Wrestling Questions

Is the constitutional system of checks and balances an obstacle to effective government?

The system of checks and balances makes each of the three branches of the federal government dependent on the others to exercise its powers, for example the power of the president to veto congressional legislation and the power of Congress over presidential monies. Congress is checked ‘internally’ by its composition of two equal chambers, and it is further checked by the powers reserved to the states.

Criticisms of the system of checks and balances include:

• liberals believe that there are too many checks and balances, with the consequence that government can become gridlocked and important change impossible to enact
• conservatives believe that the system has been inadequate to prevent the expansion of the federal government at the expense of the states, and of the power of the Supreme Court
• when the same party is in control of both the presidency and Congress, the checks and balances may cease to be effective defences of the system of checks and balances include:
• the survival of the system shows that it has served its purpose of preventing one branch of government achieving disproportionate power, and of diffusing short term swings in popular sentiment
• change can occur but it is dependent on broad-based enduring support.

Is there disagreement about how effectively the constitution protects freedom?

Candidates should demonstrate an awareness that Americans from different ideological positions have contrasting views on how they define freedom and how effectively constitutional mechanisms to protect freedom have operated.

• Conservatives, who define freedom in negative terms (non-interference) believe that the Constitution was designed to limit the size and power of government, especially the national government, and that it has been largely ineffective at doing so. Each national crisis since the 1930’s has seen the growth of the national government with a proportionate disempowerment of the states. This is a dynamic that is inimical to freedom from interference from a government that feels remote
• Liberals, who define freedom in positive terms (fulfilment of potential) believe that the Constitution was designed to protect rights and that it has had a mixed record at best. Infringement of rights has often been the result of bigotry at local level and the Constitution has often made it difficult for the national government to intervene
• Centrists argue that the Constitution strikes the best possible balance between freedom and effective government. There have been times when this balance has been lost, such as when Japanese Americans were interned during World War II, but it has always been restored

Is the US system of checks and balances ineffective?

Candidates should demonstrate an understanding of the constitutional checks and balances of all three branches of government, and how well these work in practice, reaching a balanced judgement on whether they represent an obstacle to effective government. This could include:

• Congress: virtually all actions of the President are subject to Congressional oversight. “Power of the purse”, control over the budget is arguably the most powerful tool Congress has in relation to the Executive branch of government. Appointments to the Supreme Court, although initiated by the President, would be subject to the advice and consent of the Senate.
• President: the principal powers of the President in relation to the other branches of government would be the ability to veto Congressional legislation and to nominate Justices to the Supreme Court. Because of the growth of the USA as a world power, beyond the expectations of the founding fathers, checks and balances on the President in the field of foreign affairs has arguably been of limited effectiveness.
• Supreme Court: originally given few constitutional powers and provided with no constitutional checks on other branches. However, once it acquired the power of Judicial Review, enabling it to declare laws and Presidential decisions unconstitutional, the judiciary gained one of the most powerful checks available to any of the branches of government.
• Evaluating the interaction between all three branches of government (not only the Executive and the Legislature) candidates should recognise that contrasting conclusions are reached by different ideological viewpoints on how well the constitutional design works.
• There are three main ideological perspectives on how well the system of checks and balances works. Many Americans believe that system enables each branch of government enough power to govern effectively but with powerful limitations to stop them from being able to misuse that power and become oppressive. On the right, many feel that the system gives too much power to the Federal Government, especially the President. On the left, many feel that the elected branches are too restrained to effectively protect vulnerable minorities. Candidates will be assessed on their ability to evaluate the effectiveness of the system of checks and balances from these viewpoints.

Are Members of Congress are out of touch with the people who elect them?

Evidence that members of Congress are out of touch with their electorates includes:

• ‘safe’ states and gerrymandered districts means that many senators and representatives face no serious challenge in the general election, and the only threat to their security is through a primary challenge; consequently the only constituency they have an incentive to represent is primary voters
• the high cost of elections deters challengers and means that senators and representatives are beholden to donors rather than voters
• lack of term limits creates an unrepresentative elite
• consistently low approval ratings of Congress as an institution
• the House changing hands in two of the last three elections suggests a high level of voter discontent

Evidence that members of Congress are not out of touch with their electorates includes:

• high rates of incumbency success, typically over 90% in the House and 80% in the Senate, suggest a high level of voter satisfaction
• senators and representatives make considerable efforts to keep in touch with their constituents
• senators and representatives devote much of their legislative energy to obtaining benefits for their states and districts
• elections every two years in the House mean representatives have to stay in touch to remain electable
• senators and representatives often have high individual approval ratings

Are Members of Congress are more concerned with local issues than national or international issues?

Candidates should demonstrate an understanding that there are political forces that lead to members of  Congress prioritising local issues over matters of national importance, such as:

• Elections every two years that mean that members of Congress have to demonstrate that their term has been productive to the community they serve.
• This leads to pork barrel politics
• It also makes them reluctant to vote to increase taxes to pay for federal spending, leading some commentators to argue that deficit spending in the USA is a consequence of the priorities of the legislators

However, Congress has many responsibilities that are often not affected by local concerns, such as:

• The oversight of foreign policy and the implementation of federal law
• Also, Senators can have a moderating influence as they have six year terms of office
• Congressional elections have become increasingly ideological in character, reducing the importance of appealing mainly to local concerns

Is Congress still a powerful body?

Evidence that Congress is no longer a powerful body includes:

• complicated legislative process means far more laws are rejected than passed
• compounded by growth of partisanship which makes both parties unwilling to compromise
• weak party control reduces the likelihood of a policy programme being enacted
• parochialism makes Congress often incapable of considering the national interest
• ability of the president to circumvent Congress through executive orders and recess appointments
• ability of the president to set the tone and direction of foreign policy, and to deploy armed forces without congressional approval

Evidence that Congress remains a powerful body includes:

• continued dependence of the president on Congress for all legislation and money
• continued dependence of the president on Congress for all appointment confirmation and treaty ratification
• continued ability of Congress to override presidential vetoes
• sometime willingness of Congress to set the policy agenda, e.g. the ‘Contract with America’

Does Congress still have a meaningful foreign policy role?

The constitution sets out a clear role for Congress in foreign policy, and, amongst the powers it grants, are those to provide for the common defence, to declare war, to regulate commerce with foreign nations, to raise and support armies, to confirm ambassadors and to ratify treaties.

Constitutionally then, Congress shares responsibility for foreign policy with the president, and this division sets up what has been termed an ‘invitation to struggle’ for control of foreign policy.

Arguments that Congress retains a meaningful foreign policy role include:

• Congress continues to control all financing of the armed forces and arguably brought the Vietnam War to an end through its withdrawal
• Congress’ power to declare war was reaffirmed by the passage of the War Powers Act
• congressional leaders sometimes attempt to run an alternative foreign policy to the president’s, e.g. the Helms Burton Act passed during the Clinton presidency, and the visit to Syria by Speaker Pelosi in 2007
• Congress can choose to withdraw ‘fast track’ trade authority from the president and has not currently granted it to President Obama
• significant presidential treaties have been rejected by the Senate, e.g. the Comprehensive Test Ban Treaty in 1999

Arguments that Congress no longer has a meaningful foreign policy role include:

• since World War Two, the executive branch has had responsibility for the tone and direction of foreign policy
• the president has a vast foreign policy bureaucracy to advise him and implement policy
• the president’s power as commander in chief means he can deploy armed forces without congressional authorisation, such as in the attacks on Libya in March 2011, and even in the face of an explicit refusal by Congress to authorise it, e.g. the Kosovo campaign in 1999
• congressional attempts to exercise the power of purse, e.g the Democratic Congress’s attempts in 2006-08 to impose a timeline for withdrawal from Iraq, usually end in failure
• congressional interventions, e.g. the repeated attempts to pass resolutions on the Armenian ‘genocide’, are often inimical to the national interest
• the president can bypass the Senate’s powers of ratification and confirmation

Do presidents only have the power to persuade?

Candidates should demonstrate their understanding of both the limitations and instruments at the disposal of the President when attempting to implement a policy agenda.

The limitations, include:

• Assembling a policy-making team of people who fulfil the requirements to run the executive departments and agencies is almost an impossible challenge
• The smooth running of the executive branch in a way which meets the policy requirements of the President is hindered by the fact that the branch cannot be reorganised without the consent of Congress
• Some of the most important Executive agencies, such as the Federal Reserve, are headed by people beyond the control of the President
• The President has limited ability to influence the passage of legislation, which is the primary way that proposals become policy
• Even if policy is passed which meets the President’s needs and wishes, the Federal Bureaucracy is often reluctant to overhaul programmes which it may have been developing over an extended period for an administration which will not be in office for more than eight years

The range of instruments, both official and informal, which can help him to achieve his policy goals, include:

• Even if the cabinet, as a body, has shortcomings as a policy-making instrument, it contains influential “top tier” members in whom the President usually has great confidence and who help him formulate policy on a bilateral basis
• Since 1939, the President has had the support of the Executive Office of the Presidency (EOP) to co-ordinate the Executive branch and monitor the implementation of presidential priorities
• The spoils system enables the President to appoint, to the Federal bureaucracy, political sympathizers to help supervise the implementation of policy
• The President is able to use the power of veto and, equally importantly, the threat of a veto to put pressure on Congress to pass legislation in a form which will be found acceptable
• The President is also able to use the discretion available over how and where federal resources are spent, to forge alliances and build Congress support of proposals
• In recent years, the Vice President has been increasingly used to bolster party support for the administration’s policies
• Above all, some Presidents have made skilful use of their prestige, as Head of State, to undermine those opposing his policy agenda by creating an impression that they are motivated by ideological considerations or even narrow self-interest while he represents the interests of the nation.

There are two main viewpoints on this question. One suggests that, despite constitutional limitations, the President is immensely powerful, especially if political conditions are conducive and the occupant of the position is skilled at making the most of the available instruments. This is the “imperial presidency” theory, or a version of it. The other emphasises the restrictions imposed on the President, far more than many other Heads of Government. This is the “imperilled presidency theory, or a version of it. Candidates will be assessed on their ability to evaluate presidential power from these viewpoints.

Is the power of the President limited to the power to persuade?

Evidence that the power of the president is limited to persuasion includes:

• the president is dependent on Congress for all legislation and money
• separation of powers means congressmen have their own mandate, and their willingness to support the president is more conditional than in a parliamentary system – fundamentally, it will depend on how far it will aid their own election prospects
• even a Congress controlled by his own party may ignore – e.g. the Bush second term – or defeat – e.g. the Clinton health care reforms – the president’s agenda
• consequently the president needs to persuade members of Congress that support for him is in their interests

Evidence that the power of the president extends beyond persuasion includes:

• mandate of the president may be such – e.g. President Johnson in 1964 – that the president does not need to persuade Congress to adopt his agenda
• ability of the president to circumvent congress through executive orders and recess appointments
• use of signing statements to implement legislation as the president directs, sometimes in direct contravention of Congress’ expressed intent
• if persuasion fails, the president can veto legislation
• in several aspects of foreign policy, the president can act unilaterally

Do Presidents control foreign policy?

The American constitution divides responsibility for foreign policy between the president and Congress, and hence extends ‘an invitation to struggle’.

Since the end of World War Two, and the emergence of America as a world superpower, the president has assumed control for the overall direction of foreign policy. Nevertheless, Congress still retains a significant role; the broad pattern in the president’s relationship with Congress has been that, in periods of tension or conflict abroad, Congress will defer to the president, but if there is no immediate threat to national security, it will attempt to assert its interests. The federal bureaucracy and public opinion may also restrain the president.

Evidence which suggests that the president has come to dominate foreign policy includes:

• US v Curtiss-Wright, establishing the principle of executive supremacy, and the subsequent reluctance of the courts to take up cases involving foreign policy.
• The use of executive agreements to circumvent the need for Senate approval of treaties
• President Truman’s dispatch of forces to Korea without congressional authorisation
• President Johnson’s use of the Gulf of Tonkin resolution to escalate the war in Vietnam
• The massing of 500,000 troops in Saudi Arabia before President G.H. Bush sought a congressional vote on the first Gulf War.
• The bombing campaign in Kosovo, the first major use of force conducted despite an explicit refusal by Congress to authorize it.
• The manipulation of the timing of the vote on the second Gulf War

Evidence which suggests that Congress has a significant role includes:

• The eventual refusal to continue funding brought the war in Vietnam to a close
• The legislation passed in the aftermath of Vietnam, e.g. the War Powers Act
• The sanctions on South Africa passed over President Reagan’s veto in 1986.
• The legislation passed by the Republican Congress despite presidential reluctance, e,g, the Helms-Burton Act 1995 and the Iraq Liberation Act 1997
• The refusal to renew fast track trade authority for President Clinton in 1994 and President G.W. Bush in 2007.
• The rejection of the Comprehensive Test Ban Treaty in 1999.
• The attempts by congressional leaders to run an alternative foreign policy to the president’s, e.g. Nancy Pelosi’s visit to Syria in 2007.

There are other restraints:

• Public opinion – post-Vietnam, presidents have been cautious about committing ground troops to conflict, and policy may reflect an anticipation of unfavourable public reaction.
• Federal bureaucracy – the two federal departments most concerned with foreign policy, Defense and State, will have their own agenda, which may be inconsistent with the president’s. Additionally, conflict between them may hamper him.
• Supreme Court – in a series of cases, the court ruled against G.W.Bush administration’s policy on detention of terrorist suspects.

Can presidential careers ever  live up to expectations?

This question invites discussion of whether there is too big a disparity between the expectations of the presidency and what any actual president can realistically achieve, given the restraints upon him.

Arguments that the expectations and restraints are too great include:

• during the Cold War, the president assumed the role of the ‘leader of the Free World’, at the same time as the growth of television greatly increased his public exposure
• the need for any presidential candidate to overstate the potential of the office and generate inflated expectations
• the need for any first term president to focus on re-election only just after halfway into their first term (President Obama launched his re-election campaign in April 2011)
• the almost inevitable decline of a second term president into lame duck status
• dependence on Congress for all finance and legislation
• limited time and political capital
• the power of the federal bureaucracy
• the power of pressure groups
• the president is held responsible for parts of the system he has little or no control over, e.g. the aftermath of the Deepwater Horizon explosion in the Gulf of Mexico in 2010

Arguments that the president has the resources to become a success include:

• the ability to evade congressional control, e.g. through executive orders and signing statements, to the extent that the president may become ‘imperial’
• even working with a Congress controlled by the opposition party, the president can achieve favourable poll ratings, e.g. President Clinton from 1994- 2000
• relative autonomy in foreign policy
• as head of state, the office of president commands respect; the public want their president to be a success

Are there effective checks on presidential power?

Candidates should demonstrate an awareness of the ways in which Congress checks the executive, including:

• the confirmation of appointments
• ratification of treaties
• oversight of government departments
• investigations and impeachment
• consideration of presidential legislative proposals
• the congressional power to declare war

There are a range of valid viewpoints on the effectiveness of congressional checks but because of the number of loopholes the President benefits from in respect of foreign affairs there is wide consensus that Congress is more effective in domestic affairs.

The judiciary has only one check – the power of judicial review over presidential actions. However, these have proved significant cases ranging from the Pentagon Papers (effectively ending Nixon’s presidency) to declaring the line item veto to be invalid. In recent years the Supreme Court has extended its role by over-ruling the President’s decision to hold detainees indefinitely at Guantanamo Bay and use military tribunals to try them

Should the Supreme Court interpret the Constitution and its amendments by establishing their original meaning when they were adopted?

There are a number of schools of judicial interpretation which are linked by a belief in the importance of the original meaning of the text itself. ‘Strict constructionism’ and ‘originalism’ are among the two best known: the former emphasises the literal meaning of the text, the latter, whose best known exponent is Antonin Scalia, seeks to establish what a ‘reasonable’ reading contemporary to the adoption would have been.

Arguments for interpreting the constitution in this way include:

• the constitution is law: every other law is ‘dead’ and doesn’t change its meaning over time; if anything, as a statement of fundamental principles, there is more reason to keep the constitution unchanged
• it is the most objective standard available – a ‘living constitution’ approach means that the constitution becomes a reflection of the values of the current justices
• it makes the court’s judgments more predictable and stable
• the amendment process is available if society’s values change
• rights which judges ‘find’ in the text are likely to be seen to lack legitimacy

Arguments against this approach include:

• the constitution was written in broad terms as the framers themselves envisaged the need for it to evolve
• the framers misjudged the amendment process to the constitution; the requirement of 2/3 majorities in Congress, and approval by ¾ of the state legislatures is too demanding, so that it becomes the responsibility of the court to bring it up to date
• society’s values do change and no one would want the framers’ view of e.g. ‘cruel and unusual punishments’ to be applied today
• originalism as currently practised is not consistent – e.g. no ‘originalist’ justice is critical of the decision in Brown v Topeka Board, when there is every indication that the framers of the 14^th amendment regarded it as consistent with segregated schools

Are Supreme Court justices ‘politicians in disguise’?

Candidates should demonstrate that they understand that there are factors which enable

Supreme Court justices to be ‘politicians in disguise’ if they so choose, but that there are also

factors which encourage them to avoid entering the ‘political thicket’.

Factors which enable justices to adopt a political stance include:

• The power of judicial review, which gives justices the right to overturn laws of Congress and state legislatures as well as the right to over-rule the actions of the President and state governors.
• As the highest court of appeal they are entitled to overturn decisions, with constitutional implications, of state courts, lower federal courts and reverse previous Supreme Court decisions
• Under the 9th Amendment they can create new constitutional rights, most famously the right of privacy in Roe v. Wade

Factors which inhibit justices from taking a political stance include:

• Court tradition: justices do not think of themselves as politicians and may refuse to rule on issues they see as overtly political. They make distinctions between their personal views and what the law requires
• Lack of enforcement power: their decisions have to enforced by the President or state governors who cannot always be relied upon to do so
• Public opinion: decisions which are clearly out of step with public opinion tend to be unsustainable
• Checks and balances in the constitution should lead to the appointment of justices whose views are moderate. Congress has the power to remove judges who have clearly exceeded their powers.

Candidates should weigh up the factors which impact on Supreme Court justices, using examples and cases to illustrate their points.

Insightful candidates may recognise that, while justices associated with left wing policies such as Earl Warren are most often associated with politically-charged judgements, right wing justices such as Scalia and Thomas can also be judicial activists.

One of the major issues in US politics is whether the judiciary wields undue power for an unelected body in a democracy. Advocates of judicial restraint argue that, over the past 200 years, judges have taken advantage of the vagueness of the Constitution, usurping the powers of the elected branches to award themselves far more power than the Founding Fathers intended. Advocates of judicial activism argue that the central purpose of the Founding Fathers and the Constitution was to protect individual rights and prevent oppressive rule and that courts have proved far more effective than elected politicians at applying these principles, especially in relation to unpopular minorities, thus acting as effective guardians of the Constitution. Candidates will be assessed on their ability to evaluate judicial power from these viewpoints.

Does the Supreme Court have too much power for an unelected body?

Judicial review gives the Supreme Court immense power over the constitution, and, in recent years, judges have become arbiters over a wide range of public policy, most famously desegregation and abortion.

This has given rise to a debate between conservatives, who believe that activist justices have gone far beyond the court’s intended powers, and liberals, who argue the court’s expanded role is necessary to preserve the constitution’s values.

Conservatives’ arguments include:

• The court, as an unelected branch, should adhere to the principle of legislative deference, i.e. it should only overrule legislation passed by the people’s elected representatives if it unambiguously violates the constitution.
• Because judicial review is not explicitly specified in the constitution, and the judiciary was envisaged by the framers as the ‘least dangerous’ branch, the court is effectively uncheckable.
• If, in overriding legislators, the court is seen to sanction a particular political viewpoint as ‘constitutional’, e.g. in its striking down of the New Deal legislation of the 1930s, then it undermines its own legitimacy.
• If some parts of the constitution are ambiguous, then – since it is impossible to show a clear violation – this should act as a brake on the expansion of judicial review, but instead, in the hands of liberals, has become the basis for it.
• Judges are expert in law, not social policy, and consequently judge-made social policy is often ineffective and unworkable in practice.

Liberals’ arguments include:

• For the constitutional values of liberty and equality to be upheld, the constitution needs to be a ‘living constitution’ and interpreted to meet the needs of modern society; if it is not, it will become increasingly irrelevant.
• The combination of a separated system of government and risk-averse politicians means that legislation in contentious areas is unlikely to be passed, and that, if the court does not act, access to basic rights could be denied indefinitely.
• Cases such as Plessy v Ferguson show that, if the court is willing to overturn only the most flagrant breaches of the constitution, basic rights will be denied.
• There are checks on the court; for example, Congress can (and has) initiated constitutional amendments in response to its decisions.
• Conservatives are inconsistent, as conservative judges are themselves willing to exploit constitutional ambiguities to advance their agenda, e.g. the Roberts court has struck down gun control legislation in cases such as McDonald v Chicago

Judicial activism cannot be justified.’ Discuss.

‘Judicial activism’ is a term which lacks precise definition, and is often used as a term of abuse for decisions with which the speaker or writer disagrees. Arguably, the most objective definition is that judicial activism is the overriding by the Supreme Court of a state or congressional law, or the reversal of one of the court’s own precedents; thus defined, judicial activism can be practised by both conservative and liberal justices, and cases such as Citizens United and Heller can arguably be seen as part a new era of conservative activism.

Arguments justifying judicial activism include:

• the principles of the constitution are clear, and it is the role of the court to protect them from dilution or erosion by other branches of government
• the court’s own decisions are not immune from error and must be reversed if necessary
• legislators are often risk-averse, and slow to act for fear of offending one group or another; consequently, important social change can only be achieved by the court taking the lead and striking down archaic legislation
• state laws in particular are likely to promote values which have long since ceased to be acceptable

Arguments attacking judicial activism include:

• the constitution is vague in many places and its provisions subject to interpretation; consequently, no one can claim a definitive knowledge of its meaning, and, as an unelected body, the court should defer to the judgment of the other branches
• as the court lacks the legitimacy of the elected branches, it should strike down legislation only if it is in flagrant breach of the constitution
• judges are not expert in social policy and, if they attempt to substitute their judgment for legislators’, it is unlikely to produce successful policy
• if justices are seen to use judicial review to advance their own policy preferences, they risk eroding the standing and authority of the court
• if the court reverses its own decisions, especially within a relatively short space of time, again there is a danger that its authority is undermined
• federalism is a cornerstone of the US constitution, and, in striking down state laws, the court is denying states the legitimate right to protect regional ways of life

A political, not a judicial institution.’ Discuss this view of the Supreme Court.

Arguments that the court is a political institution could include

• justices are nominated and confirmed by politicians; it is accepted that a president will nominate a candidate sympathetic to his agenda, and nominees will come to the confirmation process with a track record of judgments and/or writings suggestive of their ideological perspective.
• the power of the court through judicial review to declare the laws and actions of the elected branches unconstitutional inevitably gives their role a political element
• judicial interpretation cannot be value-free, and judicial activism imposes the political values of justices on the constitution
• the court is used for political ends; interest groups bring test cases and lobby the court through amicus curiae briefs
• justices’ decisions which cases to take reflect a value judgment as to which are important the judgment process itself is political; in the process of reaching a decision, justices will try to ensure their view prevails; they will form alliances against opponents, strike bargains and offer compromises
• judgments are not arrived at in a judicial vacuum; justices are aware of public opinion and the likely impact of their decisions

Arguments that the court is not a political institution could include:

• justices themselves claim to be ‘neutral umpires’ and that it is possible to apply the constitution to the cases they consider in a ‘restrained’ and non-political way
• many cases are decided by purely technical and legal considerations, and only a few high-profile cases have overtly political implications
• justices are constrained by precedent, which they are reluctant to overturn, and by the law itself
• justices may rule against their own stated preferences, e.g. Justice Kennedy in the Texas v Johnson judgment wrote “The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result.”

Can the Bill of Rights be respected while the threat of terrorism remains?

Attitudes to civil liberties at times of national crisis are broadly determined by ideology. Conservatives would tend to be more favourable to restrictions on liberties to protect national security, whereas liberals would claim that protection of liberty should continue to be a fundamental value.

Conservative arguments for attenuating the Bill of Rights include:

• Security is the highest priority of government, and consequently, measures such as investigating library records under the Patriot Act, ‘coercive interrogation’ of terrorist suspects, and trying terrorists in military courts are acceptable and necessary.
• The courts are available as a safeguard should any excessive measures be taken.
• Past erosions of liberty have not become permanent, and when they have been seen subsequently to be excessive, compensation has been given.

Liberal arguments for upholding the Bill of Rights include:

• The use of oppressive measures undermines America’s claim to be a beacon of freedom, and may have the effect of exacerbating the conditions which give rise to terrorism.
• It is the rights of vulnerable minorities that are at greatest risk.
• The courts are an inadequate safeguard, as they have acquiesced in what have subsequently been seen to be excessive measures.
• There is a danger that ‘temporary’ measures may become permanent.