Court Clog DA

AFF causes court clogs there will be tons of challenges to handgun

bans. ABA 08
Brief of the American Bar Association, January, 11, 2008, DC v. Heller. T$ Fife

most regulation of firearms is by

state and local governments. Jon S. Vernick & Lisa M. Hepurn, Twenty Thousand Gun-Control
Notwithstanding the numerous federal laws,

Laws?, (Brookings Institution 2002). The state and local laws include bans on certain types of guns (e.g., seven states ban assault
weapons), mandatory registration (seven states), licensing and permitting laws for the purchase of certain firearms (twelve
states), mandatory waiting periods (twelve states), licensing of firearm dealers (twenty-six states), permitting to carry a concealed
weapon (forty-six states), and mandatory background checks (forty-nine states). Legal Comm. Against Violence, Regulating Guns
in America: An Evaluation and Comparative Analysis of Federal, State and Selected Local Gun Laws (2006). The latest A.T.F.
compendium of state and local laws is 458 pages long, listing hundreds of measures. A.T.F. P. 5300.5, State Laws and Published

Revisiting the basic premise of the Second Amendment and

striking down gun legislation for the first time in 216 years would have
ripple effects through this entire network of state and
local regulation. Although the Court ruled in Presser v. Illinois, 116 U.S. 252 (1886), that the Second
Ordinances xvi (2005).

Amendment limits the power only of the federal government, the decision relied on the importance of militias as a check on

Separating the right to bear arms from the maintenance of a well regulated militia
would cast doubt on the authority of state and local
governments to regulate firearms. Such a ruling would
invite challenges to hundreds of state and local
restrictions, thrusting upon the courts difficult policy
judgments about the reasonableness of individual
regulations.
federal power.

thus

The gun industry blocks all efforts at regulating guns. Israel 15

Josh Israel. The Gun Industry Has Systematically Demolished Regulators And Avoided The Fate Of Cigarettes. Think Progress.
http://thinkprogress.org/justice/2015/12/01/3715552/gun-lobby-tobacco-industry/ December 1, 2015. DD
Its a gruesome cycle that has become all too familiar. On Friday, a mass shooting at a Planned Parenthood clinic in Colorado
Springs, Colorado left three people dead and nine more wounded. Despite a history that included domestic assault accusations
and a restraining order against him, the shooter was able to obtain an assault weapon. Over the weekend, President Obama gave
an impassioned call for action, saying, This is not normal. We cant let it become normal. If we truly care about this if were
going to offer up our thoughts and prayers again, for God knows how many times, with a truly clean conscience then we have to
do something about the easy accessibility of weapons of war on our streets to people who have no business wielding them. Period.
Enough is enough. Gun rights activists, including Colorado Springs Mayor John Suthers (R), on the other hand, warned that it

In a time when it is virtually

impossible to keep track of all of the gun deaths, story
after story about these incidents notes that nothing is
likely to change and that action on gun violence is almost
impossible. How did this happen? Polls consistently show
popular support among Americans for universal
background checks for gun buyers and bans on assaultstyle weapons, but any attempt to pass even
commonsense reforms appears dead on arrival. Such a task is not
would be premature to talk about new gun laws.

unprecedented, however, considering the nation has made great strides to reduce another major cause of preventable deaths:
Tobacco. In the Mad Men-era of the early 1960s, smoking was ubiquitous almost half of all adults smoked. Robin Koval, CEO and
president of the nonprofit Truth Initiative, remembers a time, not long ago, when people could smoke just about everywhere. Back
in the day, you could smoke on airplanes, in your office, in most public buildings, she recalled, before the science behind secondhand smoke became an impetus for major action on clean air laws. Even as recently as the 1990s, the tobacco industry wielded
enormous influence in state legislatures and in the U.S. Congress, giving it a virtual veto on public policy. A 1989 op-ed by then-

Rep. Dick Durbin (D-IL) noted that the tobacco lobby was so powerful and ingrained in Congress that the decorative wooden
leaves carved into the speakers rostrum in the U.S. House of Representatives arent sprigs of laurel; theyre tobacco. But that is
no longer the case today, thanks to the actions of Durbin and many others. Between 1965 and 2011, data from the Centers for
Disease Control and Prevention (CDC) shows the percentage of American adults who smoke cigarettes dropped from 42 percent
down to 19. And in 2009, Congress enacted its first-ever Tobacco Control Act with bipartisan support. The same is not true for
firearm ownership. Over the same period, Gallup polling shows American gun ownership rates have remained largely unchanged
and even a modest gun bill in 2013 fell well short of passage. The threat posed by unfettered access to firearms has never been
clearer, so why has the gun lobby and industry in America flourished as the tobacco industry became a pariah? A big part of the

the gun lobby preempted the sort of tactics that

anti-smoking activists successfully used to reduce
cigarette consumption. After seeing class action lawsuits
that forced the tobacco industry to change the way it
marketed its product, research by the Surgeon General
and the U.S. government helping both discourage use
and assist cessation, the creation of smoke-free public
places, increased taxes on tobacco deterring use, and
many medical professionals helping their patients quit,
the gun lobby spent tens of millions to make sure they
avoided the same fate. And by changing federal and state
laws, it found ways to block every single one of those
approaches from being used to undermine the firearm
and ammunition industries bottom lines. Here is a look at five key ways
answer is that

advocates were able to hold Big Tobacco accountable for the damage its product was causing all routes the gun industry has
preemptively blocked. Among the most potent weapons against the tobacco industry was the legal process. While legislators can
be defeated or elected with large corporate political action committee contributions, the judicial system is less easy to influence
with money. When the industry was held accountable for its practices and products, it not only had to pay for past sins but to
change its future behavior. In the 1990s, after decades of lying about the dangers of smoking and avoiding regulation and
punishment, the tobacco industrys winning streak came to an abrupt end. A 1998 settlement between 46 state attorneys general
and the nations four largest tobacco companies compelled the industry to pay hundreds of billions of dollars to the states and to
end many of its most controversial marketing practices. One of the most significant impacts of this master settlement was that
some of the money went to establish the Truth Initiative, an organization created to use public education to reduce tobacco use
among youth and young adults. Its president and CEO Koval told ThinkProgress that at the time of the settlement, 23 percent of
high school students smoked. Since that time, with the advent of the Truth campaign and other things, only 8 percent of young
people smoke cigarettes [as of last year]. With the steep decline, she says, it is possible that the effort is now in the endgame
and that this generation has the power to be the generation that ends smoking. Opponents of the gun industry quickly seized on
the tobacco settlement as an opportunity. A December 1998 New York Times story noted that more than a dozen cities have
either sued the gun industry or are preparing to, in a growing campaign to ultimately win in court the handgun controls that gun
interests have kept them from winning in state legislatures and Congress. Alex Penelas, then-mayor of Floridas Miami-Dade
County, called the success of the tobacco litigation a ray of hope for efforts to send the bill for gun deaths and injuries to the
gun makers. In late 1999, the Clinton administration announced it would join the efforts: The Department of Housing and Urban
Development (HUD) vowed to pursue a lawsuit against the firearms industry, on behalf of public housing authorities who spent
billions annually trying to protect residents from gun violence. Though gun rights advocates howled that these suits were about
driving companies out of business, President Clinton said the aim was not to bankrupt manufacturers and dealers but to make
them be more careful about with whom they deal, change irresponsible marketing practices, and make some safety design
changes. The gun lobby was unconvinced and one company decried the effort as tantamount to harassment. The approach
showed early dividends. In March 2000, Smith & Wesson agreed to a settlement that included a promise that the company would
provide safety locking devices, invest in smart gun technology to limit use to the proper owner, limit magazine capacity for its new
firearms, cut off dealers and distributors with a history of selling to criminals, and prevent authorized dealers from selling at gun
shows where any arm sales are permitted without background checks. The NRA decried the Smith & Wesson sell-out as an act
of craven self-interest. The group wrote at the time that the true intent of this agreement is to force down the throats of an
entire lawful industry anti-gun policies rejected by the Congress, rejected by legislatures across America, and rejected by the
judges who have dismissed their lawsuits in whole or in part nearly without exception. And it moved swiftly to ensure that others
would not follow. Lisa Graves, executive director of the Center for Media and Democracy, told ThinkProgress that the NRA was
very afraid of the parallel between gun litigation and tobacco litigation, so it preempted that. Through the American Legislative
Exchange Council (ALEC) the secretive free-market lobbying group that brings together conservative politicians and major
corporate interests including the tobacco and gun lobbies it pushed a Defense of Free Market and Public Safety Resolution to
hurt Smith & Wessons ability to sell to law enforcement. ALEC helped to try to punish the one component of the industry that
agreed to these measures, Graves recalled, discouraging local police from buying guns from Smith & Wesson for daring to go
along with safety [measures] designed to keep kids safe. When the NRAs preferred candidate, George W. Bush, was inaugurated
in January 2001, his new HUD secretary Mel Martinez quickly ended the departments involvement in the lawsuits (the NRA
strongly endorsed him three years later in his campaign for U.S. Senate in Florida). ALEC and the NRA worked at the same time to
successfully encourage many states to prohibit local lawsuits against the gun and ammo industries. Next, the NRA and its
Congressional allies set about eliminating the threat of state or local action, once and for all. In 2005, Bush signed the Protection of
Lawful Commerce in Arms Act, which effectively shielded the gun industry from legal liability when their products are used in
criminal and unlawful activities. Then-Rep. Melissa Hart (R-PA) gave a House floor speech in support of the law and against antifreedom lawsuits, at times repeating the NRAs talking points verbatim. Since 1998, dozens of municipalities and cities have filed
suits against Americas firearms industry, somehow alleging that the manufacturer of a firearm can be responsible for the acts of
criminals. These suits, following the model of the tobacco litigation, attempt to push the gun manufacturers into court to force a
settlement, a large cash award, or cessation of a business, she said. Firearm manufacturers have a time-honored tradition of
acting responsibly. They therefore should not be subjected to these frivolous suits. NRA executive vice president Wayne LaPierre
lauded it as the most significant piece of pro-gun legislation in twenty years. What we witness today is the culmination of a
seven-year effort that included a comprehensive legislative and election strategy, NRA chief lobbyist Chris W. Cox said at the
time. We worked hard to change the political landscape to pass this landmark legislation. As always, our members were up for the
task. Key electoral victories in 2000, 2002, and 2004 helped pave passage of this law. A decade later, the law has been used to
stop virtually all efforts to hold gun companies liable in court. I think that, had the really powerful litigation run its course, we
would have had the same success on guns as on tobacco, Graves said. That tobacco litigation was historic They were able to
make some substantial progress and change the future having information out there, showing how evilly the tobacco companies
were behaving. So there was an effort to stop that for guns, which have huge number of deaths and injuries. We havent seen the

same progress as you would have had these been allowed to go forward. n 1949, a TV ad boasted that more doctors smoke
Camels than any other cigarette. Decades of research on smokings health effects was required to counter the industrys lies
about the dangers of smoking, but also to figure out how to help people break their addiction to nicotine. In 1964, U.S. Surgeon
General Luther Terry issued a groundbreaking report on smoking and health, identifying a nearly 70 percent increase in the
mortality rate of smokers over non-smokers. A bipartisan array of Terrys successors continued researching the health impacts and
effective ways to reduce smoking. The National Institutes of Health (NIH) has also done extensive research on tobacco and how to
stamp out smoking, including targeting high-risk groups like LGBT people, hipsters, low-income African Americans, and Native
Americans. Chris Bostic, deputy director for policy for Action on Smoking & Health (ASH), says this research has been vital to
groups like his. Its nice to have facts on our side and we couldnt do the research ourselves. Were not scientists; these are big
budget research projects. He noted that funding from the National Cancer Institute and other parts of NIH have put a lot of
grants [on] two sides, to keep people from starting and to get people to want to quit and help them be able to quit. Thanks to a
1996 law, pushed by the NRA and one of its life members, then-Rep. Jay Dickey (R-AR), the federal government does not do the
same kind of in-depth research on gun violence and its prevention. The Dickey Amendment stipulated that no funds made
available for injury prevention and control at the Centers for Disease Control and Prevention may be used to advocate or promote
gun control. A 2012 appropriations law put similar restrictions on NIH funding for that year. Though the NRA claims this was not its
intent, the effect of the amendment was not simply that the CDC did not advocate for gun control, it stopped the Centers from
doing almost any research on gun violence. And, according to a 2011 New York Times story, before the few remaining firearmrelated studies funded by the CDC get published, the NRA gets a heads up as a courtesy. Ted Alcorn, research director at
Everytown for Gun Safety, told ThinkProgress in an email that his organizations research has found that after the gun lobbys
attacks on the Centers for Disease Control in the mid-1990s, the agencys funding for public health research on gun violence fell
more than 95 percent and publications in the field dried up. Though groups like Everytown have worked to fill the gap, the lack of
federal research has made progress on gun safety even more challenging. Among those who now worry that the Dickey
Amendment may have hampered lifesaving research: Dickey himself. After the Oregon college shootings in early October, Dickey
told NPR that it and other similar tragedies have made him regret not making the restrictions on the CDC narrower: Ive gone
back through it in my mind to say, what could we have done, and I know what we couldve done. We couldve kept the fund alive
and just restricted the expenditure of dollars. Dickey recalled that because of auto safety studies, the little barricades were set
up between the interstate to stop head-on collisions, which enormously reduced head-on collisions while continuing to allow cars
to travel on highways. With more research on preventing gun deaths, he speculated, we could do the same in the gun
industry.The effect is it makes it a lot harder to enact smart gun laws, Law Center to Prevent Gun Violence senior staff attorney
Laura Cutilletta said in an interview. If you dont have research showing theyre effective, it makes it harder for legislators who do
want these solutions to be able to move them forward and makes it a lot easier for the NRA and gun rights advocates to poke
holes in policy ideas. She noted that the gun lobby often dismisses proposals by arguing that theres no research to prove it
works, but never seems to mention that there is no research because of their own tactics. And when President Obama
nominated Dr. Vivek Murthy, a supporter of increased federal funding for gun violence research and of NRA-opposed gun violence
reduction measures, to be Surgeon General in 2013, the NRA tried to block him and helped delay his confirmation for nearly a
year. Today, much of the country has adopted smoke-free workplace protections, which has been a major help in reducing
smoking. ASHs Bostic explained that smoke-free places has been very successful. Look at a map: the states with more stringent
smoke-free air laws (that have been around longest) correlate to low consumption, he observed. Its had such an impact
because, one, if people cant smoke much of their day, its much easier to quit and most smokers (70 percent) do want to quit
and have tried but couldnt and, two, it de-normalizes smoking. There are places where kids, 15 or younger, have never seen
anyone smoke in person, only on TV and movies. The tobacco industry has consistently fought these restrictions often
partnering with the other NRA, the National Restaurant Association but they have become the national norm nonetheless. The
effort to keep workplaces free from guns, on the other hand, has been significantly more challenging. The NRA opposes almost all
gun-free zones even schools. In addition, it has pushed heavily to prohibit colleges and universities from enacting policies that
stop students from carrying guns on campus attempting to protect what it calls the right to self-defense. It boasts that for the
better part of a generation, weve been working to eliminate state laws that make it either difficult or impossible to legally carry a
concealed handgun for protection while away from home. When we started, 40 states had those kinds of laws. Today, only eight
states and the District of Columbia fit that category. Of course, were continuing to try to get that number to zero. ALEC has
pushed to eliminate the restrictions in the remaining states, through a model bill for state legislatures called the Campus

After each mass shooting, it has become the

norm for gun-rights advocates to suggest that gun-free
zones are to blame for the death toll. The standard line
from the NRAs LaPierre has been that the only thing
that stops a bad guy with a gun is a good guy with a
gun, and one pro-gun Colorado legislator argued, when
you have a gun-free zone, its like saying, Come and get
me.' A 2012 Mother Jones examination of mass shootings found this argument to be largely false, for even as the NRA has
successfully reduced gun-free zones, armed good guys have simply not taken out mass shooters. Still, at places like the
Personal Protection Act.

University of Texas, people carrying dildos will soon be punished, while those carrying guns into classrooms will not be. While
smoke-free zones have kept millions of Americans safe from secondhand smoke and reduced smoking, the NRA has opposed gunfree zones in airports, churches, government buildings, and even bars. ASHs Bostic says one thing has proven far and away the
most effective and easily implemented interdiction to reduce tobacco consumption, especially among kids: Tax increases. As of
October 2015, the average state tax on a pack of cigarettes is $1.60 per pack. The federal government adds another $1.01 per
pack in taxes, bringing the average price for a 20-cigarette packet up to about $6.25. For a pack-a-day smoker, the expense would
be more than $2,000 annually, a deterrent for many. Bostic notes that this deterrent is especially helpful at keeping those under
age 18 from becoming regular smokers. If theyre underage, [they typically] go to places that will sell cigarettes without an ID,
have older siblings or friends buy for them, or steal them from parents. The higher the cost per pack, the less likely theyll have
the money to buy cigarettes illegally and the more likely parents will notice a half-a-pack missing, he observed. As prices go up,
smoking rates decrease. And the states with the higher taxes on cigarettes almost always have lower sales than states with lower
cigarette taxes. Comedian Chris Rock has famously joked that the solution to gun violence is making bullets less affordable. I
think all bullets should cost five thousand dollars five thousand dollars per bullet You know why? Cause if a bullet cost five
thousand dollars there would be no more innocent bystanders. While no U.S. jurisdiction has yet tried Rocks plan, localities like
Cook County, Illinois and Seattle have attempted to reduce gun violence by enacting sales taxes on guns and/or ammo. The NRA
denounced these efforts as misguided and burdensome and ineffective penalties on law-abiding gun owners, rather than
criminals who dont legally purchase firearms. (A comprehensive analysis by Mayors Against Illegal Guns found that most guns
used in recent mass shootings were, in fact, purchased legally.) The National Shooting Sports Foundation, the trade group for the
gun industry, suggested that taxing firearms is not even constitutional. The Seattle ordinance is nothing but a poll tax on the
Second Amendment and an effort to drive Seattles firearms retailers out of business, its senior vice president and general
counsel opined in August. His group and the NRA have filed a lawsuit to try to block the tax. Perhaps stronger than the poll tax
argument is the groups claim that the city of Seattle does not have the legal authority to pass any laws regulating firearms,
thanks to something called preemption. The gun lobby, with the help of ALEC, has gotten the state of Washington and all but a
handful of other states to pass laws blocking local governments from enacting any local regulations relating to guns. The Center
for Media and Democracys Graves explained that urban areas often have an increased sense of urgency to do something about

the gun violence plaguing cities and not necessarily smaller towns. While the NRA and its allies might not be able to win a
majority in these areas, they instead try to overrule them at the state level, on the bet that the legislators downstate or upstate
from more rural areas would be more gun-friendly. The bet worked in all but seven states. Mark Pertschuk, director of Grassroots
Change and its Preemption Watch project, told ThinkProgress that this approach was not invented by the gun lobby. State
preemption, as a national strategy for an industry, was invented [in 1985] by the tobacco industry when they succeeded in
passing state preemption of local smoking ordinances in Florida in a law, cynically called the Clean Indoor Air Act, he said.
Localities were no longer permitted to pass or keep existing restrictions tougher than the state law. And, he notes, it is not just the
gun lobby that is pushing for state preemption, but an array of other sectors, including alcohol, energy, and others, all actively
opposed to tougher health and safety protections. Although the issues are different fracking couldnt be more different than
firearms the strategies are for all practical purposes identical, Pertschuk said. Not similar identical. While it appears
unlikely to pass in the current Congress, Rep. Nydia Velzquez (D-NY) recently filed a bill to impose a $100 federal tax on all
firearms. Just 12 members, all in the Democratic minority, have co-sponsored it so far. The final major component in tobacco use
reduction, according to Bostic, is the conversation between patients and medical professionals about smoking. Talking about
smoking [with doctors and nurse practitioners] is a big predictor of willingness to quit and success in quitting, he explained. It
has to be more than just saying you shouldnt smoke, but also saying, heres what you can do, heres how I can help, heres what
I can prescribe.' The National Institutes for Healths smokefree.gov website urges smokers to talk to your doctor or pharmacist
about quit options. According to the CDC, research shows that counseling and medication are both effective for treating tobacco
dependence, and using them together is more effective than using either one alone. While the conversations doctors have with
patients about smoking relate to cessation and the ones they have about guns relate to safety, the Law Center to Prevent Gun
Violences Cutilletta says they are no less important. According to one study, 64 percent of individuals who received verbal
firearm storage safety counseling from their doctors improved their gun safety practices, she said. Its not about having guns,
Cutilletta insisted, its about storage. How is the gun stored? Is it in a home with children? Loaded or unloaded? Locked? Is
ammunition stored separately? Thats the kind of question doctors can ask and talk about. But, with the support of the NRA,
Floridas legislature passed legislation in 2011 to chill even those conversations. The Privacy of Firearm Owners Act serves as a
statewide gag-rule, prohibiting doctors in the Sunshine State from bringing up guns with their patients. In addition to insisting that
inquiries regarding firearm ownership or possession should not be made, the law also prohibits the medical community from
discriminating against patients on the basis of firearm ownership or possession affording gun owners a public accommodation
protection the state does not even afford LGBT people and allows for disciplinary action for doctors who violate its provisions.
Other states have contemplated similar laws and taken smaller steps, though none have gone quite as far as Florida. The nonprofit
National Physicians Alliance, which fights for professional integrity and health justice, objects vociferously to the attempts to
impede free speech between patients and physicians. Dr. William Jordan, the alliances president, told ThinkProgress that his
medical students often are wary of uncomfortable conversations with patients about topics like sexual history and gun ownership.
We need to overcome the discomfort, he said, and when you have a law on the books that threatens taking away someones
medical license or other penalties, it has a chilling effect on whether people are willing to go there with their patients. He pointed
to the oil and gas industry use of similar tactics to restrict what Pennsylvania doctors can discuss with patients regarding the oil
and gas extraction method commonly referred to as fracking. Jordan also noted that this is one area where the aforementioned
lack of research has been evident: We dont have research funding on these things to collect data, to draw clear conclusions [on
the Florida laws impact]. We dont have polling data to know how many practicing physicians know about the law, even. Chris
Bostic, deputy director for policy for Action on Smoking & Health (ASH), noted that the decline in smoking rates in recent decades
has resulted from a series of factors. The overriding thing, he told ThinkProgress, is that there is no silver bullet, no one policy
or regulation that solves the tobacco epidemic. Its a recipe, not a menu. States dont go and choose one, [you] have to do all to
really have an impact. But the gun lobby has gone to great lengths to take every item in the recipe off the shelves. Jordan
believes that the only way to reduce gun violence is through grassroots organizing. Unfortunately, the tragedies that make big
news come periodically and spur some action, but not necessarily enough to keep a sustained effort going. Its really up to
community leaders, at the local level, to be going to elected representatives and talking about these issues. But Grassroots

every step the gun lobby takes makes it

harder for citizens to mobilize. By preempting local
authority, what youre really doing is taking away any
chance of building a powerful grassroots movement. In a
handful of places like Hawaii, California, and New York,
where there isnt preemption, there are powerful and
successful grassroots movements on guns. But there
arent powerful movements in almost any of the other
states. Without the ability to use the tools that worked
against tobacco, activists have no purchase. The only way to make
Changes Mark Pertschuk warns that

sure this does not happen with other health and safety issues, Pertschuk noted, is for citizens to educate their state legislators
about why preemption is so bad, and then to work proactively, at local level, on supporting democracy.

Federal court clog collapses the federal judiciary overburdens

dockets, expansion can't keep pace
Oakley 96 ~John B. Oakley, Distinguished Professor of Law Emeritus US Davis School of Law, 1996 The Myth of Cost-Free
Jurisdictional Reallocation~
Personal effects: The hidden costs of greater workloads. The hallmark of federal justice
traditionally has been the searching analysis and
thoughtful opinion of a highly competent judge, endowed
with the time as well as the intelligence to grasp and
resolve the most nuanced issues of fact and law. Swollen
dockets create assembly-line conditions, which threaten
the ability of the modern federal judge to meet this high standard of quality in federal

adjudication. No one expects a federal judge to function

without an adequate level of available tangible resources:
sufficient courtroom and chambers space, competent
administrative and research staff, a good library, and a
comfortable salary that relieves the judge from personal
financial pressure. Although salary levels have laggedencouraging judges to engage in the limited
teaching and publication activities that are their sole means of meeting such newly pressing financial obligations as the historically
high mortgage expenses and college tuitions of the present decadein the main, federal judges have received a generous
allocation of tangible resources. It is unlikely that there is any further significant gain to be realized in the productivity of individual
federal judges through increased levels of tangible resources,13 other than by redressing the pressure to earn supplemental

On a personal level, the most important resource

available to the federal judge is time.15 Caseload
pressures secondary to the indiscriminate federalization of state law are stealing time
from federal judges, shrinking the increments available
for each case. Federal judges have been forced to
compensate by operating more like executives and less
like judges. They cannot read their briefs as carefully as
they would like, and they are driven to rely unduly on law
clerks for research and writing that they would prefer to
do themselves.16 If federal judges need more time to hear and decide each case, an obvious and easy solution
is to spread the work by the appointment of more and more federal judges. Congress has been
generous in the recent creation of new judgeships,17 and
enlargement of the federal judiciary is likely to continue
to be the default response, albeit a more grudging one, to judicial concern over the caseload
consequences of jurisdictional reallocation. Systemic effects: The hidden costs of adding more judges. Increasing
the size of the federal judiciary creates institutional
strains that reduce and must ultimately rule out its
continued acceptability as a countermeasure to caseload
growth. While the dilution of workload through the
addition of judges is always incrementally attractive, in
the long run it will cause the present system to collapse. I am not
income.14

persuaded by arguments that the problem lies in the declining quality of the pool of lawyers willing to assume the federal bench18
or in the greater risk that, as the ranks of federal judges expand, there will be more frequent lapses of judgment by the president
and the Senate in seating the mediocre on the federal bench.19 In my view, the diminished desirability of federal judicial office is
more than offset by the rampant dissatisfaction of modern lawyers with the excessive commercialization of the practice of law.
There is no shortage of sound judicial prospects will ing and able to serve, and no sign that the selection processnever the
perfect meritocracyis becoming less effective in screening out the unfit or undistinguished. Far more serious are other

Collegiality among
judges, consistency of decision, and coherence of doctrine
across courts are all imperiled by the growth of federal
courts to cattle-car proportions. Yet the ability of the
system to tolerate proliferation of courts proportional to
the proliferation of judges is limited, and while collapse is
not imminent, it cannot be postponed indefinitely. Congress could
restructure the federal trial and appellate courts without imperiling the core functions, but the limiting
factor is the capacity of the Supreme Court to maintain
overall uniformity in the administration and application of federal law.
institutional effects of continuously compounding the number of federal judges.

That Court is not only the crown but the crowning jewel of a 200-year-old system of the rule of law within a constitutional

tinkering with its size or jurisdiction would raise the

most serious questions of the future course of the nation.
democracy, and any

Separation of power solves unaccountable decisions to go to war

causes extinction. Adler 96
Adler 96 (David, professor of political science at Idaho State, The Constitution and Conduct of American Foreign Policy, p. 23-25)

The structure of shared powers in foreign relations serves to deter

the abuse of power, misguided policies, irrational action,
and unaccountable behavior. As a fundamental structural matter, the
emphasis on joint policymaking permits the airing of sundry
political, social, and economic values and concerns. In any
event, the structure wisely ensures that the ultimate policies will
not reflect merely the private preferences or the short-term
political interests of the president. Of course this arrangement has come under fire in
the postwar period on a number of policy grounds. Some critics have argued, for example, that fundamental political and
technological changes in the character of international relations and the position of the United States in the world have rendered
obsolete an eighteenth-century document designed for a peripheral, small state in the European system of diplomatic relations.

it has been asserted that quick action and a single,

authoritative voice are necessary to deal with an
increasingly complex, interdependent, and technologically linked world capable of
massive destruction in a very short period of time. Extollers of presidential dominance have also
Moreover,

contended that only the president has the qualitative information, the expertise, and the capacity to act with the necessary
dispatch to conduct U.S. foreign policy.

These policy arguments have been reviewed,

discredited, elsewhere; space limitations here permit only a brief commentary. Above all else, the implications
U.S. power and action in the twentieth century have brought about an even greater
need for institutional accountability and collective
judgment that existed 200 years ago. The devastating, incomprehensible
destruction of nuclear war and the possible extermination
of the human race demonstrate the need for joint
participation, as opposed to the opinion of one person, in
the decision to initiate war. Moreover, most of the disputes at
stake between the executive and legislative branches in
foreign affairs, including the issues discussed in this chapter, have virtually nothing to do
with the need for rapid response to crisis. Rather, they are concerned only
with routine policy formulation and execution, a classic example of the authority
exercised under the separation of powers doctrine. But these functions have been fused by the
executive branch and have become increasingly unilateral, secretive,
insulated from public debate, and hence unaccountable. In
the wake of Vietnam, Watergate, and the Iran-Contra scandal,
unilateral executive behavior has become even more
difficult to defend. Scholarly appraisals have exploded arguments about intrinsic executive expertise and
and
of

wisdom on foreign affairs and the alleged superiority of information available to the president. Moreover, the

inattentiveness of presidents to important details and the effects

of group-think that have dramatized and exacerbated the relative
inexperience of various presidents in international relations have also devalued
the extollers arguments. Finally, foreign policies, like domestic policies, are a reflection of values. Against the strength of
democratic principles, recent occupants of the White House have failed to demonstrate the superiority of their values in
comparison to those of the American people and their representatives in Congress