Ex Parte Merryman CP

Will Malson Ex Parte Merryman Counter-Plan Page 1 of 15
Ex Parte Merryman CP -- Index (1/2)
Ex Parte Merryman CP -- Index (1/2)................................................................................1

Judicial Tyranny DA (1/2).................................................................................................2
A. Links ....................................................................................................................................................................2
1. Allowing the Supreme Court to be the ultimate arbiter of Constitutionality causes judicial supremacy:
“people will have ceased to be their own rulers” ...............................................................................2
2. Unchecked Judicial supremacy causes judicial tyranny .................................................................3
Judicial Tyranny DA (2/2) ................................................................................................3
B. Impacts.................................................................................................................................................................3
1. Supremacy of the Judiciary Destroys Federalism...........................................................................3
2. Federalism is more important to the liberty and well being of the American people than any other part of
our constitutional system.....................................................................................................................4
Counter-Plan Text..............................................................................................................4
Counter-Plan Solvency (1/1) .............................................................................................5
1. If the President refuses to enforce a judgment, it is in effect erased from the Law .........................5
2. Finally, please note that the counterplan is the only way to solve judicial tyranny—anything other than
completely autonomous executive rejection will ultimately lead back to judicial tyranny and undermine
democracy...........................................................................................................................................6
Extension: Judicial Tyranny Links (1/1)............................................................................6
A. An absence of independent Executive review causes Judicial supremacy which destroys causes Judicial
tyranny ...............................................................................................................................................6
B. Anything less than totally autonomous Executive interpretation destroys checks & balances and causes
Judicial tyranny ..................................................................................................................................7
Extension: Judicial Tyranny Internal Links (1/1)...............................................................7
A. Allowing one branch interpretive supremacy allows that branch to become tyrannical and omnipotent –
independent Executive review of Court decisions is necessary to stop it.............................................7
B. Giving the Supreme Court the final say allows it to control the other branches of the Federal
Government, collapsing the Separation of Powers Doctrine and destroying Federalism ...................8
Extension: Federalism Good Impacts (1/2)........................................................................8
A. Federalism allows social utility to be maximized and can alleviate the problem of raw majority rule
(basically prevents mob rule)..............................................................................................................8
B. Federalism is a vital instrument in preserving liberty and protecting against tyranny...................8
Extension: Federalism Good Impacts (2/2)........................................................................9
C. Federalism is a vital guarantor of liberty.......................................................................................9
D. Decentralization (federalism) helps ensure taxpayers know what policies they are paying for......9
Extension: Executive Solvency (1/1)................................................................................10
A. The Executive branch – the President – has completely independent interpretive authority ........10
B. The President has the right to review court decisions and refuse to enforce them if he desires....11
C. Judgments don't execute themselves - Executive noncompliance solves the Affirmative case just as well as
the Plan does ....................................................................................................................................11
AT: CP creates Executive tyranny (1/2)...........................................................................11
A. There are four distinct checks on abuse of Executive Review Power (1) required advisement from others,
(2) the customary humility of enforcement, (3) the public opinion and the general election, and (4)
legislative control from Congress .....................................................................................................11
B. Executive Review of Court decisions allows Congressional Review of Executive Decisions which checks
any abuse...........................................................................................................................................12
AT: CP creates Executive tyranny (2/2)...........................................................................12

C. Executive review does not mean supreme executive authority over the courts; he cannot control the
Courts any more than he can control Congress ................................................................................12
AT: CP destroys Court’s power.......................................................................................13
The CP doesn't make Court opinions advisory any more than Judicial Review makes Congressional statutes
“advisory" – The CP just decreases litigation, which doesn't hurt the Judiciary .............................13
Turn: CP causes interpretive gridlock..............................................................................14
Interpretive gridlock ensures stability & prevents tyranny ...............................................................14
Judicial Tyranny DA (1/2)

A. Links
1. Allowing the Supreme Court to be the ultimate arbiter of Constitutionality causes judicial
supremacy: “people will have ceased to be their own rulers”
Joel K. Goldstein [Prof. Of Law, St. Louis Univ]., “The Presidency and the Rule of Law: Some
Preliminary Explorations”, 43 St. Louis L.J. 791, Summer 1999 (HEG)
Presidents have long resisted the proposition that the judiciary is the supreme constitutional interpreter.
Thomas Jefferson wrote Abigail Adams that "nothing in the Constitution has given [judges] a right to
decide for the Executive, more than to the Executive to decide for them." n232 Andrew Jackson opined
that "it is as much the duty of the House of Representatives, of the Senate, and of the President to decide
upon the constitutionality of any law or resolution which may be presented to them for passage or
approval as it is of the supreme judges when it may be brought before them for judicial decision." "The
opinion of the judges has no more authority over Congress than the opinion of Congress has over the
judges, and on that point the President is independent of both." n233 In his first inaugural address,
Abraham Lincoln stated that if government policy on "vital questions affecting the whole people is to be
irrevocably fixed by decisions of the Supreme Court ...the people will have ceased to be their own
rulers...." n234
2. Unchecked Judicial supremacy causes judicial tyranny

Michael Stokes Paulsen [Assoc. Prof. Of Law, Univ. Of Minn. Law School], “The Most Dangerous
Branch: Executive Power to Say What the Law Is”, 83 Geo. L.J. 217, December 1994 (HEG)
Nevertheless, some find it intuitively appealing to vest superiority -- and thus practical governmental
supremacy -- in the branch possessing the fewest actual powers with which to govern. Casting Marbury
and coordinacy to the wind altogether, the pure policy argument often advanced is that it is best to vest
supremacy in the "least dangerous" branch. To the extent that interpretive supremacy is vested
anywhere, however, the body granted such supremacy is the most to be feared for its tyranny. To grant
interpretive supremacy to the courts, unchecked by the other branches of government, is to make the
judiciary the most dangerous branch.
Judicial Tyranny DA (2/2)

B. Impacts
1. Supremacy of the Judiciary Destroys Federalism

The spectre of a cadre of unelected, unaccountable judges becoming the effective lawgivers by virtue of
their supreme interpretive power was a leading argument of the Anti-Federalist writer Brutus in New
York n93 -- an argument to which Hamilton was likely responding in The Federalist No. 78. n94 Brutus
made much the same argument for judicial review as Hamilton [*246] and Marshall later would make,
but he did not view the prospect with such equanimity. This is because Brutus (wrongly, as Hamilton
would argue) equated judicial review with judicial supremacy. Because Article III "vests the judicial
with a power resolve all questions that may arise" under the Constitution and laws, Brutus wrote, n95
"[t]he real effect of this system of government, will . . . be brought home to the feelings of the people,
through the medium of the judicial power." n96 The courts, "placed in a situation altogether
unprecedented in a free country," n97 would acquire a practical omnipotence: The opinions of the
supreme court . . . will have the force of law; because there is no power provided in the constitution, that
can correct their errors, or control their adjudications. From this court there is no appeal. . . . [T]he
legislature themselves, cannot set aside a judgment of this court, because they [the courts] are authorised
by the constitution to decide in the last resort. The judicial power would, because uncheckable, result in
"an entire subversion of the legislative, executive and judicial powers of the individual states." n99
2. Federalism is more important to the liberty and well being of the American people than any
other part of our constitutional system
Insert Steven G. Calabresi 95
Ethos  AFF_Federalism  AFF Backup – Federalism PRO  Justifications  C. Federalism

Protects Individual Freedom  1.
Counter-Plan Text
Text: The President of the United States will exercise the power of executive review over the previous
ruling of the Supreme Court in ________________________________________________________.
The President will determine that the aforementioned decision contains irreconcilable constitutional
defects and will suspend all current and future enforcement of the decision as per the circumstances
surrounding Ex Parte Merryman. We reserve the right to clarify.
Counter-Plan Solvency (1/1)
1. If the President refuses to enforce a judgment, it is in effect erased from the Law
The Constitution creates three part government. But the work of the judiciary, deciding cases, is not self-
executing. Judgments need enforcement, yet courts cannot provide it. As Hamilton argued, the judiciary
has "neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the
executive arm even for the efficacy of its judgments."
2. Finally, please note that the counterplan is the only way to solve judicial tyranny—anything
other than completely autonomous executive rejection will ultimately lead back to judicial tyranny
and undermine democracy
Michael Stokes Paulsen [Assoc. Prof. Of Law, Univ. Of Minn. Law School], “The Merryman Power And
The Dilemma of Autonomous Executive Branch Interpretation”, 15 Cardozo L. Rev. 81, October, 1993 (HEG)
Lincoln's words upon becoming President in his First Inaugural strike the same theme even more
strongly: The candid citizen must confess that if the policy of the government, upon vital questions,
affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, ... the people
will have ceased to be their own rulers, having, to that extent, practically resigned their government, into
the hands of that eminent tribunal. n18 Not only does a judicial decision not bind the executive and the
legislature in making subsequent policy, Lincoln argued, but the contrary suggestion, that the political
branches must acquiesce in Supreme Court judgments as supplying the rule governing all their actions,
is inconsistent with democratic self-government: "the people will have ceased to be their own rulers,
having to that extent practically resigned their Government" to the judiciary. Lincoln was thus a
vigorous advocate of what we today would call "nonacquiescence."
Extension: Judicial Tyranny Links (1/1)
A. An absence of independent Executive review causes Judicial supremacy which destroys causes
Judicial tyranny
Taken seriously, then, any principle that would justify the finality-of-judgments exception inevitably
swallows the coordinacy-of-the-branches rule of Marbury and The Federalist. In principle, the choice is
not between completely co-equal executive branch interpretive authority and "partially co-equal"
authority, but between co-equal authority and complete judicial supremacy. Taken seriously, the contra-
Merryman Power supremacy-of-judgments premise yields complete judicial supremacy, which
contradicts the postulate of coordinacy and the established theorem of judicial review. The indirect proof
thus establishes that the supremacy-of-judgments premise is wrong, and affirms its negation: complete
interpretive coordinacy and co-equal executive review (including the Merryman Power). Thus, if the
case against completely coordinate executive review proves anything, it proves too much: it proves that
Brutus was right; it proves that we are, in principle, governed by a judicial aristocracy, with complete
constitutional authority to decree what it will. It proves that the judiciary is Jefferson's "despotic
branch."
B. Anything less than totally autonomous Executive interpretation destroys checks & balances and
causes Judicial tyranny
Michael Stokes Paulsen [Assoc. Prof. Of Law, Univ. Of Minn. Law School], “The Merryman Power
And The Dilemma of Autonomous Executive Branch Interpretation”, 15 Cardozo L. Rev. 81, October
1993 (HEG)
Lincoln left it to Attorney General Bates to develop the broader argument for the Merryman power.
Bates's opinion, dated July 5, 1861 (the day after Lincoln's address), developed the argument from the
Madisonian premise of the coordinacy of the branches. The American people, Bates wrote, were
"actuated by a special dread of the unity of power" and hence deliberately adopted a system in which no
one branch has "sovereignty." n51 Sovereignty resides in the people, not in any organ of government.
Accordingly, the American people adopted a system that divides and distributes power among several
agencies in order to furnish "checks and balances" against concentration and abuse of power. These
departments are co-ordinate and coequal - that is, neither being sovereign, each is independent in its
sphere, and not subordinate to the others, either of them or both of them together.... If we allow one of
the three to determine the extent of its own powers, and also the extent of the powers of the other two,
that one can control the whole government, and has in fact achieved the sovereignty. Our fathers, having
divided the government into coordinate departments, did not even try (and if they had tried would
probably have failed) to create an arbiter among them to adjudge their conflicts and keep them within
their respective bounds. They were left ... each independent and free, to act out its own granted powers,
without any ordained or legal superior possessing the power to revise and reverse its action. And this
with the hope that the three departments, mutually coequal and independent, would keep each other
within their proper spheres by their mutual antagonism - that is, by the system of checks and balances, to
which our fathers were driven at the beginning by their fear of the unity of power. n53
Extension: Judicial Tyranny Internal Links (1/1)
A. Allowing one branch interpretive supremacy allows that branch to become tyrannical and
omnipotent – independent Executive review of Court decisions is necessary to stop it
In short, Marshall's argument is that the whole idea of a written constitution setting forth distinct
branches with limited powers is inconsistent with granting one branch interpretive supremacy -- the
power to judge the scope of its own powers as well as those of the others. The power to interpret,
Marshall recognized, was, as Bishop Hoadley had said nearly a century before, the power to be the real
lawgiver. n90 To hold that one branch's interpretation controls another is to bestow a "practical and real
omnipotence" on the controlling branch. Such omnipotence was, for Marshall -- and, as we shall see, for
other leading and influential thinkers in the founding generation -- inconsistent with the idea of
separation of powers and thus anathema. The structure of the Constitution, and the political theory of
written constitutions generally, compelled the conclusion that the courts were not bound by the
constitutional judgments of Congress. It follows, though, by the same reasoning, that to grant the courts
interpretive supremacy would be to give them a "practical and real omnipotence." The logic of
Marshall's structural argument equally supports the conclusion that the executive is not bound, within its
sphere, by the interpretations of Congress or of the courts. If the idea of a written constitution
necessarily implies enforceable limitations on the organs of governmental power thereby constituted, it
surely implies limitations on [*245] the courts as well as on Congress and the President. As Marshall
wrote later in the opinion, "the framers of the constitution contemplated that instrument as a rule for the
government of courts, as well as of the legislature." n91 Marbury's sword cuts against any branch having
exclusive or predominant interpretive power.
B. Giving the Supreme Court the final say allows it to control the other branches of the Federal
Government, collapsing the Separation of Powers Doctrine and destroying Federalism
The Dilemma of Autonomous Executive Branch Interpretation”, 15 Cardozo L. Rev. 81, October 1993 (HEG)
If, on the other hand, the judiciary has the final say in matters of legal interpretation, all of these
disputed issues become matters of judicial control. Indeed, the Supreme Court even has final power to decide
that a lawsuit challenging the propriety of grounds on which vetoes or pardons are issued poses a justiciable
controversy, to decide the merits of the controversy, and to grant appropriate relief. Relief might entail an
injunction directed to the President restraining him from making certain use of the pardon power, a declaration
that a vetoed bill has become a law, or merely an order "vacating" the President's pardon or veto and "remanding"
for further action sans the forbidden constitutional declaration. n84 It is all up to the courts. Executive interpretive
autonomy is a gift from the courts. What the Court giveth the Court can always taketh away. For some, that
already would be enough to support the conclusion that Jefferson's fears had been realized - that the power to
control the judgments of other branches "would make the judiciary a despotic branch." n85 But that is not all: if
the judiciary has final power of legal interpretation, it can eviscerate all the powers of the Presidency (or
of Congress, or of the states) if it were inclined to do so. Thus, if the argument for the finality of judicial
decrees proves anything, it also proves too much: it supports an essentially unlimited conception of
judicial supremacy. And the prevailing consensus is not comfortable with admitting this, either.
Extension: Federalism Good Impacts (1/2)
A. Federalism allows social utility to be maximized and can alleviate the problem of raw majority
rule (basically prevents mob rule)
Ethos  AFF_Federalism  AFF Backup – Federalism PRO  Justifications  D. Federalism

Prevents Tyranny  1.
B. Federalism is a vital instrument in preserving liberty and protecting against tyranny


Extension: Federalism Good Impacts (2/2)
C. Federalism is a vital guarantor of liberty

D. Decentralization (federalism) helps ensure taxpayers know what policies they are paying for

Extension: Executive Solvency (1/1)
A. The Executive branch – the President – has completely independent interpretive authority
The premise underlying autonomous executive branch interpretation is the coordinacy of the three
branches of the federal government - a premise based on no less an authority than James Madison and
The Federalist No. 49: [*85] The people are the only legitimate fountain of power, and it is from them
that the constitutional charter, under which the several branches of government hold their power, is
derived .... The several departments being perfectly co-ordinate by the terms of their common
commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the
boundaries between their respective powers. n7 The premise of coordinacy, as articulated by Madison,
implies that no branch has final interpretive authority, but that each branch has interpretive authority
within the sphere of its other constitutional powers; the resolution of disputed points depends on the
pull-and-tug of the different branches, just as the Constitution's separation of powers in other respects
works to preserve a system of checks and balances. The coordinacy principle thus implies that the
executive branch - that is, the Presidency n8 - has completely independent interpretive authority within
the sphere of its powers.
B. The President has the right to review court decisions and refuse to enforce them if he desires
In such event, the President's power to nullify judgments - "the Merryman power" n6 - means that there
is no such thing as judicial supremacy: the President has legitimate constitutional authority to disregard
any judicial decree or precedent he chooses. But the choice is necessarily between these two extreme-
sounding propositions. There is no defensible middle ground.
C. Judgments don't execute themselves - Executive noncompliance solves the Affirmative case just
as well as the Plan does
But that is simply not so in many (if not most) cases. Judgments are rarely self-executing; they require,
in a word, execution. They are not meaningfully different from statutes in that regard. If court decisions
constitute "law" binding on the parties (just as statutes are "laws" of general applicability), then the
branch charged with the faithful execution of those laws is, as Hamilton recognized in The Federalist
No. 78, the executive branch. n218 To the extent judgments require execution, the executive, not the
judiciary, has the last interpretive word.
AT: CP creates Executive tyranny (1/2)
A. There are four distinct checks on abuse of Executive Review Power (1) required advisement
from others, (2) the customary humility of enforcement, (3) the public opinion and the general
election, and (4) legislative control from Congress
Would these concessions to executive interpretive autonomy leave us naked before a Chief Executive
prone to self-aggrandizement? Do we jeopardize the Rule of Law once we allow the President this
leeway to apply the Constitution as he, not the Court, sees it? I think not. Protection would come from
several sources. First, Presidents like other officials, could be expected to consider respectfully the
constitutional arguments of judges and legislators. The people who hold public office and staff those two
institutions are neither fools nor traitors; generally their conclusions will be reasonable and persuasive.
Even when the President disagrees he will need to decide whether the benefits of acting on his different
interpretation justify the costs of defiance. Departure from legislative and judicial interpretations, though
possible, would require some articulated rationales which would, of course, be subject to discussion,
analysis and scrutiny. Second, customs of presidential interpretive humility could be expected to
develop. Many of the restraints on the judiciary - justiciability doctrines, immunities, Article I bodies -
were created or endorsed by courts. Similar patterns of presidential deference should be encouraged.
n342 [*848] For instance, Presidents might proceed cautiously in areas where no other institution is
likely to review their interpretation. It may be appropriate to expect Presidents to articulate a strong
constitutional rationale in such cases. A third set of democratic restraints - public opinion and elections -
would provide incentive for measured presidential conduct. A President will think at least twice about
taking a constitutional position at odds with the Court or Congress if it will cause him to be pilloried by
the New York Times or on Larry King Live, will cost him dearly on his approval ratings, or will
jeopardize his legislative program. Finally legislative controls would check the President. Congress
could use its control of the purse and legislative hearings in response to presidential interpretations.
Impeachment and removal would be available to redress any presidential actions deemed to constitute
"high crimes and misdemeanors."
B. Executive Review of Court decisions allows Congressional Review of Executive Decisions which
checks any abuse
Third, and most importantly, although the President has formidable powers, the other branches are not
without power to check his exercise of independent interpretive authority. An equally important
consequence of my theory of decentralized interpretive power and coordinate review is that Congress is
not bound by the President's interpretation of the law any more than the President is bound by the
courts'. (And, similarly, the courts are not bound by either of the other branches' views.) n358
Moreover, the Framers vested Congress with important "shoot-out powers" n359 of its own -- the
"necessary constitutional means" (to use Madison's phrase) n360 with which to assert and defend its
preferred interpretation of the law and to check the interpretations of the other branches.
AT: CP creates Executive tyranny (2/2)
C. Executive review does not mean supreme executive authority over the courts; he cannot control
the Courts any more than he can control Congress
Crucially, executive review does not swallow this judicial power of independent judgment. The model I
have advanced therefore cannot be equated with "executive supremacy." n290 Interpretive "supremacy"
would mean having the authority to tell the other branches what they must do in their spheres. That is
precisely the problem with the finality-of-judgments view: It assumes that the courts can tell the
executive what to do within its sphere. Chief Justice Taney gave away the game in this regard, asserting
that the President "acts in subordination to judicial authority" with respect to the execution of the laws.
n291 Co-equal executive interpretive authority does not mean supreme executive interpretive authority
because it does not compromise the judiciary's power of independent judgment within its sphere. The
President may not tell the courts how to decide a case. He can ask nicely (or menacingly), but he cannot
peremptorily direct a decision any more than he may tell Congress that it must pass a bill. The judiciary
gets its say -- the power, within its province, to say what the law is -- even though it cannot legally bind
the executive with its opinion. The power to speak is not a cipher. n292
AT: CP destroys Court’s power
The CP doesn't make Court opinions advisory any more than Judicial Review makes
Congressional statutes “advisory" – The CP just decreases litigation, which doesn't hurt the
Judiciary
Nor does this conception of the judicial power run contrary to the traditional view that Article III does
not permit the federal judiciary to render "advisory opinions." n293 The advisory opinion doctrine is
merely a prohibition on Article III courts engaging in extrajudicial resolution of legal issues -- of
deciding legal questions outside of a litigated "case" or "controversy." A judicial opinion, rendered in a
proper lawsuit involving [*303] proper parties, does not become "advisory" in this sense simply
because the executive may decline to honor it within the sphere of his powers. n294 It is no more
accurate to say that executive legal review renders all judicial opinions advisory than to say that judicial
review renders every act of Congress an advisory statute. n295 It is true that increased recognition by
the executive branch of its independent interpretive province might mean that fewer matters would need
to be litigated, thus diminishing somewhat the role of courts. It is difficult to see what is wrong with
that. If no party is aggrieved by the executive branch's interpretation, who wants a lawsuit? A decrease
in litigation is not an impairment of the judiciary's constitutional power.
Turn: CP causes interpretive gridlock
Interpretive gridlock ensures stability & prevents tyranny

The real issue with the power of executive review is not meltdown, but -- to use another currently
popular term -- "gridlock": friction, inefficiency, and lack of resolution. To a certain extent, though, the
framers intended gridlock as a consequence of separation of powers. What some today call "gridlock,"
they would have termed "stability" and a guard against tyranny. n392 If these characteristics are
desirable goals when crafting allocations of governmental power in general, then they are surely no less
[*330] desirable when crafting allocations of interpretive power (which, as we have seen, is a "meta"
power to determine the scope of all other governmental powers). There is no sound reason to believe
that the framers intended anything different. Interpretive gridlock is no different from substantive
gridlock. n393

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Will Malson Ex Parte Merryman Counter-Plan Page 1 of 15

Ex Parte Merryman CP -- Index (1/2)

Ex Parte Merryman CP -- Index (1/2)................................................................................1

AT: CP creates Executive tyranny (2/2)...........................................................................12

Judicial Tyranny DA (1/2)

2. Unchecked Judicial supremacy causes judicial tyranny

Judicial Tyranny DA (2/2)

1. Supremacy of the Judiciary Destroys Federalism

Insert Steven G. Calabresi 95

Ethos  AFF_Federalism  AFF Backup – Federalism PRO  Justifications  C. Federalism

Counter-Plan Solvency (1/1)

Extension: Judicial Tyranny Links (1/1)

Extension: Judicial Tyranny Internal Links (1/1)

Ethos  AFF_Federalism  AFF Backup – Federalism PRO  Justifications  D. Federalism

B. Federalism is a vital instrument in preserving liberty and protecting against tyranny

Insert Steven G. Calabresi 95

Ethos  AFF_Federalism  AFF Backup – Federalism PRO  Justifications  C. Federalism

Extension: Federalism Good Impacts (2/2)

C. Federalism is a vital guarantor of liberty

Insert Steven G. Calabresi 95

Ethos  AFF_Federalism  AFF Backup – Federalism PRO  Justifications  C. Federalism

Insert Steven G. Calabresi 95

Ethos  AFF_Federalism  AFF Backup – Federalism PRO  Justifications  C. Federalism

Extension: Executive Solvency (1/1)

AT: CP creates Executive tyranny (1/2)

AT: CP creates Executive tyranny (2/2)

AT: CP destroys Court’s power

Turn: CP causes interpretive gridlock

Interpretive gridlock ensures stability & prevents tyranny

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