law. While we continue to tell millions around the world that they must wait for years to immigrate legally, Congress and the White House are considering a new amnesty proposal to benefit an additional 11 million illegal immigrants.¶ In each of these areas, the perception is that the law says one thing but actually means different things for different people. It is a dangerous perception, and it is not entirely unfounded. Such double-standards have become common as Congress and presidents seek to avoid unpopular legal problems.¶ •Torture: While acknowledging that waterboarding is torture and that torture violates domestic and international law, President Obama and members of Congress have barred any investigation or prosecution of those crimes.¶ •Pollution: While citizens are subject to pay for the full damage they cause to their neighbors and are routinely fined for their

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environmental damage for everything from dumping in rivers to leaf burning, Congress capped the liability for massive corporations such as BP and Exxon at a ridiculous $75 million. Though BP is likely to spend much more in litigation (particularly if prosecuted criminally), the current law requires citizens to pay the full cost of their environmental damage while capping the costs for companies producing massive destruction.¶ •Privacy: When the telecommunications companies found themselves on the losing end of citizen suits over the violation of privacy laws, Congress (including then-Sen. Obama) and President Bush simply changed the law to legislatively kill the citizen suits and protect the companies.¶ An arbitrary system¶ The message across these areas is troubling. To paraphrase Animal Farm, all people are equal, but some people are more equal than others.¶ A legal system cannot demand the faith and fealty of the governed when rules are seen as arbitrary and deceptive. Our leaders have led us not to an economic crisis or an immigration crisis or an environmental crisis or a civil liberties crisis. They have led us to a crisis of faith where citizens no longer believe that laws have any determinant meaning. It is politics, not the law, that appears to drive outcomes — a self-destructive trend for a nation supposedly defined by the rule of law.

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National Association for Urban Debate LeaguesCourts CP***Offense***

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2AC – Plenary Powers Offense 1/2 (__)

(__) The counterplan’s judicial overstretch on immigration collapses plenary powers – those are key to solve foreign policy crises Feere, legal policy analyst at the Center for Immigration Studies, 2009(Jon, “Plenary Power: Should Judges Control U.S. Immigration Policy?”, https://cis.org/Report/Plenary-Power-Should-Judges-Control-US-Immigration-Policy)

Foreign Powers Controlling U.S. Immigration Policy? One of the arguments for the political branches’ plenary power over immigration involves a focus on foreign affairs . That issue was a factor in the Zadvydas decision. Under the Constitution, it is the executive and legislative branches that direct foreign policy matters. This ensures that the U.S. relations with other countries are consistent and reliable . As explained by the dissenting justices in Zadvydas: “ judicial orders requiring release of removable aliens , even on a temporary basis, have the potential to undermine the obvious necessity that the Nation speak with one voice on immigration and foreign affairs matters .”90 The problem is that the majority effectively empowered foreign governments to control U.S. immigration policy . The dissenting justices in Zadvydas explained:

“The result of the Court’s rule is that, by refusing to accept repatriation of their own nationals, other countries can effect the release of these individuals back into the American community. If their own nationals are now at large in the United States, the nation of origin may ignore or disclaim responsibility to accept their return. The interference with sensitive foreign relations becomes even more acute where hostility or tension characterizes the relationship, for other countries can use the fact of judicially mandated release to their strategic advantage , refusing the return of their nationals to force dangerous aliens upon us.”91

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2AC – Plenary Powers Offense 2/2 (__) Effective and swift foreign policy key to avert escalation Kavanagh, political scientist at the RAND Corporation, 2018(Jennifer, Michael D. Rich, president and chief executive officer of the RAND Corporation, 2018, Truth Decay: An Initial Exploration of the Diminishing Role of Facts and Analysis in American Public Life, p. 200-207)

Finally, the government’s inability to reach quick decisions on key issues can create significant foreign policy risk . When external threats arise, the U nited States must be able to make immediate decisions to protect national security . When it cannot do this because of political paralysis, the safety of individuals and infrastructure are placed in serious jeopardy. Decisions about how and when to deploy U.S. ground forces must be based on clear data and information as well as a definitive understanding of relevant alliances and commitments. In cases when responses must be immediate, hesitation and indecision can have significant consequences. Furthermore, unintentional escalation and other consequences could also result from political paralysis caused by Truth Decay in such a situation.

Thus, the costs of political stalemate are substantial , whether measured in terms of economic losses, degradation of the quality of government, increased foreign policy risk , or simply the loss of credibility an ineffectual government suffers in the eyes of its electorate. Increasing disagreement about facts and analytical interpretations of facts and data and the blurring of the line between opinion and fact contribute to this political stalemate by preventing effective civil discourse and meaningful debate and by making compromise increasingly difficult. Because of the magnitude and seriousness of these costs, additional analysis would be valuable both for advancing researchers’ understanding of areas where these costs are greatest and for designing responses to address them. Perhaps most important, although Young et al. make great strides in estimating the costs of government shutdowns, delays in judicial confirmation, and an inability to implement legislation, it is considerably more difficult to estimate the costs associated with foreign policy risk, erosion of diplomatic relationships, reduced government credibility, or a decrease in the overall quality of government legislation and services due to political stalemate. Efforts to estimate these costs would help policymakers and even voters understand the myriad ways in which a stalemate directly affects their livelihoods and national security. For example, efforts to assess the costs of inefficiencies in the ACA could underscore for individual voters how government stalemate directly affects their livelihoods and, in turn, could create electoral pressure for compromise.30 Research on ways that polarization can be reduced (discussed in the previous chapter) will also be essential: The key to overcoming political paralysis is to reduce division and refusal to compromise across party lines. Potential solutions might include institutional or process changes at the state or national levels that incentivize compromise or at least ease its process. Still, it is important to remember that checks and balances in U.S. political institutions are intended to grind processes to a halt when the country is deeply divided and when agreement on key policies is limited. In this sense, government paralysis may be beneficial, serving as a check on the power of any one person or party. Research focused on identifying the benefits and opportunities of stalemate, if they exist, could be beneficial. The research agenda in Chapter Six proposes additional avenues for research into political paralysis.

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Extension – Uniqueness – Plenary Power Strong Now 1/2 (__)

(__) Plenary power strong now --- Jennings v. Rodriguez reaffirmed it’s long tradition by ruling for indefinite detention without bail – but the doctrine is vulnerable Crennen-Dunlap, J.D. Candidate at the University of Denver Sturm College of Law, 2018(Allison, 3/25/2018, “A Constitution that Starves, Beats, and Lashes (or the Plenary Power Doctrine): Jennings v. Rodriguez and a Peek into Immigration Dissent History “, University of Denver, Law Review, http://www.denverlawreview.org/dlr-onlinearticle/2018/3/25/a-constitution-that-starves-beats-and-lashes-or-the-plenary.html)

With commentators on Jennings noting Justice Breyer’s “scathing dissent,”[23] immigration law students might take this opportunity to remember the dissents of immigration past to see how, if at all, the debate has shifted over the past 130 years. In some respects, not much has changed. The specter of immigration law’s notorious plenary power doctrine still looms large. What has changed, of course, is the context in which these dissenters were writing. Since Chief Justice Fuller, writing in 1893, told us that plenary power over the deportation of resident noncitizens “contains within it the germs of the assertion of an unlimited and arbitrary power . . . incompatible with the immutable principles of justice,”[24] the United States government has created a massive deportation and detention regime.[25] Notably, some of the justices who would provide the most constitutional protections for noncitizens were writing at a time when deportation and detention were rare practices.[26] Now that many of us unthinkingly accept deportation and detention as inevitable,[27] we seem to have narrowed the debate, asking more limited questions about what protections noncitizens deserve.[28] By remembering what arguments some of our nation’s greatest legal minds once thought feasible, we can begin to reframe what might be possible today. We can thus look into the past to imagine a different future. The Plenary Power Doctrine Underlying much of the debate between dissenters and majority writers over the years is immigration law’s much-criticized plenary power doctrine, which has historically allowed the legislative and executive branches to exercise significant control over immigration with minimal intrusion from the judiciary. In 1889, the Supreme Court upheld Congress’ explicitly racist Chinese Exclusion Act, the federal government’s first major attempt to exclude noncitizens from U.S. borders.[29] The Court found that the power to exclude migrants was inherent in sovereignty (as opposed to enumerated in the Constitution)[30] and held by the political branches of government, whose determination is conclusive upon the judiciary.”[31] Although the Court has since allowed some judicial review of the constitutionality of immigration laws and their execution,[32] the plenary power doctrine remains a prominent feature of immigration law that leaves some wondering just how much protection the Constitution provides noncitizens. Indeed, the Court has famously declared that “whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”[33] Although the extent to which the political branches retain plenary power over immigration today remains a lively question,[34] the Government’s Jennings briefs

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relied heavily on this doctrine .[35] That doctrine also lurked beneath Justice Breyer’s dissent insofar as he argued both that the judiciary has a role to play in assessing the constitutionality of immigration laws[36] and that arriving noncitizens deserve constitutional protections.[37] Justice Breyer’s dissent, then, continues a history of dissents pushing back on the political branches’ immense power over immigration laws. As discussed below, that history began at the end of the nineteenth century.

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Extension – Uniqueness – Plenary Power Strong Now 2/2 (__) Plenary power high now – decisions like Demore v. Kim have insulated the executive and congress from judicial checks now Lindsay, Associate Professor at the University of Baltimore School of Law, 2018(Matthew J., “The Perpetual “Invasion”: Past as Prologue in Constitutional Immigration Law “, Roger Williams University Law Review, 23(369), https://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?article=2071&context=all_fac)

Today, more than a century later, federal regulation of noncitizens remains constitutionally exceptional, outside of and largely insulated from mainstream constitutional norms. Under this “plenary power doctrine,” as constitutional immigration law is conventionally known, federal authority to regulate immigration derives not from any enumerated power, but is rather “an incident of sovereignty belonging to the government of the United States.”52 The authority is thus exclusive to the federal government, and its exercise by Congress or the President is buffered against judicially enforceable constitutional constraints.53 Critically, the Court continues to justify the constitutional exceptionalism of immigration power with reference to the purportedly intricate connection between immigration regulation and “basic aspects of national sovereignty, more particularly our foreign relations and the national security.”54 FOOTNOTE 54 BEGINS…. 54. Galvan v. Press, 347 U.S. 522, 530 (1954). See also Demore v. Kim, 538 U.S. 510, 522 (2003) (“[A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government.” (citation omitted)). FOOTNOTE 54 ENDS….

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https://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?article=2071&context=all_fac


Extension – Link – Counterplan Collapses Plenary Powers (__)

(__) Attempts to weaken plenary power are growing but they don’t have a foot in the door --- the plan triggers it --- strips all congressional power Feere, legal policy analyst at the Center for Immigration Studies, 2009(Jon, “Plenary Power: Should Judges Control U.S. Immigration Policy?”, https://cis.org/Report/Plenary-Power-Should-Judges-Control-US-Immigration-Policy)

While the plenary power rests on a solid history, attempts to weaken the plenary power doctrine and undermine the role of Congress and the executive branch in the realm of immigration regulation have been afoot for years. This is, in part, a result of an increased judicial focus on individual rights, a willingness of courts to dissect and/or rewrite statutes (what some might call “legislating from the bench”), and the general tendency of those granted power by the state to aggrandize that power. At the same time, open-border immigration attorneys have been desperately searching for an argument that would erase decades of Supreme Court precedent and the authority of the political branches to regulate immigration at all , their aim being more opportunities for appeal and a more lenient immigration policy over all. Outside academia , they have been largely unsuccessful , save for a few anomalous and narrow Supreme Court holdings, critiqued below, and an increasing willingness on the part of a number of lower courts to openly evade the plenary power doctrine by applying their own inconsistent statutory interpretation methodology to even the most basic immigration cases.This attempt at erasing the plenary power must not go unaddressed. Without the plenary power doctrine, the judicial branch — rather than elected members of the political branches — would be in control of much of the nation’s immigration system as courts apply constitutional or “constitutional-like” standards to all exclusion and deportation cases. Theoretically, the ability of the political branches to determine who should be welcomed to our shores, who should stay, and who should go could be almost completely abolished in favor of a judge-regulated immigration system. Immigration policy decisions would be less likely to be shaped through the political process and would therefore lessen the power of the electorate to control the nation’s future and to decide who we are as a nation and who we will be. Furthermore, detailed political considerations appropriate to expert agency officials may not be adequately considered by judges who are generally without the requisite immigration expertise. This is good for neither citizens nor aliens. Fortunately, the plenary power doctrine rests on a solid foundation and will remain strong , provided that the political branches steadfastly rebuff any attempts to weaken it .

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Extension – Link – Answers To: Counterplan Doesn’t Hurt Plenary Powers

(__)

(__) The counterplan still links – judicial actions on immigration hit at the heart of the doctrine even when they try to creatively avert it Lindsay, Associate Professor at the University of Baltimore School of Law, 2018(Matthew J., “The Perpetual “Invasion”: Past as Prologue in Constitutional Immigration Law “, Roger Williams University Law Review, 23(369), https://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?article=2071&context=all_fac)

Invoking the doctrine of constitutional avoidance to rewrite the challenged statutory provision was essentially an evasive maneuver, through which the majority avoided the logical consequence of plenary federal power. Even as the Court left the plenary power doctrine itself intact, however, it also implicitly contravened the doctrine’s essential warrant for judicial deference: the presumption that immigration lawmaking and enforcement per se is part and parcel of the political branches’ authority over foreign affairs and national security.

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https://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?article=2071&context=all_fac


Extension – Internal Link – FoPo Deference Good (__)(__) Deference on foreign affairs is critical to crisis response Martin, Professor of International Law at the University of Virginia, 2015(David A., “Why The Plenary Power Doctrine Endures”, Oklahoma Law Review, 68(1), https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1013&context=olr)

Some critics of the plenary power doctrine question this asserted linkage between immigration and foreign affairs. Chinese exclusion was not a foreign affairs decision, they assert, but one driven by domestic political considerations — and in fact it worsened our relations with China.38 The invocation of foreign affairs is seen as a pretext covering up uglier motives, and the plenary power doctrine prevents courts from looking behind the mask.39 Therefore, some assert that courts should simply provide the ordinary measure of constitutional scrutiny — to smoke out invidious motives or at least to provide an appropriate evaluation of the weight of the governmental in light of the individual stake.40

This kind of pretextual invocation certainly can occur. But here is the difficulty: We should not assume that pretexts in the foreign affairs arena are readily identifiable. As Justice Breyer observed in a recent political question case:

Decisionmaking in [the foreign affairs] area typically is highly political. It is “ delicate ” and “ complex .” It often rests upon information readily available to the Executive Branch and to the intelligence committees of Congress, but not readily available to the courts. It frequently is highly dependent upon what Justice Jackson called “prophecy.” And the creation of wise foreign policy typically lies well beyond the experience or professional capacity of a judge. At the same time, where foreign affairs is at issue, the practical need for the United States to speak “ with one voice and ac[t] as one,” is particularly important.41

Many of the nation’s policy tools in the foreign arena are crude and imprecise, with uncertain impact. This very uncertainty may require trialand-error application, with a need for quick policy changes, especially in times of crisis. Therefore, deference to the political branches is called for, not because we can always be sure that their motives are pure and nondiscriminatory — we cannot — but because subjecting these measures to detailed litigation would interfere with the flexibility often necessary to act beyond our borders. A too-ready judicial interference would also impair our ability to deploy uncertain tools — deriving from immigration control, trade regulation, or other components of our international relations — according to a single unified strategy.42

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Extension – Impact – Laundry List (__)

(__) The impact outweighs – a host of global challenges require effective plenary powers – terrorism, failed states, democratic backsliding, disease and climate changeMartin, Professor of International Law at the University of Virginia, 2015(David A., “Why The Plenary Power Doctrine Endures”, Oklahoma Law Review, 68(1), https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1013&context=olr)

Today’s global scene is far more grim. Not only has the United States experienced the trauma of al Qaeda’s September 11 attacks, which revealed a genuine need for more vigilant immigration screening, but democratic nations are also facing new global threats from other nongovernmental actors who actually glorify the use of beheadings, crucifixion, and slavery, in addition to other players using more old-fashioned forms of terrorism directed at civilians. Failed states are more common , and well-armed insurgencies have proliferated. The march of democracy has slowed and , in several countries, reversed. Climate change and even plague-like diseases presage more complicated foreign policy challenges , many of which will have a migration dimension. The risks to the U nited S tates , if our government’s foreign-policy-linked initiatives are unsuccessful, now seem far high er than in 1989. Thus, I do not foresee the Supreme Court retreating significantly from the strong deference doctrines derived from Chae Chan Ping. 59 FOOTNOTE 59 BEGINS… 59. If the twenty-first-century Court were ready to make inroads into the plenary power doctrine, this year’s Kerry v. Din case, 135 S. Ct. 2128 (2015), presented a golden opportunity, because a sympathetic petitioner there asked for what appeared to be a quite modest judicial intervention. Nonetheless the majority rejected the claim. Id. at 2138. Din is a U.S. citizen who had petitioned for the immigration of her husband, an Afghan national. The consular officer denied an immigrant visa, and the only reason given to Din was a citation to the broad terrorism ground of inadmissibility. She argued that the due process clause’s protection of marital rights mandates in these circumstances a more complete statement of reasons so that she might have a meaningful opportunity to seek reconsideration. Id. at 2131. The four dissenters would have ruled in her favor, id. at 2141 (Breyer, J., dissenting), while the other five Justices combined to reject the claim. Justice Scalia, for the three-member plurality, held that the due process clause does not apply because the government’s action denied Din no constitutionally recognized liberty interest. Id. at 2138. Of more relevance here, however, was the opinion by Justice Kennedy for himself and Justice Alito. Id. at 2139. They assumed without deciding that a liberty interest was involved, but they relied on the exceedingly deferential test announced in the First Amendment case of Kleindienst v. Mandel, 408 U.S. 753 (1972), to hold that Din received all the process she was due. Id. at 2139-41. That test requires a court to uphold a visa denial if it is based on a “facially legitimate and bona fide reason,” Mandel, 408 U.S. at 770 (emphasis added). Kennedy specifically relied on Congress’s plenary power over conditions of admission in finding

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that the bare-bones reason given to Din was facially legitimate. Din, 135 S. Ct. at 2139-41 (Kennedy, J., concurring).

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Extension – Immigration Challenge Spills Over (__)

(__) Yes spillover --- the plan gets used by interest groups to broadly challenge administrative authority Family, Professor of Law and Government and Director, Widener University Commonwealth Law School, 2018(Jill E., 2018, Georgetown Immigration Law Journal, 32(99), https://www.law.georgetown.edu/immigration-law-journal/wp-content/uploads/sites/19/2018/05/32-1-Immigration-Law-Allies-and-Administrative-Law-Adversaries.pdf)

Those involved in the convergence of immigration law allies and administrative law adversaries have much to consider. Immigration law allies need to acknowledge and understand that arguments about agency power in immigration law implicate a much larger discussion about the power of the federal government to regulate. At times, the convergence may result in improvement in immigration law. Administrative law adversaries, however, may use or see the convergence as a step toward achieving a much larger goal of minimizing federal power generally.

Similarly, administrative law adversaries need to fully digest that their arguments and end goals have implications for immigration law.208 Will they also argue for diminished federal authority over immigration law, or will they treat immigration law as exceptional?209 It is unclear how far adversaries are willing to include noncitizens in their concerns about liberty and separation of powers.210 Would opponents of Chevron treat immigration law exceptionally if Chevron deference were abandoned? Should other areas of agency action get increased judicial scrutiny, but not immigration law? Would adversaries devolve immigration power to the states if the administrative state were dismantled?211 Or would the power to regulate immigration stay with the federal government?

Immigration law allies occupy a unique vantage point to approach the latest efforts of administrative law adversaries to weaken or reform the administrative state. The convergence allows immigration law allies insight into the concerns that motivate administrative law adversaries. Likewise, the convergence allows administrative law adversaries to understand allies’ concerns about the treatment of foreign nationals. The convergence appears to be limited, but its breadth ultimately will be determined by the allies and adversaries themselves. Immigration law allies should consider whether they are also administrative law adversaries, and administrative law adversaries need to clarify how immigration law fits into their efforts to safeguard against federal power.

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Documents

Table of Contents - stlouisurbandebate.org · Web viewTable of Contents . Table of Contents1. Glossary3. Notes4. Negative5 ***1NC Counterplan Versions***6. 1NC Refugees Counterplan7

Table of Contents - stlouisurbandebate.org · Web viewTable of Contents . Table of Contents1. Glossary3. Notes4. Negative5 1NC Counterplan Versions6. 1NC Refugees Counterplan7