Professional Documents
Culture Documents
States / Federalism
STATES / FEDERALISM – ENDI 2008
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2nc – 50 state fiat............................................................................................................................................52
2nc – 50 state fiat............................................................................................................................................54
=====LOPEZ CP=====...............................................................................................................................55
lopez cp 1nc....................................................................................................................................................55
lopez cp 1nc....................................................................................................................................................57
lopez cp 1nc....................................................................................................................................................58
court can devolve............................................................................................................................................59
federalism net benefit.....................................................................................................................................60
A2: rollback....................................................................................................................................................61
A2: uniformity................................................................................................................................................62
A2: heg da.......................................................................................................................................................63
A2: precedent da’s..........................................................................................................................................64
A2: no test case...............................................................................................................................................65
A2: Perm – Do Both.......................................................................................................................................66
A2: perm – do the cp......................................................................................................................................67
2nc – lopez fiat................................................................................................................................................68
=====aff=====.............................................................................................................................................69
-----federalism-----..........................................................................................................................................69
uniqueness – federal incentives now..............................................................................................................69
uniqueness – federal control now...................................................................................................................70
general no link................................................................................................................................................71
no threshold....................................................................................................................................................72
not zero sum....................................................................................................................................................73
US federalism not modeled............................................................................................................................74
lopez cp hurts federalism – 2ac......................................................................................................................75
federalism bad – ethnic conflict......................................................................................................................76
federalism bad – indonesia.............................................................................................................................77
federalism bad – indonesia.............................................................................................................................78
A2: iraq impact...............................................................................................................................................80
A2: russia impact............................................................................................................................................81
-----states-----..................................................................................................................................................82
2ac – states cp.................................................................................................................................................82
2ac – states cp.................................................................................................................................................83
ext – investment climate.................................................................................................................................84
2ac – lopez cp.................................................................................................................................................85
2ac – lopez cp.................................................................................................................................................86
ext – congress rollback...................................................................................................................................88
ext – executive rollback..................................................................................................................................90
ext – variance..................................................................................................................................................91
A2: federal modeling......................................................................................................................................92
A2: states best – general.................................................................................................................................93
Terrorism DA – 2AC......................................................................................................................................94
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=====FEDERALISM=====
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1NC – FEDERALISM DISAD
Lack ‘95
(James, Senator – New York, Serial No. J-104-31, 7-11, p. 11)
Every year Congress considers bills, federal agencies consider rules, and international agencies consider cases
that would supplant state statutory or common law. Adverse decisions may result not only in
nullifying state laws and court decisions, but also in narrowing the range of issues that legislatures
may address. The threat is the steady, incremental, year-by-year erosion of the
jurisdiction of state legislatures.
Calabresi ‘95
(Steven G., Assistant Prof – Northwestern U., Michigan Law Review, Lexis)
First, the rules of constitutional federalism should be enforced because federalism is a good
thing, and it is the best and most important structural feature of the U.S. Constitution. Second, the political branches
cannot be relied upon to enforce constitutional federalism, notwithstanding the contrary writings of Professor Jesse
Choper. Third, the Supreme Court is institutionally competent to enforce constitutional
federalism. Fourth, the Court is at least as qualified to act in this area as it is in the Fourteenth Amendment area.
And, fifth, the doctrine of stare [*831] decisis does not pose a barrier to the creation of any new, prospectively
applicable Commerce Clause case law. The conventional wisdom is that Lopez is nothing more than a flash in the pan.
232 Elite opinion holds that the future of American constitutional law will involve the continuing elaboration of the
Court's national codes on matters like abortion regulation, pornography, rules on holiday displays, and rules on how the
states should conduct their own criminal investigations and trials. Public choice theory suggests many reasons why it is
likely that the Court will continue to pick on the states and give Congress a free ride. But, it would be a very good
thing for this country if the Court decided to surprise us and continued on its way down the
Lopez path. Those of us who comment on the Court's work, whether in the law reviews or in the newspapers, should
encourage the Court to follow the path on which it has now embarked. The country and the world would be a better
place if it did. We have seen that a desire for both international and devolutionary federalism has swept
across the world in recent years. To a significant extent, this is due to global fascination with
and emulation of our own American federalism success story. The global trend toward
federalism is an enormously positive development that greatly increases the
likelihood of future peace, free trade, economic growth, respect for social and cultural
diversity, and protection of individual human rights. It depends for its success on the
willingness of sovereign nations to strike federalism deals in the belief that those deals will be
kept. 233 The U.S. Supreme Court can do its part to encourage the future striking of such deals
by enforcing vigorously our own American federalism deal. Lopez could be a first step in that
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process, if only the Justices and the legal academy would wake up to the importance of what is at stake.
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-----UNIQUENESS-----
FEDERALISM HIGH
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FEDERALISM HIGH
Federalism is strong now --- the Courts are restoring state power
Garry ‘06
(Patrick M., Associate Prof – U. South Dakota School of Law, Seton Hall Law Review, Lexis)
The revival of federalism has become a defining theme of the modern Court. Commentators
have described the Court's decisions as sparking a "federalism revolution." This so-called revolution
comes after a long dormancy. From the late 1930s to the early 1990s, [*852] constitutional provisions related to
federalism were largely ignored. However, under the leadership of the late Chief Justice Rehnquist, the Court has
attempted to revive the constitutional role and authority of the states. Through a wide array of cases
employing both the Tenth and Eleventh Amendments, the Court has stalled or even reversed the
constitutional drift of power from the states to the federal government that began in the 1930s. This "new
federalism" has attempted to resuscitate the role of the states in the constitutional system, as
well as revive certain federalism doctrines that were abandoned during the New Deal. Just as a frustration with
the ineffectual response of the states to the Great Depression caused regulators and constitutional lawyers to favor a
dramatic expansion of the national government during the 1930s, a frustration with and suspicion of large, centralized
government and its inflexible bureaucracies has helped fuel the current drift toward empowering smaller, localized
governments. But in addition to this size-of-government concern, there is another side of federalism - the individual
liberty side. In the view of the constitutional Framers, a vibrant federalism would help ensure individual liberty by
limiting and monitoring the power of the federal government to infringe on the liberties of its citizens.
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FEDERALISM HIGH – GLOBALLY
Mallat ‘03
(Chilibi, PhD – U London, Case Western Reserve Journal of International Law, Winter, Lexis)
In its European dimension, federalism has been on the march since the Treaty of Rome. In its "Third world" dimension,
federalism is inevitably the shape of things to come within and between countries in the Middle East, Southeast Asia,
South America, and the luckier parts of Africa and the former Soviet Union. Examples of federalism abound, of course,
from Malaysia to Nigeria. Where it is absent, as in the Middle East, it carries much promise. In the same way a decent
future for Iraq or Turkey can only be federal within each country's borders, the emerging shape of Arab-Israeli peace
must consider, for long-term success, federalism's hard-to-adopt central features of freedom of movement for business
and labor
Calabresi ‘95
(Steven G., Assistant Prof – Northwestern U., Michigan Law Review, Lexis)
The prevailing wisdom is that the Supreme Court should abstain from enforcing constitutional limits on federal power
for reasons of judicial competence and because the Court should spend essentially all its political capital enforcing the
Fourteenth Amendment against the states instead. This view is wrong. First, the rules of constitutional federalism
should be enforced because federalism is a good thing, and it is the best and most important structural feature of the
U.S. Constitution. Second, the political branches cannot be relied upon to enforce constitutional federalism,
notwithstanding the contrary writings of Professor Jesse Choper. Third, the Supreme Court is institutionally competent
to enforce constitutional federalism. Fourth, the Court is at least as qualified to act in this area as it is in the Fourteenth
Amendment area. And, fifth, the doctrine of stare [*831] decisis does not pose a barrier to the creation of any new,
prospectively applicable Commerce Clause case law. The conventional wisdom is that Lopez is nothing more than a
flash in the pan. 232 Elite opinion holds that the future of American constitutional law will involve the continuing
elaboration of the Court's national codes on matters like abortion regulation, pornography, rules on holiday displays,
and rules on how the states should conduct their own criminal investigations and trials. Public choice theory suggests
many reasons why it is likely that the Court will continue to pick on the states and give Congress a free ride. But, it
would be a very good thing for this country if the Court decided to surprise us and continued on its way down the
Lopez path. Those of us who comment on the Court's work, whether in the law reviews or in the newspapers, should
encourage the Court to follow the path on which it has now embarked. The country and the world would be a better
place if it did. We have seen that a desire for both international and devolutionary federalism has swept across the
world in recent years. To a significant extent, this is due to global fascination with and emulation of
our own American federalism success story. The global trend toward federalism is an
enormously positive development that greatly increases the likelihood of future peace, free
trade, economic growth, respect for social and cultural diversity, and protection of individual
human rights. It depends for its success on the willingness of sovereign nations to strike federalism deals in the
belief that those deals will be kept. 233 The U.S. Supreme Court can do its part to encourage the future striking of such
deals by enforcing vigorously our own American federalism deal. Lopez could be a first step in that process, if only the
Justices and the legal academy would wake up to the importance of what is at stake.
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-----LINKS-----
LINK – RENEWABLES
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LINK – RENEWABLES
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LINK – ENVIRONMENTAL REGULATION
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LINK – FEDERAL SUBSIDIZATION OF STATE PROGRAMS
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LINK HELPER – SNOWBALL
Johnson ‘01
(Virginia H., JD Candidate, Cardoza Law Review, November, Lexis)
Although the Lue court agreed that the "plainly adapted" 139 standard was the appropriate test to be applied to the
Hostage Taking Act, it found that, contrary to appellant's interpretation, the Act was "plainly adapted" to the
Convention, in that "it tracks the language of the Convention in all material respects." 140 [*380] Specifically, the
court found that the Act satisfied the means-ends relationship required by the prevailing view of the Necessary and
Proper Clause because the statutory language did not stray too far, if at all, from the terms of the treaty, thus insulating
the legislation from appellant's Necessary and Proper Clause attack. 141 Based on the judiciary's long-standing
treatment of the Necessary and Proper Clause as conferring upon Congress broad implementation powers, 142 it is not
surprising that the Lue court premised its opinion on the presumptive validity of treaty-implementing legislation. 143
However, what this analysis fails to take into account is the slippery slope toward a limitless
treaty power that could ultimately result in the over-expansion of federal power, especially in
the area of human rights. 144 The reasoning employed in Lue therefore provides a useful example of the typical
but flawed understanding of the Necessary and Proper Clause, in that the Lue court simply assumed "necessary" and
"proper" to be interchangeable constitutional requirements. 145
Lebow ‘97
(Cynthia C., Associate Dir – RAND, U. Tennessee Law Review, Spring, Lexis)
n162 See Southland, 465 U.S. at 21 (O'Connor, J., dissenting) (noting Rehnquist, C.J., joining opinion of O'Connor,
J.); FERC, 456 U.S. at 775 (O'Connor, J., concurring in part and dissenting in part) (noting Rehnquist, C.J., joining in
opinion of O'Connor, J.). Justice Powell filed his own partial dissent in FERC that also deserves mention. FERC, 456
U.S. at 771 (Powell, J., concurring in part and dissenting in part). Lauding the "appeal" and "wisdom" of Justice
O'Connor's dissent, Powell stated that PURPA "intrusively requires [states] to make a place on their administrative
agenda for consideration and potential adoption of federally proposed standards.'" Id. at 771, 775 (Powell, J.,
concurring in part and dissenting in part). While finding that precedents of the Court supported the constitutionality of
the substantive provisions of PURPA "on this facial attack," Powell also evoked principles of federalism to warn
against the encroachment of federal authority into state affairs: But I know of no other attempt by the Federal
Government to supplant state-prescribed procedures that in part define the nature of their administrative agencies. If
Congress may do this, presumably it has the power to pre-empt state-court rules of civil procedure and judicial review
in classes of cases found to affect commerce. This would be the type of gradual encroachment hypothesized by
Professor Tribe: "Of course, no one expects Congress to obliterate the states, at least in one fell
swoop. If there is any danger, it lies in the tyranny of small decisions in the prospect that
Congress will nibble away at state sovereignty, bit by bit, until someday essentially nothing is
left but a gutted shell." Id. at 774-75 (Powell, J., concurring in part and dissenting in part) (quoting Laurence H.
Tribe, American Constitutional Law 302 (1978)). Despite his warning, Justice Powell could probably never have
envisioned the degree to which Congress would attempt to preempt state court procedures with respect to tort and
product liability actions, areas so traditionally anchored in state common law.
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LINK HELPER – ZERO SUM
Federal and state powers are zero-sum --- they trade off
John Yoo, law professor, SOUTHERN CALIFORNIA LAW REVIEW, 1997, p. 1352.
It is important to note that Justice Kennedy did not differentiate between laws that regulated states qua states and those
that regulated private parties in areas that might be thought to lie within state power. Following Chief Justice
Rehnquist's majority opinion, Justice Kennedy's concurrence treated the exercise of any federal power as a diminution
of the power of the states and hence a reduction of state sovereignty
Lee ‘96
(Rex, Fmr Solicitor General, Brigham Young U. Law Review, p. 369)
Thus, though the state circle of power is larger than that of the federal government, federal power is supreme and
preempts state power within the area covered by the smaller circle. If the circle of federal power is expanded,
as shown by the broken line, the nonpreempted portion of the state’s power circle – and therefore
the effective area in which the states may govern – is correspondingly diminished.
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GENERIC FEDERAL ACTION LINKS
Young ‘04
(Ernest, Prof Law – U Texas, Texas Law Review, November, Lexis)
Second, limiting preemption seeks to address certain process defects that may render the national political process less
protective of state autonomy. Professor Hoke has argued that the sort of concentrated interest groups that often seek
preemption of state regulation have certain organizational advantages at the federal level that offset state representation.
More fundamentally, I have already emphasized the extent to which widespread preemption threatens the state
autonomy necessary to maintain a viable system of political checks on central power. Limits on preemption thus
address problems that undermine the self-enforcing character of the system.
Lack ‘95
(James, Senator – New York, Hearing Before Committee on the Judiciary United States Senate, 7-
11, p. 11)
Inordinate reliance upon the central government for problem-solving feeds the misconception
that uniformity for uniformity’s sake alone is a concept that justifies preemption. However, in a
federal system strong reasons compel acceptance of diversity among states. Our federalism anticipates
diversity; our unity does not anticipated uniformity. By definition, every preemptive law diminishes
other expressions of self-government and should be approved only where compelling need and broad
consensus exist. While proponents of preemption may claim expected benefits, these must be balanced against the
potential loss of accountability, innovation, and responsiveness.
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-----IMPACTS-----
US FEDERALISM MODELED
Calebresi ‘95
[Stephen, Associate Professor, Northwestern University School of Law. B.A. 1980, J.D. 1983,
Yale, “Reflections on United States v. Lopez: "A GOVERNMENT OF LIMITED AND
ENUMERATED POWERS": IN DEFENSE OF UNITED STATES v. LOPEZ,” 94 Mich. L. Rev.
752, Michigan Law Review, December, 1995]
At the same time, U.S.-style constitutional federalism has become the order of the day in an extraordinarily large
number of [*760] very important countries, some of which once might have been thought of as pure nation-states.
Thus, the Federal Republic of Germany, the Republic of Austria, the Russian Federation, Spain, India, and Nigeria all
have decentralized power by adopting constitutions that are significantly more federalist than the ones they replaced.
n25 Many other nations that had been influenced long ago by American federalism have chosen to retain and formalize
their federal structures. Thus, the federalist constitutions of Australia, Canada, Brazil, Argentina, and Mexico, for
example, all are basically alive and well today. As one surveys the world in 1995, American-style federalism of some
kind or another is everywhere triumphant, while the forces of nationalism, although still dangerous, seem to be
contained or in retreat. The few remaining highly centralized democratic nation-states like Great Britain, n26 France,
and Italy all face serious secessionist or devolutionary crises. n27 Other highly centralized nation-states, like China,
also seem ripe for a federalist, as well as a democratic, change. Even many existing federal and confederal entities seem
to face serious pressure to devolve power further than they have done so far: thus, Russia, Spain, Canada, and Belgium
all have very serious devolutionary or secessionist movements of some kind. Indeed, secessionist pressure has been so
great that some federal structures recently have collapsed under its weight, as has happened in Czechoslovakia,
Yugoslavia, and the former Soviet Union. All of this still could be threatened, of course, by a resurgence of nationalism
in Russia or elsewhere, but the long-term antinationalist trend seems fairly secure. There is no serious intellectual
support for nationalism anywhere in the world today, whereas everywhere people seem interested in exploring new
transnational [*761] and devolutionary federal forms. n28 The democratic revolution that was launched in Philadelphia
in 1776 has won, and now it seems that democrats everywhere join Madison in "cherishing the spirit and supporting the
character of federalists." n29
Mallat ‘03
(Chilibi, PhD – U London, Case Western Reserve Journal of International Law, Winter, Lexis)
Laurence Tribe, in Constitutional Choices, summarized what he calls the underlying political ideas of the American
system into a list of six categories: representative republicanism, federalism, separation of powers, equality before the
law, individual autonomy and procedural fairness. America has shared many of these traits with other democracies for
a long time, but two constitutional features stand out on a world level as typically American -- federalism and the
Supreme Court. The American people deserve credit for both inventions which brought new dimensions to democracy
and the rule of law for the rest of the planet. Perhaps America does not know it, but the world has been a consistently
better place wherever her two home-grown intellectual products have found anchor.
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IMPACT – WAR
Calabresi ‘95
(Steven G., Assistant Prof – Northwestern U., Michigan Law Review, Lexis)
Small state federalism is a big part of what keeps the peace in countries like the United States and
Switzerland. It is a big part of the reason why we do not have a Bosnia or a Northern Ireland or a
Basque country or a Chechnya or a Corsica or a Quebec problem. 51 American federalism in the end is not a trivial
matter or a quaint historical anachronism. American-style federalism is a thriving and vital institutional
arrangement - partly planned by the Framers, partly the accident of history - and it prevents violence and war. It
prevents religious warfare, it prevents secessionist warfare, and it prevents racial warfare. It is
part of the reason why democratic majoritarianism in the United States has not produced violence
or secession for 130 years, unlike the situation for example, in England, France, Germany, Russia,
Czechoslovakia, Yugoslavia, Cyprus, or Spain. There is nothing in the U.S. Constitution that is more important
or that has done more to promote peace, prosperity, and freedom than the federal structure of that great document.
There is nothing in the U.S. Constitution that shouldabsorb more completely the attention of the U.S. Supreme Court.
Calebresi ‘95
[Stephen, Associate Professor, Northwestern University School of Law. B.A. 1980, J.D. 1983, Yale,
“Reflections on United States v. Lopez: "A GOVERNMENT OF LIMITED AND ENUMERATED
POWERS": IN DEFENSE OF UNITED STATES v. LOPEZ,” 94 Mich. L. Rev. 752, Michigan Law
Review, December, 1995]
Internationalist Federalism: Preventing War, Promoting Free Trade, and Exploiting Economies of Scale. So far, I have
focused on the advantages of American-style small-state federalism in defusing centrifugal devolutionary tendencies,
alleviating majority tyranny, and accentuating crosscutting social cleavages. But what about the advantages of
international federalism; what are the advantages of consolidating states into larger federal entities, as happened in
North America in 1787 or in Europe in 1957? A first and obvious advantage is that consolidation reduces the threat of
war. Because war usually occurs when two or more states compete for land or other resources, a reduction in the
number of states also will reduce the likelihood of war. This result is especially true if the reduction in the number of
states eliminates land boundaries between states that are hard to police, generate friction and border disputes, and that
may require large standing armies to defend. In a brilliant article, Professor Akhil Amar has noted the importance of
this point to both to the Framers of our Constitution and to President Abraham Lincoln. n52 Professor Amar shows that
they believed a Union of States was essential in North America because otherwise the existence of land boundaries
would lead here - as it had in Europe - to the creation of standing armies and ultimately to war. n53 The Framers
accepted the old British notion that it was Britain's island situation that had kept her free of war and, importantly, free
of a standing army that could be used to oppress the liberties of the people in a way that the British navy never could.
Calabresi ‘95
(Steven G., Assistant Prof – Northwestern U., Michigan Law Review, Lexis)
Some of the best arguments for centripetal international federalism, then, resemble some of the best arguments for
centrifugal devolutionary federalism: in both cases - and for differing reasons - federalism helps prevent
bloodshed and war. It is no wonder, then, that we live in an age of federalism at both the international and
subnational level. Under the right circumstances, federalism can help to promote peace, prosperity, and
happiness. It can alleviate the threat of majority tyranny - which is the central flaw of
democracy. In some situations, it can reduce the visibility of dangerous social fault lines, thereby
preventing bloodshed and violence. This necessarily brief comparative, historical, and empirical survey of the
world's experience with federalism amply demonstrates the benefits at least of American-style small-state federalism. 61
In light of this evidence, the United States would be foolish indeed to abandon its federal system. [*774]
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IMPACT – ECONOMY
Calebresi ‘95
[Stephen, Associate Professor, Northwestern University School of Law. B.A. 1980, J.D. 1983, Yale,
“Reflections on United States v. Lopez: "A GOVERNMENT OF LIMITED AND ENUMERATED
POWERS": IN DEFENSE OF UNITED STATES v. LOPEZ,” 94 Mich. L. Rev. 752, Michigan Law
Review, December, 1995]
A third related advantage is that international federations can undertake a host of governmental activities in which there
are significant economies of scale. This is one reason why federations can provide better for the common defense than
can their constituent parts. Intercontinental ballistic missiles, nuclear-powered aircraft [*772] carriers and submarines,
and B-2 stealth bombers tend to be expensive. Economies of scale make it cheaper for fifty states to produce one set of
these items than it would be for fifty states to try to produce fifty sets. This is true even without factoring in the North
American regional tensions that would be created if this continent had to endure the presence of fifty nuclear
minipowers, assuming that each small state could afford to own at least one Hiroshima-sized nuclear bomb. Important
governmental economies of scale obtain in other areas, as well, however, going well beyond national defense. For
example, there are important economies of scale to the governmental provision of space programs, scientific and
biomedical research programs, the creation of transportation infrastructure, and even the running of some kinds of
income and wealth redistribution programs.
Mead ‘04
[Walter Russell, – Senior Fellow at Council on Foreign Relations, “America's STICKY Power,” Foreign
Policy, Mar/Apr, Proquest]
Similarly, in the last 60 years, as foreigners have acquired a greater value in the United States-government and private
bonds, direct and portfolio private investments-more and more of them have acquired an interest in maintaining the
strength of the U.S.-led system. A collapse of the U.S. economy and the ruin of the dollar would do more than dent the
prosperity of the United States. Without their best customer, countries including China and Japan would fall into
depressions. The financial strength of every country would be severely shaken should the United States collapse. Under
those circumstances, debt becomes a strength, not a weakness, and other countries fear to break with the United States
because they need its market and own its securities. Of course, pressed too far, a large national debt can turn from a
source of strength to a crippling liability, and the United States must continue to justify other countries' faith by
maintaining its long-term record of meeting its financial obligations. But, like Samson in the temple of the Philistines, a
collapsing U.S. economy would inflict enormous, unacceptable damage on the rest of the world. That is sticky power with a
vengeance. The United States' global economic might is therefore not simply, to use Nye's formulations, hard power that compels others or soft power
that attracts the rest of the world. Certainly, the U.S. economic system provides the United States with the prosperity needed to underwrite its security
strategy, but it also encourages other countries to accept U.S. leadership. U.S. economic might is sticky power. How will sticky power help the United
States address today's challenges? One pressing need is to ensure that Iraq's econome reconstruction integrates the nation more firmly in the global
economy. Countries with open economies develop powerful trade-oriented businesses; the leaders of these businesses can promote economic policies that
respect property rights, democracy, and the rule of law. Such leaders also lobby governments to avoid the isolation that characterized Iraq and Libya
under economic sanctions. And looking beyond Iraq, the allure of access to Western capital and global markets is one of the few forces protecting the rule
of law from even further erosion in Russia. China's rise to global prominence will offer a key test case for sticky power. As China develops economically,
it should gain wealth that could support a military rivaling that of the United States; China is also gaining political influence in the world. Some analysts
in both China and the United States believe that the laws of history mean that Chinese power will someday clash with the reigning U.S. power. Sticky
power offers a way out. China benefits from participating in the U.S. economic system and integrating itself into the global economy. Between 1970 and
2003, China's gross domestic product grew from an estimated $106 billion to more than $1.3 trillion. By 2003, an estimated $450 billion of foreign
money had flowed into the Chinese economy. Moreover, China is becoming increasingly dependent on both imports and exports to keep its economy
(and its military machine) going. Hostilities between the United States and China would cripple China's industry, and cut off
supplies of oil and other key commodities. Sticky power works both ways, though. If China cannot afford war with the
United States, the United States will have an increasingly hard time breaking off commercial relations with China. In
an era of weapons of mass destruction, this mutual dependence is probably good for both sides. Sticky power did not
prevent World War I, but economic interdependence runs deeper now; as a result, the "inevitable" U.S.-Chinese
conflict is less likely to occur.
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IMPACT – TRADE
Calebresi ‘95
[Stephen, Associate Professor, Northwestern University School of Law. B.A. 1980, J.D. 1983, Yale,
“Reflections on United States v. Lopez: "A GOVERNMENT OF LIMITED AND ENUMERATED
POWERS": IN DEFENSE OF UNITED STATES v. LOPEZ,” 94 Mich. L. Rev. 752, Michigan Law
Review, December, 1995]
A fourth and vital advantage to international federations is that they can promote the free movement of
goods and labor both among the components of the federation by reducing internal transaction costs and
internationally by providing a unified front that reduces the costs of collective action when
bargaining with other federations and nations. This reduces the barriers to an enormous range
of utility-maximizing transactions thereby producing an enormous increase in social wealth.
Many federations have been formed in part for this reason, including the United States, the European Union, and the
British Commonwealth, as well as all the trade-specific "federations" like the GATT and NAFTA.
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IMPACT – DEMOCRACY
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EXT – FISM KEY TO DEMOCRACY
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IMPACT – GENOCIDE
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IMPACT – GENOCIDE
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IMPACT – SECESSIONISM
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EXT – FISM SOLVES SECESSION
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EXT – FISM SOLVES SECESSION
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IMPACT – RUSSIA
Hahn ‘03
(Gordon M., Visiting Research Scholor – Stanford U, Demokratizatsiya, Vol. 11, Issue 3,
Summer)
Where did Russia's federal state come from, where has it been, where is it going, and why does it matter beyond a small
circle of Russia specialists? Taking the last question first, the success or failure of Russia's transformation into a stable
market democracy will determine the degree of stability throughout Eurasia. For such a large multinational state,
successful political and economic development depends on building an efficient democratic federal system. Indeed, one
of the main institutional factors leading to the demise of the Soviet partocratic regime and state was the considerably
noninstitutionalized status of the RSFSR (Russian Republic) in the Soviet Union's pseudofederal, national-territorial
administrative structure. Only a democratic federal system can hold together and effectively manage Russia's vast
territory, the awkward administrative structure inherited from the failed USSR, and hundreds of divergent ethnic,
linguistic, and religious interests. Dissolution or even any further weakening of Russia's federal state could have
dire consequences for Russian national and international security by weakening control over its means of mass
destruction.
Nuclear war
David ‘99
(Steven R., Prof PoliSci – Johns Hopkins U., Foreign Affairs, Jan/Feb, Lexis)
If conditions get worse, even the stoic Russian people will soon run out of patience. A future
conflict would quickly draw in Russia's military. In the Soviet days civilian rule kept the powerful armed
forces in check. But with the Communist Party out of office, what little civilian control remains relies on an
exceedingly fragile foundation -- personal friendships between government leaders and military commanders.
Meanwhile, the morale of Russian soldiers has fallen to a dangerous low. Drastic cuts in spending mean inadequate
pay, housing, and medical care. A new emphasis on domestic missions has created an ideological split between the old
and new guard in the military leadership, increasing the risk that disgruntled generals may enter the political fray and
feeding the resentment of soldiers who dislike being used as a national police force. Newly enhanced ties between
military units and local authorities pose another danger. Soldiers grow ever more dependent on local governments for
housing, food, and wages. Draftees serve closer to home, and new laws have increased local control over the armed
forces. Were a conflict to emerge between a regional power and Moscow, it is not at all clear which side the military
would support. Divining the military's allegiance is crucial, however, since the structure of the Russian Federation
makes it virtually certain that regional conflicts will continue to erupt. Russia's 89 republics, krais, and oblasts grow
ever more independent in a system that does little to keep them together. As the central government finds itself unable
to force its will beyond Moscow (if even that far), power devolves to the periphery. With the economy collapsing,
republics feel less and less incentive to pay taxes to Moscow when they receive so little in return. Three-quarters of
them already have their own constitutions, nearly all of which make some claim to sovereignty. Strong ethnic bonds
promoted by shortsighted Soviet policies may motivate non-Russians to secede from the Federation. Chechnya's
successful revolt against Russian control inspired similar movements for autonomy and independence throughout the
country. If these rebellions spread and Moscow responds with force, civil war is likely. Should Russia succumb to
internal war, the consequences for the United States and Europe will be severe. A major power like Russia -- even
though in decline -- does not suffer civil war quietly or alone. An embattled Russian Federation
might provoke opportunistic attacks from enemies such as China. Massive flows of refugees would pour
into central and western Europe. Armed struggles in Russia could easily spill into its neighbors. Damage
from the fighting, particularly attacks on nuclear plants, would poison the environment of much of Europe
and Asia. Within Russia, the consequences would be even worse. Just as the sheer brutality of the last Russian civil
war laid the basis for the privations of Soviet communism, a second civil war might produce another horrific regime.
Most alarming is the real possibility that the violent disintegration of Russia could lead to loss of control
over its nuclear arsenal. No nuclear state has ever fallen victim to civil war, but even without a clear precedent
the grim consequences can be foreseen. Russia retains some 20,000 nuclear weapons and the raw material for tens of
thousands more, in scores of sites scattered throughout the country. So far, the government has managed to prevent the
loss of any weapons or much material. If war erupts, however, Moscow's already weak grip on nuclear sites will
slacken, making weapons and supplies available to a wide range of anti-American groups and states. Such dispersal
of nuclear weapons represents the greatest physical threat America now faces. And it is hard
to think of anything that would increase this threat more than the chaos that would follow a
29
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Russian civil war.
30
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IMPACT – IRAQ
Hulsman ‘03
[John, Ph.D., Research Fellow in European Affairs, The Heritage Foundation, “Forging a Durable
Post-War Political Settlement in Iraq,” http://www.heritage.org/Research/MiddleEast/bg1632.cfm]
A good political model for such a successful post-war Iraqi federation already exists--the so-called Great Compromise
of 1787 that enabled the creation of America's constitutional arrangement among the states. In Iraq's case, this type of
system would give each of the country's three major sub-groups equal representation in an upper house of the
legislature in order to protect each group's interests at the national level. These political outcomes--an Iraq that can
control its own political destiny and that does not threaten that of its neighbors--are critical if an Iraqi settlement is to
be judged a success.
Somin ‘06
[Ilya, Assistant Professor at George Mason University School of Law, “Iraqi Federalism II - Answering
Three Common Objections:,” http://volokh.com/posts/1147298127.shtml]
Critics of decentralized federalism often claim that it will lead to partition. Some, like
Cordesman in his NY Times piece, do not even seem to distinguish between the two. It
is in fact the fear of a dominant central government dominated by one's
enemies that leads to pressure for partition. Implementation of a strong form of
federalism would dampen these fears, though probably not completely eliminate them.
Realistically, the Kurds will not accept a highly centralized government of any kind
(and I don't blame them). The Sunnis will not accept one dominated by the Shia, as is
likely to be case if the government continues to be democratically elected (the Shiites
are 60% of the population). By removing the threat of nation-wide domination by one
group, decentralized federalism will reduce pressures for partition rather than increase
it. This is especially likely in light of the fact that partition would leave all
three major Iraqi groups vulnerable to the depradations of Iraq's
unscrupulous and rapacious neighbors. Federalism is a way to capture the
main benefits of partition, while mitigating its dangers. Decentralized
federalism is not a panacea for Iraq's many problems, but it does have important
advantages over the alternatives of centralization, partition, and civil war.
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IMPACT – IRAQ
Steinbach ‘02
(John, Center for Research on Globalization, 3-3,
http://www.globalresearch.ca/articles/STE203A.html)
Meanwhile, the existence of an arsenal of mass destruction in such an unstable region in turn has serious implications
for future arms control and disarmament negotiations, and even the threat of nuclear war. Seymour Hersh warns,
"Should war break out in the Middle East again,... or should any Arab nation fire missiles against Israel,
as the Iraqis did, a nuclear escalation, once unthinkable except as a last resort, would now be a strong
probability."(41) and Ezar Weissman, Israel's current President said "The nuclear issue is gaining
momentum(and the) next war will not be conventional."(42) Russia and before it the Soviet Union has long
been a major(if not the major) target of Israeli nukes. It is widely reported that the principal purpose of Jonathan Pollard's spying for Israel was to furnish
satellite images of Soviet targets and other super sensitive data relating to U.S. nuclear targeting strategy. (43) (Since launching its own satellite in 1988,
Israel no longer needs U.S. spy secrets.) Israeli nukes aimed at the Russian heartland seriously complicate disarmament and arms control negotiations
and, at the very least, the unilateral possession of nuclear weapons by Israel is enormously destabilizing, and dramatically lowers the threshold for their
actual use, if not for all out nuclear war. In the words of Mark Gaffney, "... if the familar pattern(Israel refining its weapons of mass destruction with U.S.
complicity) is not reversed soon- for whatever reason- the deepening Middle East conflict could trigger a world
conflagration." (44)
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IMPACT – INDONESIA
could upset regional equilibrium and undermine the American strategic canopy in East Asia.
The United States has a network of bases and alliances and 100,000 military personnel in the region, and is
33
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considered the guarantor of stability by most states-a status it will forfeit if it stands
aside as Indonesia falls apart. America's competitors will scrutinize its actions to gauge its resolve and acumen. So will its friends
and allies-Australia, Japan, Singapore, Thailand and South Korea-each of whom would be hurt by
Indonesia's collapse.
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IMPACT – SOUTH ASIA
Fai ‘01
(Ghulam Nabi, Executive Director, Kashmiri American Council, Washington Times, 7-8)
The foreign policy of the United States in South Asia should move from the lackadaisical and distant (with India
crowned with a unilateral veto power) to aggressive involvement at the vortex. The most dangerous place on the planet
is Kashmir, a disputed territory convulsed and illegally occupied for more than 53 years and sandwiched between
nuclear-capable India and Pakistan. It has ignited two wars between the estranged South Asian rivals in 1948 and 1965,
and a third could trigger nuclear volleys and a nuclear winter threatening the entire globe.
____
Bagchi ‘03
(Amaresh, National Institute of Public Finance and Policy, Publius, Fall)
Relations between state and national governments are difficult everywhere, and in India the Center has to tread with
caution, following clear rules and acting transparently. Fortunately, federalism allows for flexibility and adaptation.
Maintaining an appropriate balance between the Center and the states in a federation is, to quote Buchanan again, "like
keeping a satellite in place, with centrifugal and centripetal forces keeping each other in check". (51) The game is
surely worth the candle especially where, as in India, the stakes are large. It may not be an exaggeration to say that the
stability of India as a nation depends critically on the strength of its federal structure. Any weakening of that
structure could be disastrous for the subcontinent, if not for the world.
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=====STATES CP=====
Text --- The 50 United States State Governments and relevant U.S.
territories should ______________
______________________________________________________________________________
______________________________________________________________________________
_______________.
STATES SOLVE -- BEST SUITED FOR RENEWABLES PROMOTING RENEWABLES AND THEY
ENCOURAGE FEDERAL MODELING
Dr. Harlan L. Watson, Senior Climate Negotiator and Special Representative and Head of the U.S.
Delegation to the UN Framework Convention on Climate Change, “Statement to the Second Meeting of the
Plenary,” 12-4-2003 (http://www.state.gov/g/oes/rls/rm/2003/26894.htm)
Finally, I would like to highlight the efforts being made by State and local governments in the United States
to address climate change. Geographically, the United States encompasses vast and diverse climatic zones
representative of all major regions of the world -- polar, temperate, semi-tropical, and tropical -- with
different heating, cooling, and transportation needs and with different energy endowments. Such diversity
allows our State and local governments to act as laboratories where new and creative ideas and methods
can be applied and shared with others and inform federal policy -- a truly bottom-up approach to
addressing global climate change. At the State level, 40 of our 50 States have prepared GHG inventories,
27 States have completed climate change action plans, and 8 States have adopted voluntary GHG emissions
goals. In addition, 13 States have adopted “Renewable Portfolio Standards” requiring electricity generators
to gradually increase the portion of electricity produced from renewable resources such as wind, biomass,
geothermal, and solar energy. And, at the local level, more than 140 local governments participating in the
Cities for Climate Protection Campaign are developing cost-effective GHG reduction plans, setting goals,
and reducing GHG emissions.
36
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STATES SOLVE – GENERAL HELPERS
37
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STATES SOLVE – ENERGY POLICY
38
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STATES SOLVE – ENERGY POLICY
39
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STATES SOLVE – ENERGY POLICY
40
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STATES SOLVE – HAVE EXPERIENCE
States have experience with energy regulations -- leading more than the federal government
Vogel and Toffel 03 (David Vogel Professor at the Haas School of Business at UC Berkeley, Michael
Toffel September, “Environmental Federalism in the European Union and the United States”
http://www.tilburguniversity.nl/globus/activities/conference/papers/vogel.pdf.)
In the US, greenhouse gas (GHG) emissions remain largely unregulated by the federal
government. In the 1990s, the Clinton administration participated in the United Nations effort
to establish a treaty governing GHG emissions. While the US signed the Kyoto Protocol, it
was never submitted to the Senate for ratification. Soon after the Bush administration took
office it declared it would not support the Kyoto Protocol. Also refusing to propose any
regulations for carbon emissions, it instead chose to encourage industry to adopt voluntary
targets, through its Global Climate Change Initiative. Legislation to amend the Clean Air Act
to encompass carbon emissions has been submitted in Congress, but has yet to be voted upon.
The Congress has also persistently voted down proposals to strengthen fuel economy
standards. The lack of federal regulation has created a policy vacuum which a number of
states have filled. While “some significant legislation to reduce greenhouse gases was
enacted during the late 1990s, such as Oregon’s pioneering 1997 law that established CO2
standards for new electrical power plants...[state] efforts to contain involvement on climate
change have been supplanted in more recent years with an unprecedented period of activity
and innovation”. The US EPA has catalogued over 700 state policies to reduce green house
gas (GHG) emissions. 65 Two recent reports describe various state-level initiatives that
address climate change, either directly or indirectly. 66 “New legislation and executive orders
expressly intended to reduce greenhouse gases have been approved in approximately one-
third of the states since January 2000, and many new legislative proposals are moving ahead
in a large number of states.”
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STATES SOLVE – SOLAR POWER
42
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STATES SOLVE – WIND POWER
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A2: RACE TO THE BOTTOM
We conclude with two general observations about the dynamics of environmental policy
in the federal systems of the US and the EU. On one hand, the continued efforts of both states
in the US and member states in the EU to strengthen a broad range of environmental
regulations suggest that fears of a regulatory race to the bottom may be misplaced. Clearly,
concerns that strong regulations will make domestic producers vulnerable to competition
from products produced in political jurisdictions with less stringent standards have not
prevented many states on both sides of the Atlantic from enacting many relatively stringent
and ambitious environmental standards. But on the other hand, the impact of such state
policies remains limited, in part because not all states will chose to adopt or vigorously
enforce relatively stringent standards. Thus in the long run, there is no substitute for
centralized standards; they represent the most important mechanism of policy diffusion.
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STATES SOLVE – RPS
45
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FEDERAL MODELING 2NC
Golden ‘99
(Dylan, JD Candidate – UCLA Law, UCLA Journal of Environmental Law & Policy, Lexis)
Individual states vary widely in their fossil fuel consumption and in the amount of carbon dioxide they release into the
atmosphere. California emits as much carbon dioxide as all of Scandinavia combined. 46 Texas is the seventh largest
carbon dioxide producer. 47 Some states emit a globally negligible amount of carbon dioxide. Some conservative
interests may therefore oppose the CCTI on the grounds that it involves a further expansion of federal power into an
area which is properly under the jurisdiction of states. Those who believe firmly in strong state governments are similar
to the "Greens" (discussed below) in that the "rent", in this case the penalty, at stake in the CCTI is non-economic.
[*188] This group does have some justification for their position. Attempted state action involving manipulating
markets, generally through the tax system, in the name of the environment tells us a great deal about how various
stakeholders - such as business entities, environmental interest groups, and political groups - might respond to federal
or international action. 48 State legislatures also provide a forum to raise issues and change perceptions. 49 State
environmental policy frequently influences Congress. 50 State action increases the feasibility of
federal action because: familiarity aids the political process, legislators understand the politics
in terms of income, consumption and their regional interests, administrative agencies know
how to [*189] administrate and may estimate impacts, interest groups know where they stand,
and practical experience can guide legislative drafting. 51 Such grassroots action may also
stimulate support among the populous by encouraging people to take personal responsibility for the
environment. 52 Action at the state level may also spur more informed federal action, which
in turn could spur international action. State-federal agreements are possible on the carbon tax issue
and the commerce clause does not prohibit joint or unilateral action. 53 Energy taxes have already been implemented
jointly in the case of gasoline taxes. 54
46
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SOLVENCY – GENERAL
Calabresi ‘95
(Steven G., Assistant Prof – Northwestern U., Michigan Law Review, Lexis)
c. Experimentation. The possibility of competition among jurisdictions creates incentives for each
jurisdiction to provide bundles of goods that will maximize utility for a majority of the voters in that
jurisdiction. These bundles will not be the same, of course, because we have stipulated already that jurisdictional tastes
and preferences differ, and, therefore, jurisdictional utility curves differ as well. Many jurisdictions will seek to
maximize utility by trying to gain the tax dollars of residents and industry from other states. Some jurisdictions
conceivably might put less emphasis on this particular goal so as to maintain a higher quality of lifefor current
residents. In any event, the possibility of competition will lead inexorably to experimentation and
product differentiation. 72 In a competitive situation, state governments, as competing sellers
of bundles of public goods, must strive constantly to improve the desirability of their bundle lest
they lose out. The end result is an incentive for state governments to experiment and improve.
This is the point of Justice Brandeis's famous statement that:
Calabresi ‘95
(Steven G., Assistant Prof – Northwestern U., Michigan Law Review, Lexis)
d. Improved Quality of Governmental Decisionmaking and Administration. Decentralized governments make
better decisions than centralized ones for reasons additional to the whip they feel from
competition. Decentralization ensures that "those responsible for choosing a given social policy
are made aware of the costs of that policy." 74 This helps ensure a more informed weighing of
costs and benefits than often occurs at the national level where taxpayers often may be less cognizant of
the social costs of particular legislation.
Calabresi ‘95
(Steven G., Assistant Prof – Northwestern U., Michigan Law Review, Lexis)
In addition and just as importantly, governmental agency costs often may be lower at the state level
than at the national level be- [*778] cause monitoring costs may be lower where fewer
programs, employees, and amounts of tax revenue are involved. The smaller size of the state
governmental jurisdictions thus makes it far easier for citizens to exercise a greater and more effective degree of control
over their government officials. For this reason, it often makes sense to lodge dangerous and intrusive police powers
75
over crime and over controversial social issues in the states where government officials may be monitored more easily
by the citizenry. Conversely, state governments also may find that they are able to enforce criminal
laws and regulations of social mores less coercively than the national government because of
the lower costs and greater ease of monitoring citizen behavior in a smaller jurisdiction. Indeed, 76
ideally small jurisdictional size will lead to less populous state legislative districts, thus producing a greater congruence
between the mores of the legislators and of the people than can exist in a continental-sized national republic that
necessarily must have enormously large legislative districts and other units of representation. The greater congruence
77
of mores between citizens and representatives in state governments in turn may produce greater civic mindedness and
community spirit at the state level. This might ameliorate the highly corrosive decline of public spiritedness at the
78
national level that has occurred as a result of the current perception that there exists a discongruence of mores between
members of Congress and the public.
47
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SOLVENCY – SOFT POWER
Goldsmith ‘97
(Jack, Associate Prof – U Chicago, Virginia Law Review, November, Lexis)
This analysis casts doubt on the widely held view that the states have no legitimate interest in the regulation of foreign
relations. Many who hold this view are misled by the label "foreign relations," which is invariably associated with
traditional foreign relations issues and thus with exclusive federal control. But the issues implicated by the
federal common law of foreign relations - state common and criminal law, choice of law, procedural
law, nondiscriminatory international economic activities, and state human rights activities - differ
significantly from traditional foreign relations matters. Concurrent authority over these
nontraditional foreign relations matters are much less likely to undermine the United States'
ability to participate in international affairs, and much less likely to harm the national foreign relations
interest. And, in contrast to state activities in traditional foreign relations contexts, many affirmative benefits
accrue from the decentralization of these new foreign relations functions. For example,
nontraditional state foreign relations activities such as international trade activity and involvement in the international
human rights movement assist both the U.S. government and third parties. 248 Subnational foreign relations
initiatives increased awareness about the United States' economic policies against oppressive
regimes in South Africa and Myanmar. 249 [*1678] Similarly, the State and Commerce Departments approve
of the manifold state international economic activities presumably because they find that decentralization of
these activities serves U.S. interests more effectively than centralized federal control. 250
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A2: STATES = RACIST
Double-bind --- either there’s no link because the only action the CP
takes is the plan and that isn’t racist or this links to the Aff too
because they enact the same plan ---- there’s no way the states
could spin it in a racist manner
Timothy Zizk, William and Mary Law Review, Oct 2004 v46 i1 p213(131) Statehood as the new
personhood: the discovery of fundamental "states' rights".
Perhaps it was not institutional incompetence or necessity that led the Garcia Court to purport to leave the federalism
area, and that has led the Court more generally to avoid, at least until recently, an expansive rights regime for states.
Perhaps, as Baker and Young contend, individual rights like abortion and sexual privacy are simply "normatively more
attractive than states' rights." After all, the phrase "states' rights," for many, conjures a host of negative associations,
including, for some, virulent racism. It is possible, therefore, that the Court, and many scholars as well, have been
"read[ing] particular values out of the Constitution simply because popular opinion at a given point in history finds
them normatively unattractive." This proposition cannot, of course, be tested empirically. There may indeed have been
some residual judicial ill will toward "states' rights" due to its association with bad actors, both public and private, in
our nation's past. It seems unlikely, however, that in 1985, when Garcia was decided, the Court rested its decision to
curtail fundamental "states' rights" federalism on these sorts of negative associations. It probably gives too little credit
to the Court, and to scholars, to suggest that modes of judicial enforcement or scholarly support are based primarily
upon "changing normative preferences" or mere popularity. Even if one is not willing to give judges and scholars such
credit, it is surely a stretch to paint the "states' rights" of National League of Cities with the same brush as the old
"states' rights" of segregationists. The "states' rights" of what might be considered the modern era--freedom from
federal wages and hours regulations, for example--are hardly the sort that invoke segregationist ghosts.
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-----PERMUTATION-----
Joseph F. Zimmerman, Professor of Political Science at the State University of New York at Albany, 2001
PUBLIUS, Spring, p 16)
Examining this list, it becomes apparent that different institutional features of the federal structure are more or less
important for securing these different values. Some of the values - diversity, competition, and experimentalism - appear
to depend significantly on the existence of many states pursuing unique regulatory agendas. If all of the states pursued
identical regulatory strategies, or were prevented from instituting meaningful agendas altogether, these values, as a
logical matter, could not be promoted. Obviously there would be no regulatory diversity, because all of the states would
structure the lives of their citizens in the same way. Moreover, this uniformity would prevent state competition and
experimentation: people would have no incentive to "vote with their feet" if each state provided the same package of
public goods, and experimentation by definition requires that different states attempt different solutions to the same
social problems.
Gardbaum ‘97
(Stephen, Associate Prof – Northwestern U., Texas Law Review, March, Lexis)
[*796] Despite their diametrically opposed conclusions, however, a fundamental premise is shared by both
sides in this long-standing debate -- a premise that characterizes almost all analyses of American
federalism. This shared premise is that the existence of areas of exclusive state power is a
necessary condition of constitutional federalism: in order for federalism to operate as a
principle of constitutional law, there must in practice (and not merely in rhetoric or national myth) be
areas of regulatory authority reserved exclusively to the states -- areas in which Congress
cannot regulate. Given this shared premise, the debate has focused on whether or not such areas currently exist
constitutionally speaking, and its content consists largely of arguments for and against various proposed textual bases
for them. Leading candidates over the years have included the Commerce Clause, 6 the Tenth Amendment, 7 and the
Guarantee Clause. 8
50
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-----POLITICS NB-----
51
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-----THEORY-----
DEFENSE
1NC evidence proves states can do the plan, proving its both a
necessary test of the Aff and predictable
Reciprocal ---
A) The Aff uses the federal government, which has thousands of
actors
B) They fiat state and local enforcement --- and if not, the plan
would be rolled back
Federal key warrants check --- they’re easy to find and beat the
counterplan regardless of how many actors it fiats
OFFENSE
Increases Aff ground --- they can read multiple disads to state action
52
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likely to be the allocation of sovereignty, because the need for unity among the federating states may conflict
with their desire for autonomy.
53
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2NC – 50 STATE FIAT
Best policy option justifies ---- it’s the most real world standard,
which is educational
Pryor ‘01
(C. Scott, Associate Prof – Regent U. School of Law, American Bankruptcy Institute Law Review,
Spring)
n7 NCCUSL is a national organization of practicing lawyers, judges, law professors, and others appointed
by the governors of each of the states. NCCUSL drafts uniform laws in various fields and then
proposes them to the various state legislatures for adoption. See Edward J. Janger, Predicting When the
Uniform Law Process Will Fail: Article 9, Capture, and the Race to the Bottom, 83 IOWA L. REV. 569, 586 (1998)
(describing problem of "capture" in drafting process); Alan Schwartz & Robert E. Scott, The Political Economy of
Private Legislatures, 143 U. PA. L. REV. 595, 651 (1995) (stating that problems stemming from reliance on "ill-
informed generalists" and influence of interest groups may be unavoidable for any official organization whose goal is
to foster uniformity of state laws).
54
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=====LOPEZ CP=====
LOPEZ CP 1NC
Text --- In an appropriate test case, the United States Supreme Court
should issue a narrow ruling that federal authority over
_______________________________________________________________
______________________________________________________________________________
________ commandeers the states’ legislative functions in violation of
the 10th and 11th Amendments. The Supreme Court should devolve
authority of this narrow ruling to the State Governments and United
States Territories.
The Court can make this ruling and devolve power to the states --- it
won’t be rolled back
Miller ‘98
(Mark A., Attorney at Law – Baker Botts LLP, Cleveland State Law Review, Lexis)
The history of the Tenth Amendment is an appropriate starting point in the development of substantive federalism. For
a long period of time, the Tenth Amendment operated as nothing more than a plain statement of the obvious that
afforded little protection to the states. 249 In the aftermath of Garcia, state sovereignty was left to the political
processes. 250 Tenth Amendment power was reborn in New York v. United States when the Court held
that Congress could not commandeer the states' legislative function. 251 This protection is
decreed no matter how strong the federal interest in the legislation may be. 252 Protections
over state sovereignty were expanded again in the 1996 Term when the Court invalidated certain portions of the Brady
Act. 253 According to Printz, Congress cannot force the states' executive branches to enact federal regulatory programs
regardless of the federal interest involved. 254 Whenever the structural framework of dual sovereignty is compromised,
the Tenth Amendment steps in to prevent a usurpation of federalism. 255 Printz and New York held
that Congress was incapable of commanding the states to take a course of action that it could not undertake directly.
256 But what happens if Congress breaches the Tenth Amendment through an Article I power like the Spending
Clause? Do the Court's enunciated protections extend to Article I? These are the questions that the theory of substantive
federalism answers. The restraint on Article I began, to large extent, in Garcia when Justice O'Connor predicted that the
Commerce power would be affirmatively limited [*191] by state autonomy. 257 The door was further opened in New
York when the plenary nature of the Commerce Clause was labeled as "subversive" to the interests of state sovereignty.
258 United States v. Lopez put the first nail in the coffin when it struck down an exercise of the
Commerce power as going so far as to approach a "police power of the sort retained by the States." 259 The
Commerce Clause, in other words, authorizes control over interstate commerce, but does not authorize regulation of the
states. 260 Seminole Tribe, however, lends the greatest support to the substantive federalism theory. The Eleventh
Amendment -- a core guardian of state sovereign interests 261 -- withstands any attempt by
Congress to pierce the shield of federalism with Article I. 262 Similar to the Tenth Amendment, the
Eleventh Amendment once provided little protection to the states when Congress flexed its Article I muscle. 263 Along with the
strengthening of the Eleventh Amendment, New York and Printz add to the growth of federalism and the devolution of unrestricted
congressional power. The same 5-4 majority 264 has written the opinions in New York, Lopez, Seminole Tribe, and Printz, and it is
only a matter of time before the rationale in Seminole Tribe is extended to the Tenth Amendment as a limit on the Spending Clause.
265 Substantive federalism presents the argument that the Tenth Amendment will be used in much the same manner as the Eleventh
Amendment was used in Seminole Tribe. If a core principle of state sovereignty will be encroached upon by an Article I power, the
55
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Tenth Amendment prohibits the intrusion. 266 On the other side of the coin, Congress must look to the Tenth Amendment and ask
whether its proposed legislation will impinge upon principles of federalism. If substantive federalism can operate to
block congressional action under the Commerce Clause, then it can also curtail the Spending
power. 267
56
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LOPEZ CP 1NC
STATES SOLVE -- BEST SUITED FOR RENEWABLES PROMOTING RENEWABLES AND THEY
ENCOURAGE FEDERAL MODELING
Dr. Harlan L. Watson, Senior Climate Negotiator and Special Representative and Head of the U.S.
Delegation to the UN Framework Convention on Climate Change, “Statement to the Second Meeting of the
Plenary,” 12-4-2003 (http://www.state.gov/g/oes/rls/rm/2003/26894.htm)
Finally, I would like to highlight the efforts being made by State and local governments in the United States
to address climate change. Geographically, the United States encompasses vast and diverse climatic zones
representative of all major regions of the world -- polar, temperate, semi-tropical, and tropical -- with
different heating, cooling, and transportation needs and with different energy endowments. Such diversity
allows our State and local governments to act as laboratories where new and creative ideas and methods
can be applied and shared with others and inform federal policy -- a truly bottom-up approach to
addressing global climate change. At the State level, 40 of our 50 States have prepared GHG inventories,
27 States have completed climate change action plans, and 8 States have adopted voluntary GHG emissions
goals. In addition, 13 States have adopted “Renewable Portfolio Standards” requiring electricity generators
to gradually increase the portion of electricity produced from renewable resources such as wind, biomass,
geothermal, and solar energy. And, at the local level, more than 140 local governments participating in the
Cities for Climate Protection Campaign are developing cost-effective GHG reduction plans, setting goals,
and reducing GHG emissions.
Calabresi ‘95
(Steven G., Assistant Prof – Northwestern U., Michigan Law Review, Lexis)
The prevailing wisdom is that the Supreme Court should abstain from enforcing constitutional limits on federal power
for reasons of judicial competence and because the Court should spend essentially all its political capital enforcing the
Fourteenth Amendment against the states instead. This view is wrong. First, the rules of constitutional
federalism should be enforced because federalism is a good thing, and it is the best and most
important structural feature of the U.S. Constitution. Second, the political branches cannot be relied upon to enforce
constitutional federalism, notwithstanding the contrary writings of Professor Jesse Choper. Third, the Supreme
Court is institutionally competent to enforce constitutional federalism. Fourth, the Court is at least as
qualified to act in this area as it is in the Fourteenth Amendment area. And, fifth, the doctrine of stare [*831] decisis
does not pose a barrier to the creation of any new, prospectively applicable Commerce Clause case law. The
conventional wisdom is that Lopez is nothing more than a flash in the pan. 232 Elite opinion holds that the future of
American constitutional law will involve the continuing elaboration of the Court's national codes on matters like
abortion regulation, pornography, rules on holiday displays, and rules on how the states should conduct their own
criminal investigations and trials. Public choice theory suggests many reasons why it is likely that the Court will
continue to pick on the states and give Congress a free ride. But, it would be a very good thing for this
country if the Court decided to surprise us and continued on its way down the Lopez path. Those
of us who comment on the Court's work, whether in the law reviews or in the newspapers, should encourage the Court
to follow the path on which it has now embarked. The country and the world would be a better place if it did. We have
seen that a desire for both international and devolutionary federalism has swept across the world in
recent years. To a significant extent, this is due to global fascination with and emulation of our
own American federalism success story. The global trend toward federalism is an enormously
positive development that greatly increases the likelihood of future peace, free
trade, economic growth, respect for social and cultural diversity, and protection of
individual human rights. It depends for its success on the willingness of sovereign nations to
strike federalism deals in the belief that those deals will be kept. 233 The U.S. Supreme Court
can do its part to encourage the future striking of such deals by enforcing vigorously our own
American federalism deal. Lopez could be a first step in that process, if only the Justices and
the legal academy would wake up to the importance of what is at stake.
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States / Federalism
LOPEZ CP 1NC
Mead ‘92
(Walter Russell, Senior Fellow – Council on Foreign Relations, New Perspectives Quarterly,
Summer, p. 30)
The failure to develop an international system to hedge against the possibility of worldwide
depression- will open their eyes to their folly. Hundreds of millions-billions-of people around the
world have pinned their hopes on the international market economy. They and their leaders
have embraced market principles-and drawn closer to the West-because they believe that our
system can work for them. But what if it can't? What if the global economy stagnates, or even
shrinks? In that case, we will face a new period of international conflict: South against North,
rich against poor. Russia. China. India-these countries with their billions of people and their
nuclear weapons will pose a much greater danger to world order than Germany and Japan did
in the 1930's.
58
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States / Federalism
COURT CAN DEVOLVE
59
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FEDERALISM NET BENEFIT
Calabresi ‘95
(Steven G., Assistant Prof – Northwestern U., Michigan Law Review, Lexis)
The Supreme Court's recent decision in United States v. Lopez 2 marks a revolutionary and long
overdue revival of the doctrine that the federal government is one of limited and
enumerated powers. After being "asleep at the constitutional switch" for more than fifty years, the Court's
3
decision to invalidate an Act of Congress on the ground that it exceeded the commerce power must be
recognized as an extraordinary event. Even if Lopez produces no progeny and is soon overruled, the
opinion has shattered forever the notion that, after fifty years of Commerce Clause precedent,
we can never go back to the days of limited national power. The Lopez Court has shown us that we can
go back, if we want to, so long as: 1) we can figure out a workable theory of the limits on the federal commerce power;
2) we can agree on the propriety of vigorous judicial review in federalism cases; and 3) we can take proper account of
the important reliance interests that have accrued around certain key precedents decided in the past half century.
Calabresi ‘95
(Steven G., Assistant Prof – Northwestern U., Michigan Law Review, Lexis)
The very real danger is that the Supreme Court will end up conferring legitimacy on congressional and presidential
usurpations of state power that might be resisted more vigorously in the absence of federal judicial review. The
advantages of constitutional federalism will not be obtainable if the Court hands down
decisions like Lopez only once every ten years. National judicial umpiring of federalism
boundaries will be useful only if the courts invalidate usurpations with some frequency, thus
justifying the public confidence that the judiciary really is doing its duty in this category of
cases.
Ernest Young, Law Professor, University of Texas, TEXAS LAW REVIEW, November 2004, pp.
135-6
The structure of the Court's current Commerce Clause doctrine bears this conclusion out. The Court has conceded that
the national economy has become integrated to the extent that there is no meaningful distinction between intra-and
inter-state commerce; rather, there is just "commerce." And the Court has also eschewed any effort to
compartmentalize the various forms of economic activity, as it once sought to distinguish between "commerce" and
"manufacturing" or "agriculture." Now all of these things are "commerce"; that term, the Court has made clear,
comprehends all "economic activity." Nonetheless, it is important to maintain some enforceable limit on the Commerce
Clause. Precisely because these cases are so high profile, they play an important symbolic role. As I have already
suggested, they may serve an important process function of reminding Congress to consider the limits of its powers
when it acts. At the same time, limits on the Commerce Clause are closely linked to the states' autonomy; those limits,
after all, preserve a zone of regulatory authority that Congress may not preempt. This is true even though the particular
statutes at issue in Lopez and Morrison were not preemptive - that is, they did not forbid parallel state legislation on the
same subjects. If Congress were to attempt to supplant state autonomy to make regulatory decisions over physician-
assisted suicide or gay marriage, for example, Lopez and Morrison would likely offer the most promising basis for
challenging such legislation.
60
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States / Federalism
A2: ROLLBACK
This jacks the Aff – if the plan is inherent, it’d get rolled back too
and you should vote negative on presumption.
Goldsmith ‘97
(Jack, Associate Prof – U Chicago, Virginia Law Review, November, Lexis)
The rise in subnational foreign relations activity tells us little, of course, about the activity's normative desirability. But
we should also avoid the automatic assumption that this development is normatively undesirable. This is especially true
because the federal political branches have made clear that, in contrast to traditional foreign relations
activities which largely have been federalized through statute and treaty, they do not always, or even usually,
prefer federal regulation of these new foreign relations issues. The recent increase in state and
local involvement in such issues "has occasioned little reaction from Congress or the
Executive." 232 And when the political branches do react, they often choose to protect state
interests over foreign relations interests when the two appear to clash. A good
example is the United States' recent ratification of a variety of international human rights treaties. 233 These treaties
create numerous potential [*1675] conflicts with state law. 234 In the face of international pressure, the President and
Senate have consistently attached reservations, understandings, and declarations to these treaties to ensure that they do
not preempt or affect inconsistent state law. 235 Similarly, California's worldwide unitary tax on multinational
corporations has provoked enormous diplomatic controversy with our closest trading partners since the
1980s. 236 The President negotiated a treaty that would have preempted this law, but the Senate withheld its consent.
237 And in the face of substantial pressure from foreign governments, Congress consistently failed to enact
legislation preempting the unitary tax. 238
Goldsmith ‘97
(Jack, Associate Prof – U Chicago, Virginia Law Review, November, Lexis)
Even when the political branches enact preemptive federal foreign relations law, they often
do so in a manner that reflects the interests of the states and minimizes intrusion on their
prerogatives. When Congress codified the international law standards for determinations of foreign
sovereign immunity, it ensured that otherwise-applicable state law would continue to govern the
merits of such suits. 239 Similarly, in federal implementing legislation for the Uruguay Round of the General
Agreement on Tariffs and Trade ("GATT"), "political sensitiv- [*1676] ity to state sensibilities were [sic] reflected in
several ways." 240 Most significantly, the legislation "precluded the agreements from having any direct effect, and
indeed required an action by the United States Government for the purpose of striking down a state law." 241 In
addition, the federal government has actively cooperated with and supported the unilateral state economic activities
described above. 242 The overtly political international activities of states, such as nuclear-free ordinances and state
divestment movements, are more controversial. For example, Congress by statute overruled several governors'
resistance to allowing the participation of national guard troops in Central American military activities in the mid-
1980s. 243 But Congress declined to preempt the most notorious recent state foreign relations activity - state sanctions
against South Africa - when it enacted the Anti-Apartheid Act of 1986, 244 and Massachusetts's recent sanctions
against Myanmar 245 soon led to similar sanctions by the federal government. 246
61
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States / Federalism
A2: UNIFORMITY
Fiat solves --- all 50 states act at once and establish the same law ---
it’d be uniform.
Goldsmith ‘97
(Jack, Associate Prof – U Chicago, Virginia Law Review, November, Lexis)
There is thus good reason to believe that an asymmetry in likely political branch responses privileges judicial mistakes
in creating a federal common law of foreign relations. The doctrine also suffers from other serious problems. Its
standard-like inquiries suggest that its promise of uniformity in federal foreign relations law is
illusory. There is every reason to expect that judges who lack training and expertise in foreign relations will reach
different conclusions about the foreign relations consequences of particular state acts. This problem is exacerbated by
the fact that most of the federal common law of foreign relations is made by the relatively decentralized lower federal
and state courts. Casual empiricism confirms the prediction of nonuniformity. The many cases in which judges
federalize an issue under a foreign relations rubric are matched by many similar cases in which judges, because they
view the foreign relations effects of applying state law differently, decide to apply state law. [*1695] This means
307
that both the source and the content of the law are uncertain in these cases - hardly the good
the federal common law of foreign relations is thought to serve.
Calabresi ‘95
(Steven G., Assistant Prof – Northwestern U., Michigan Law Review, Lexis)
a. Responsiveness to Local Tastes and Conditions. The opening argument for state power is that social tastes and
preferences differ, that those differences correlate significantly with geography, and that social utility can be
maximized if governmental units are small enough and powerful enough so that local laws can
be adapted to local conditions, something the national government, with its uniform
lawmaking power, is largely unable to do. Consider here the following example offered by Professor
66
McConnell: Assume that there are only two states, with equal populations of 100 each. Assume further that 70 percent
of State A, and only 40 percent of State B, wish to outlaw smoking in public buildings. The others are opposed. If the
decision is made on a national basis by a majority rule, 110 people will be pleased, and 90 displeased. If a separate
decision is made by majorities in each state, 130 will be pleased, and only 70 displeased. The level of satisfaction will
be still greater if some smokers in State A decide to move to State B, and some anti-smokers in State B decide to move
to State A. As McConnell's example shows, federalism can produce, at least in some admittedly abstract situations, a
67
net gain in social utility. This lends credence to the argument made above that federalism sometimes can alleviate
the problem of raw majority rule, the key problem generated by democratic government.
62
ENDI ‘08
States / Federalism
A2: HEG DA
A) High now
Goldsmith ‘97
(Jack, Associate Prof – U Chicago, Virginia Law Review, November, Lexis)
Third, as foreign relations has expanded to include formerly domestic concerns, the participants
in foreign relations have changed. National governments do not enjoy a monopoly over the
conduct of foreign relations as conceived in modern times. Throughout the world, subnational units
like the U.S. states have joined international organizations, multinational corporations, and other non-national
actors in the conduct and regulation of international affairs. This in part reflects the fact that our
228
conception of foreign affairs has changed to include many [*1674] matters under the traditional control of subnational
units. But it also reflects the more active role that subnational units (and other non-national actors) have
taken in transnational political and economic affairs. As international markets and means of
communication have expanded, subnational units have become increasingly aware of, affected by,
and in contact with foreign elements. To the extent that central governments are unable or
229
unwilling to redress local needs and interests, state and local governments have been doing so
unilaterally in both the economic and political realms.
230 231
B) Its increasing
Goldsmith ‘97
(Jack, Associate Prof – U Chicago, Virginia Law Review, November, Lexis)
In short, foreign relations is no longer "a distinct issue area: it is about "something' and that "something'
has come to embrace [*1677] an increasingly large number of issues once assumed to be the preserve of domestic
politics." Foreign relations includes many matters traditionally regulated by states. States are increasingly
247
engaged in activities that were formerly the sole responsibility of the federal government. The
political branches do not always (or even usually) prefer national foreign relations interests over state interests, or
uniform federal regulation to non-uniform state law regulation of an issue, even if the issue provokes complaints from
foreign governments.
Goldsmith ‘97
(Jack, Associate Prof – U Chicago, Virginia Law Review, November, Lexis)
In this light, the oft-stated but little-analyzed notion that state activity prevents the federal
government from speaking with "one voice" in foreign relations makes little sense. The
federal government itself rarely speaks with one voice in foreign relations. 286 Foreign
relations law is replete with struggles between the statute-makers, the treaty-makers, the President, and
sometimes the courts, for control of the federal foreign relations voice. 287 As Edward Corwin correctly noted, the
Constitution's [*1689] allocation of foreign relations power among the political branches is an "invitation to struggle"
for control of the conduct of U.S. foreign relations. 288 The Constitution does not purport to limit activity that affects
foreign affairs to a single person or voice; at best, it provides a mechanism for final authoritative decisionmaking in
foreign relations. 289 In addition, it is difficult to see how state activities could ever prevent the
federal government from exercising its foreign relations powers. The federal political branches
always retain the power to preempt state law or activity. 290 Any argument that federal preemption is not
always available assumes a breakdown in the federal political process of precisely the sort that I have just questioned.
63
ENDI ‘08
States / Federalism
A2: PRECEDENT DA’S
Fiat solves --- our counterplan has the Court devolve in a “narrow
ruling” that won’t create precedent
64
ENDI ‘08
States / Federalism
A2: NO TEST CASE
Fiat solves --- the counterplan requires the court to rule, regardless
of a case.
David Adamany, Professor @ Wayne State, The American Courts: A Critical Assessment, 1990 p.9
Since Congress adopted the Judges Bill of 1925, most cases on the appellate and miscellaneous dockets have been by
writ of certiorari — a request for the justices to hear cases that they may, but are not required, to hear. Under Supreme
Court Rule 17, which gives broad categories of cases that the Court may hear, at least four justices must agree to hear a
case before it is considered by the Court. Some cases on the appellate docket have been “appeals by right,” certain
cases involving the constitutionality of state or federal laws or state constitutional provisions. By law, the Court was
required to hear these cases; but the justices developed broad discretion by rejecting cases that failed to pose a
substantial federal question as defined by the justices. In 1988, Congress revised the law virtually to eliminate appeals
by right, thus giving the justices almost complete choice about what cases to decide. With more than 5.000
cases pending annually, the Supreme Court can almost always find a case to raise any
policy issue that the justices wish to decide. Chief Justice Earl Warren apparently asked his law clerks to
fmd a case on the Court’s docket that would allow the justices to overrule a previous decision holding that there was no
right for the poor to have an attorney in every criminal trial. The clerks found such a case, and the Court used it to
announce a new constitutional rule guaranteeing the right to counsel (Danelski and Danelski 1989, 508). The Court
has sometimes gone to great lengths to find the issue it wants to decide. In the landmark case of
Mapp v. Ohio (367 U.S. 617 [1961]), the Court held that illegally seized evidence could not be used in state criminal
trials. But the dissenting justices accused the majority of “reaching out” to find that issue in the brief of amicus curiae,
because the jurisdictional statements, briefs, and oral arguments of the parties had all been devoted to First Amendment
free speech issues. Where the Court cannot find an issue on its docket, it may order parties to
argue an issue that the justices want to consider. Over the strong objection of four justices that the
majority was raising “a question not presented” by the parties, five justices ordered the parties in Patterson v. McLean
Credit Union (485 U.S. 617 [1988]) to rearue the case to determine whether the Court’s 1976 interpretation of a federal
civil rights statute should be reconsidered and changed. The majority pointed out four previous cases within the past
twenty years when the Court had also ordered reargument to determine whether an earlier decision should be
reconsidered and changed.
65
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States / Federalism
A2: PERM – DO BOTH
Gardbaum ‘97
(Stephen, Associate Prof – Northwestern U., Texas Law Review, March, Lexis)
[*796] Despite their diametrically opposed conclusions, however, a fundamental premise is shared by both
sides in this long-standing debate -- a premise that characterizes almost all analyses of American
federalism. This shared premise is that the existence of areas of exclusive state power is a
necessary condition of constitutional federalism: in order for federalism to operate as a
principle of constitutional law, there must in practice (and not merely in rhetoric or national myth) be
areas of regulatory authority reserved exclusively to the states -- areas in which Congress
cannot regulate. Given this shared premise, the debate has focused on whether or not such areas currently exist
constitutionally speaking, and its content consists largely of arguments for and against various proposed textual bases
for them. Leading candidates over the years have included the Commerce Clause, 6 the Tenth Amendment, 7 and the
Guarantee Clause. 8
66
ENDI ‘08
States / Federalism
A2: PERM – DO THE CP
Severance ---
A) The counterplan rules jurisdiction for the plan illegal, severing
guaranteed enforcement of the plan.
B) Voting issue because severance allows the Aff to shift out of
all Neg ground.
Not topical --- the states implement the plan, violating the phrase
“Federal Government” which means at a national level. Wholly non-
topical permutations are a voting issue because they prove that the
Aff has shifted from the 1AC.
Weinburg ‘95
(Louise, Professor Jurisprudence – U Texas, Brigham Young University Law Review, Lexis)
In Pennhurst State School & Hospital v. Halderman, 40 an [*745] important 1984 case, the Supreme Court
placed certain state-law claims within the truly exclusive jurisdiction of state courts. The
Court found constitutional authority in the Eleventh Amendment to hold that state-law claims for
injunctive relief against local officials may not be heard by federal courts in their pendent jurisdiction over federal
civil-rights claims. Pennhurst blocks federal court orders restraining state officials from
violating state law. Pennhurst thus devolves upon the states an exclusive jurisdiction over all injunction suits
against local authorities when pleaded as a matter of state law.
67
ENDI ‘08
States / Federalism
2NC – LOPEZ FIAT
DEFENSE
Reciprocal ---
A) The Aff uses the federal government, which has thousands of
actors
B) They fiat state and local enforcement --- and if not, the plan
would be rolled back
Err Neg --- the Aff has structural advantages like 1st and last speech
and the ability to choose their plan
OFFENSE
Increases Aff ground --- they can impact turn the Supreme Court or
state action
Checks topic explosion --- the Lopez counterplan forces “Federal Key
warrants” to exist before many Affs become popular, acting as a
topicality-like limit on research
Best policy option justifies ---- it’s the most real world standard, which is educational
68
ENDI ‘08
States / Federalism
=====AFF=====
-----FEDERALISM-----
UNIQUENESS – FEDERAL INCENTIVES NOW
69
ENDI ‘08
States / Federalism
UNIQUENESS – FEDERAL CONTROL NOW
In both the European Union (EU) and the United States (US) responsibility for the making of
environmental policy is divided between federal and EU institutions on one hand, and local
institutions on the other. The former is comprised of the EU and the American federal
government while the latter consist of state and local governments in the US, and member
states and sub-national authorities in Europe. (For ease of presentation, we will at times refer
to both of the former as central authorities and both of the latter as states.) Historically,
environmental rules and regulations were primarily made at the state or local level on both
sides of the Atlantic. However the emergence of the contemporary environmental movement
during the late 1960s and early 1970s led to greater centralization of environmental policy-
making in both the US and Europe. In the US, this change occurred relatively rapidly. By the
mid 1970s, federal standards had been established for virtually all forms of air and water
pollution. By the end of the decade, federal regulations governed the protection of
endangered species, drinking water quality, pesticide approval, the disposal of hazardous
wastes, surface mining and forest management, among other policy areas. The federalization
of American environmental policy was strongly supported by pressures from environmental
activists, who believed that federal regulation was more likely to be effective than at the state
level.
70
ENDI ‘08
States / Federalism
GENERAL NO LINK
Tuskey ‘05
(John, Associate Prof – Regent U. School of Law, Capitol University Law Review, Fall, Lexis)
As to the first question-where and how federalism is embodied in the Constitution-the Constitution
accomplishes the division of power between the federal and state governments by
empowering the federal government to exercise only those powers delegated to it in the
Constitution. The Constitution establishes the federal government's three branches and sets forth the powers each
branch may exercise. Implicit in this is the idea that the federal government may exercise only those powers the
7
Constitution sets forth (or those powers fairly implied from the powers set forth). All other governmental power rests
8
with the states or the people. The Tenth Amendment makes explicit what constitutional structure implies: "The powers
not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people." It follows that Congress violates federalism limits when it acts outside its
9
constitutionally delegated powers. If Congress enacts a statute that is within its power to enact,
10
even if that statute somehow restricts state action, Congress has not violated the
principle of federalism. However, if that statute is not within Congress's power to enact, Congress has violated the
principle of federalism by restricting state action without constitutional [*155] authority or by usurping a power that
belongs to the states or people under the Constitution.
11
71
ENDI ‘08
States / Federalism
NO THRESHOLD
Young ‘03
(Ernest, Prof Law – U Texas, Texas Law Review, May, Lexis)
One of the privileges of being a junior faculty member is that senior colleagues often feel obligated to read one's rough
drafts. On many occasions when I have written about federalism - from a stance considerably more sympathetic to the
States than Judge Noonan's - my colleagues have responded with the following comment: "Relax. The States
retain vast reserves of autonomy and authority over any number of important areas. It will be
a long time, if ever, before the national government can expand its authority far enough to
really endanger the federal balance. Don't make it sound like you think the sky is falling."
Robert F. Nagel, Law Professor, University of Colorado, 2001 (ANNALS OF THE AMERICAN
ACADEMY OF POLITICAL AND SOCIAL SCIENCE, March, p. 53)
In what appears to be an ambitious campaign to enhance the role of the states in the federal system, the Supreme
Court has recently issued a series of rulings that limit the power of the national government.
Some of these decisions, which set boundaries to Congress's power to regulate commerce and to enforce
the provisions of the Fourteenth Amendment, establish areas that are subject (at least in theory) only to state regulation.
Others protect the autonomy of state governments by restricting congressional authority to expose state governments to
suit in either state or federal courts and to "commandeer" state institutions for national regulatory purposes. Taken
together, these decisions seem to reflect a judgment--held by a slight majority of the justices--that the
dramatic expansion of the national government during the twentieth century has put in
jeopardy fundamental principles of constitutional structure.
Federalism is resilient
72
ENDI ‘08
States / Federalism
NOT ZERO SUM
States and Federal power aren’t zero sum --- concurrent regulation
is the norm
Schapiro ‘06
(Robert, Prof Law – Emory, Fordham Law Review, March, Lexis)
The jurisprudence of Justice John Paul Stevens advances a strong vision of national unity. Like Justice Wiley Rutledge,
for whom he clerked, Justice Stevens understands the United States Constitution as a document fundamentally designed
to promote and preserve the union. The primary role of federal courts is to vindicate constitutional values, including the
value of national unity. These background principles of unity provide the context for Justice Stevens's conception of
federalism. In his thirty-five years on the bench, Justice Stevens has elaborated a robust theory of
federalism. His theory, however, contrasts sharply with the dualist federalism that became the regnant
model of the Rehnquist Court. Dual federalism, the idea that the national government and the states
enjoy exclusive and nonoverlapping spheres of authority, does not describe the actual
operation of government in the United States today. On the contrary, the overlap of national and
state activities is ubiquitous. In areas ranging from narcotics trafficking n1 to securities trading to education,
concurrent federal and state regulation is the norm. With the recent wave of national crises, including the
War on Terrorism and Hurricane Katrina, the growth of state and national power and the resulting overlap in authority,
seems likely to increase. Even in the more rarified atmosphere of the United States Supreme Court, the normative
project of fully dividing state from federal power has little support. Since the advent of the New Deal Court in 1937,
the Court no longer seeks to maintain strict boundaries between state and federal realms. On
the present Court, only Justice Clarence Thomas has shown any inclination to return to the pre-New Deal conceptions
of dual sovereignty.
73
ENDI ‘08
States / Federalism
US FEDERALISM NOT MODELED
Newsweek ‘06
[1/31, http://www.msnbc.msn.com/id/6857387/site/newsweek/]
AMERICAN DEMOCRACY: Once upon a time, the U.S. Constitution was a revolutionary document, full of epochal
innovations—free elections, judicial review, checks and balances, federalism and, perhaps most important, a Bill of
Rights. In the 19th and 20th centuries, countries around the world copied the document, not least in Latin America. So
did Germany and Japan after World War II. Today? When nations write a new constitution, as dozens have in the past
two decades, they seldom look to the American model.
When the soviets withdrew from Central Europe, U.S. constitutional experts rushed in. They got a polite hearing, and
were sent home. Jiri Pehe, adviser to former president Vaclav Havel, recalls the Czechs' firm decision to adopt a
European-style parliamentary system with strict limits on campaigning. "For Europeans, money talks too much in
American democracy. It's very prone to certain kinds of corruption, or at least influence from powerful lobbies," he
says. "Europeans would not want to follow that route." They also sought to limit the dominance of television, unlike in
American campaigns where, Pehe says, "TV debates and photogenic looks govern election victories." So it is
elsewhere. After American planes and bombs freed the country, Kosovo opted for a European constitution. Drafting a
post-apartheid constitution, South Africa rejected American-style federalism in favor of a German model, which
leaders deemed appropriate for the social-welfare state they hoped to construct. Now fledgling African democracies
look to South Africa as their inspiration, says John Stremlau, a former U.S. State Department official who currently
heads the international relations department at the University of Witwatersrand in Johannesburg: "We can't rely on the
Americans." The new democracies are looking for a constitution written in modern times and reflecting their
progressive concerns about racial and social equality, he explains. "To borrow Lincoln's phrase, South Africa is now
Africa's 'last great hope'."
74
ENDI ‘08
States / Federalism
LOPEZ CP HURTS FEDERALISM – 2AC
Calabresi ‘01
(Stephen G. Prof Law @ Northwestern, Annals of the American Academy of Political And Social
Science, v574, March, p. 33)
I fully agree that the Court ought to approach enforcement of the commerce clause and Section 5 power with restraint
and that only in cases of egregious overreaching should acts of Congress be struck down. Congressional efforts to
enforce the commerce power or Section 5 deserve to be given the benefit of the doubt both because of Congress’s
greater information about the real world and because Congress is a coequal interpreter of the Constitution to the
Supreme Court. But giving Congress the benefit of the doubt does not mean rubber-stamping everything that Congress
has tried to do, as happened from 1937 to 1995. Sometimes in extreme cases, it is valuable for the Court to remind
Congress of the constitutional values of federalism, and this is what I think happened in Lopez, City of Boerne, and
Morrison. In each of these cases, Congress was attempting novel federalism solutions to problems that a majority of the
states seemed to be handling very well. It was accordingly appropriate for the Court to slow Congress down by forcing
it to take a second look at what it had in haste done in each of these areas (Calabresi 1995).
Calabresi ‘95
(Steven G., Assistant Prof – Northwestern U., Michigan Law Review, Lexis)
First, I do not think the federal courts can ignore the powerful reliance interests that have
grown up around the statutes enacted during and after the New Deal in reliance on a broader understanding
of the Commerce Clause. Congress itself can repeal statutes for federalism reasons, as it is now doing, without
worrying about considerations of precedent. The legislative process is such that new laws can be phased in over a
period of many years thus accommodating reliance interests quite readily. The judicial process is much more rigid,
however, and sudden mass overrulings would cause social disruption that the Court could
do little to soften. The likeliest social reaction, in my view, to a sudden judicial abrogation of the
New Deal would be a constitutional amendment formalizing the currently flawed case law
understandings of the scope of congressional power. This result wrongly would upset the
public while setting back if not destroying the cause of federalism. I therefore think it would be a
grave mistake for the Court to overrule abruptly key New Deal precedents, many of which even may be defensible
under the functional theory of federalism set out in Part I.
Mouton ‘99
(H. Geoffrey, Prof Law, Minnesota Law Review, April, Lexis)
Despite the Court's apparent nostalgia for a dramatically smaller national government, no judicially enforced federalism
doctrine is going to undo the last quarter of the nation's history. And while cases like New York, Lopez, and Printz may
on occasion stimulate important debate, such as the examination of federal criminal law that has followed Lopez, they
will never have more than the most marginal relevance to the allocation decisions that matter most. Those who truly
believe in the instrumental values of federalism should therefore focus not on persuading courts to undo congressional
"mistakes," but rather on promoting wise institutional choice in the political process.
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FEDERALISM BAD – ETHNIC CONFLICT
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FEDERALISM BAD – INDONESIA
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FEDERALISM BAD – INDONESIA
Menon ‘01
(Rajan, Prof International Relations – Lehigh U., The National Interest, June, Lexis)
Indonesia may survive the combined assault of an ailing economy, deepening separatism, and a failing state. Such an
outcome is certainly desirable, but it is not likely. American leaders must therefore brace for the possibility that
Indonesia could still collapse in chaos and disintegrate in violence. Alternatively, the current instability
could continue until economic recovery and political compromise give rise to a country of a rather different shape and
size. With Wahid gone and Megawati in place, this is now somewhat more likely. Even the loss of Aceh and
West Papua need not spell national disintegration; without such provinces Indonesia would still retain the critical
mass to endure as a state. The second of these denouements is preferable to the first, but both will create strong
shock waves. Indonesia's size and location are the reasons why. The three major straits that slice
through it are pivotal passages for the global economy. Malacca is by far the most important,
particularly for energy shipments. Some 450 vessels and about 10 million barrels of oil pass through daily, and East
Asian demand, driven by China, is expected to rise from 12 million barrels a day in 2000 to over 20 million barrels in
twenty years. Japan, China, Taiwan and South Korea would suffer severely and soon if fallout from
turmoil in Aceh (at its northern end) or Riau (at its southern end) blocked this passage. Its narrowness, 1.5 miles in
the Phillips Channel in the Singapore Strait, and ten miles between Singapore and the Riau archipelago, adds to the danger. The Lombok Strait, which
ships use to sail to northeast Asia through the Strait of Makasar between Borneo and Sulawesi, is next in importance, although it handles a far smaller
volume of traffic than Malacca and is of negligible importance for energy shipments. The Lombok-Makasar route is, however, a critical corridor for
Australia's coal and iron ore exports to northeast Asia and for manufactured exports moving south from there. It is also the most likely detour were
Malacca rendered impassable or hazardous. By comparison, Sunda is a minor shipping channel; the consequences of its closure would be minimal for
transcontinental trade. Rerouting Malacca traffic through Lombok would strain the capacity of the world's merchant fleet, increase transportation costs,
and create severe bottlenecks. The problems would be even worse if all three straits were unusable and ships had to transit northeast Asia by skirting
Australia's northern coast. Market signals would eventually add other carrying capacity but the question is how quickly and smoothly the adjustment
occurs, and what the economic and political consequences would be in the meantime. The ramifications of blocked or delayed
maritime traffic, or even just panic over the possibility, would spread speedily throughout
globalization's many circuits. Insurance rates would rise; coverage may even be denied if underwriters deem the risks excessive. The effects of obstructed
energy, machinery and manufactured goods would register in capital markets, short-term investors would be scared off, and the flow of much-needed foreign direct investment into
a region still convalescing from the blows of 1997 would slow. Piracy in the seas around Indonesia would also worsen if the Jakarta government either ceased functioning or were
so busy holding the country together that it could not police its waters. The hijacking of ships has increased since Indonesia's upheavals began. There were 113 incidents in its
waters in 1999 compared to 60 the year before, and between January and March of 2001 alone, pirates attacked ships in Indonesian waters 29 times and on nine occasions in the
Malacca Strait. The vessels victimized near Malaysia, Singapore and Indonesia included several oil tankers and ships carrying aluminum and palm oil. The three countries began to
coordinate operations against the menace in 1992, and in 2000 Japan proposed that its coast guard join the effort along with China and South Korea. Yet how serious piracy
becomes, and how effective any joint solution is, depends primarily on the extent of Indonesia's stability. Refugee flows will also accelerate if Indonesia starts to break apart. The
refugee population of one million already within its borders will soar, dragging the economy down further and aggravating communal violence. Refugees could also be driven
beyond Indonesia into neighboring countries that are neither prepared to receive them nor able to bear the burden of caring for them. Malaysia, which lies across the water from
Aceh, has already seen rising illegal immigration from Indonesia, and its officials worry about the social tensions that could result. The refugee problem also figures prominently in
Australian and Singaporean discussions of Indonesia. Indonesia's neighbors have other worries, as well, as they watch this wobbly behemoth. For Malaysia, one is that the
Malaysian Islamic Party, already powerful in northern Malaysia, could receive a fillip were militant Islam to become more significant in Indonesia's politics as a result of the
turmoil-or were it to dominate its successor states. Thailand and the Philippines, which have breakaway Islamist groups in their southern regions, fear that Indonesia's collapse
could produce an undesirable demonstration effect. Papua New Guinea, which borders West Papua, could be swamped by refugees and also face an older problem: incursions from
the Indonesian military in hot pursuit of Papuan guerrillas. Singapore and Malaysia have invested in pipelines carrying energy from Riau and from Indonesia's Natuna gas fields
(located in the South China Sea between peninsular Malaysia and Sarawak) and are watching nervously. ASEAN, whose economic and political clout has fallen short of members'
hopes, will be reduced to a salon if Indonesia, its keystone, crumbles. Neither
is it clear how Japan, China and Australia would
react to various scenarios in Indonesia. Few convergent interests unite them, and history has done much to divide
them. This augurs ill for cooperation on economic assistance, refugee relief, piracy, or peacekeeping to stem
Indonesia's unraveling or to deal with the consequences if that proves impossible. Indeed, anarchy in Indonesia
could start a scramble among these states that is driven more by fear, uncertainty and worst-
case thinking than by the opportunistic pursuit of advantage. A process leading to sponsorship of competitive proxy
proto-statelets that rise from Indonesia's wreckage is an extreme scenario, but cannot be ruled out. Beyond the general
tendency of states divided by suspicion to jockey for position when uncertainty or opportunity prevails, there are other
specific motives for intervention. China could be drawn into the fray if Indonesia's seven-million-strong Chinese population, which
has often been a scapegoat in times of trouble, were to be victimized. Beijing's increasing concern for secure energy supplies since becoming a net importer in 1993 has already
made it more assertive in the South China Sea, and could provide another motive. Given Indonesia's uncertain future, Chinese maps depicting Beijing's jurisdiction over
Indonesia's Natuna gas fields are a worrisome portent, particularly for Malaysia and Singapore, who envision energy pipelines from this site. Japan would move cautiously if
Indonesia begins to resemble a lost cause, but it depends on Indonesia's straits and owns most of the ships that ply them. Tokyo cannot remain utterly passive if Indonesia's crisis
disrupts the Japanese economy, or if others states assert their interests in ways that could do so. Indonesia's importance for Australia goes beyond the significance of the Lombok-
Makasar passage. In a region being shaped by China's growing power, Indonesia, by virtue of its location and size, is central to Australian national security. Its collapse would lay
waste to much of Australia's strategic planning. The consequences of Indonesia's breakup would affect American interests, as well. American energy and raw materials companies
(Exxon-Mobil, Texaco, Chevron, Newmont Mining, Conoco and Freeport-McMoRan, among others) operate in Indonesia, particularly in Aceh, Riau, and West Papua, and many
of the ships that traverse the Strait of Malacca are American-owned. The United States is also a major trader and investor in East Asia and is to some degree hostage to its fate,
especially now that the American economy is slowing. Moreover, if
Indonesia fractures, worst-case thinking and preemptive action
among its neighbors could upset regional equilibrium and undermine the American strategic
canopy in East Asia. The United States has a network of bases and alliances and 100,000 military personnel in the
region, and is considered the guarantor of stability by most states-a status it will forfeit if it
stands aside as Indonesia falls apart. America's competitors will scrutinize its actions to gauge its
resolve and acumen. So will its friends and allies-Australia, Japan, Singapore, Thailand and South Korea-
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each of whom would be hurt by Indonesia's collapse.
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A2: IRAQ IMPACT
Rubini in 03
[Daniel L. Rubini is the Senior Advisor to the Ministry of Justice in Iraq, “Ask the White House,” 11-03,
http://www.whitehouse.gov/ask/20031113.html]
More evidence
Rubini in 03
[Daniel L. Rubini is the Senior Advisor to the Ministry of Justice in Iraq, “Ask the White House,” 11-03,
http://www.whitehouse.gov/ask/20031113.html]
The first action taken by the Coalition was to roll away 35 years of thuggery and eliminate rule by decree.
We did not “Americanize” the system, but have sought to reintroduce universal concepts of fundamental
fairness and due process. Rule of law can and is being accomplished, and the Iraqi system resembles more
the European civil code than the American system.
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A2: RUSSIA IMPACT
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-----STATES-----
2AC – STATES CP
Perm --- do both. Gets double solvency and solves the links.
We conclude with two general observations about the dynamics of environmental policy
in the federal systems of the US and the EU. On one hand, the continued efforts of both states
in the US and member states in the EU to strengthen a broad range of environmental
regulations suggest that fears of a regulatory race to the bottom may be misplaced. Clearly,
concerns that strong regulations will make domestic producers vulnerable to competition
from products produced in political jurisdictions with less stringent standards have not
prevented many states on both sides of the Atlantic from enacting many relatively stringent
and ambitious environmental standards. But on the other hand, the impact of such state
policies remains limited, in part because not all states will chose to adopt or vigorously
enforce relatively stringent standards. Thus in the long run, there is no substitute for
centralized standards; they represent the most important mechanism of policy diffusion.
Accordingly, the most important role played by state standards is to prompt more
stringent central ones. Unless this dynamic comes into play, the effectiveness of state
environmental regulations remains limited. It is not coincidental that the one case we have
examined in which both EU and US standards are the most comparable – and relatively
stringent - is automobile emissions, in which the American central government plays a
critical role in setting national standards. By contrast, the lack of a central government role
with respect to both packaging waste and climate change clearly reflects and reinforces the
relative laxity of American regulations in these policy areas. And the EU’s more centralized
policies in both areas reveal the greater vigor of its recent environmental efforts.
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2AC – STATES CP
Links to politics ---- Bush would take credit for the counterplan --- he
can spin anything in his favor
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EXT – INVESTMENT CLIMATE
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2AC – LOPEZ CP
Perm --- do both. Gets double solvency and solves the links.
A) Congress
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2AC – LOPEZ CP
B) Executive
Goldsmith ‘97
(Jack, Associate Prof – U Chicago, Virginia Law Review, November, Lexis)
The executive branch has special monitoring capabilities and preemptive lawmaking powers when foreign relations is
at issue. As for monitoring, it is inconceivable that the executive branch will be unaware of a
state's action that adversely affects U.S. foreign relations or unduly burdens the federal government's
ability to conduct foreign relations. The President is the primary agent of U.S. foreign relations and the primary organ
of communication with foreign governments. 266 And the executive branch receives all foreign government complaints
about state activity. When the executive branch identifies harmful state foreign relations activity, it
is much better positioned than Congress to address it. Foreign relations is (and is perceived to
be) the President's responsibility. He is thus more accountable for foreign relations problems than Congress,
and has a greater interest in redressing state-created foreign relations difficulties. The President
also has a massive executive branch bureaucracy at his disposal to monitor and
redress such difficulties. Importantly, the executive branch's ability to respond to these difficulties is not
burdened by collective action problems to nearly the same degree as Congress. 267 In addition, the President's
unique role in foreign relations enables him to redress unacceptable state foreign relations
activity in a variety of ways. First, he exercises special influence on the congressional foreign relations agenda
and the content of foreign relations legislation. 268 Second, he or one of his subordi- [*1685] nates can
communicate directly with states on behalf of the federal government in order to influence or alter the offensive state
activity. 269 Sometimes this communication is nothing more than an informal telephone call to the proper state or local official. Other
times the State Department will send a formal letter to the state urging it to cease its offensive behavior. And
sometimes the executive branch will file an amicus brief in state court. 270 These means of "informal" presidential
control are often employed and often, though not always, successful in changing the offending state behavior. 271
Third, the President has limited but important federal lawmaking powers that enable him, on his
own, to preempt state law that adversely affects the nation's foreign relations or the political branches' ability to
conduct such relations. Some of these powers derive directly from the Constitution itself. For example, incident to his power to
recognize foreign governments, 272 the President can enter into international agreements that preempt state law. The most famous
instance is the Litvinov Agreement, which officially recognized the Soviet Union and assigned all Soviet property in the United States
to the federal government. This "executive agreement" preempted inconsis- [*1686] tent state property and creditor law. 273 It also
ended state court uncertainty about the domestic effect of the Soviet Union's extraterritorial confiscations. 274
Goldsmith ‘97
(Jack, Associate Prof – U Chicago, Virginia Law Review, November, Lexis)
Nonetheless, these concerns need not affect the legitimacy of the federal common law of foreign relations. Although
federal courts might be generally unsuited to make federal foreign relations law on both legitimacy and competence
grounds, the adverse consequences of state-by-state regulation in the face of federal political branch
silence might be worse. States suffer from many of the same disabilities as federal courts in this context. Moreover,
federal courts, in contrast to the states, have independence from local political processes and, as a branch of the national government, are likely to be
more sensitive to national foreign relations interests. Even in the absence of strategic behavior by the states, one might think that, all things
being equal, suboptimal but uniform federal judge-made regulation of foreign relations is
preferable to the nonuniformity inherent in state-by-state regulation of a foreign relations
issue. 213 Finally, the federal common law of foreign relations is designed to protect political branch prerogatives in foreign relations that the political
branches themselves are structurally unsuited to protect. Any remaining concerns about the legitimacy or competence of the federal common law of
foreign relations are thus mitigated by the political branches' ability to override judicial errors in the development of such law.
Donahue ‘97
(John D., JFK School of Government, Disunited States, p. 42)
Even when states vary, of course, there are arguments for uniformity. Institutions and individuals who
live or do business in several states face the expense, bother, and confusion of coping with
different (and sometimes conflicting) rules. Inconsistencies among state laws and regulations
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can lead to disputes of great complexity and to resolutions of limited appeal. After taking its case all the
way to the Supreme Court, for example, a cruise ship operator won the right to be sued only in Florida by aggrieved passengers who had been on a trip
between Washington State and Mexico.
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EXT – CONGRESS ROLLBACK
Goldsmith ‘97
(Jack, Associate Prof – U Chicago, Virginia Law Review, November, Lexis)
Nonetheless, these concerns need not affect the legitimacy of the federal common law of foreign relations. Although federal courts might be generally
unsuited to make federal foreign relations law on both legitimacy and competence grounds, the adverse consequences of state-by-state regulation in the
face of federal political branch silence might be worse. States suffer from many of the same disabilities as federal courts in this context. Moreover,
federal courts, in contrast to the states, have independence from local political processes and, as a branch of the national government, are likely to be
more sensitive to national foreign relations interests. Even in the absence of strategic behavior by the states, one might think that, all things being equal,
suboptimal but uniform federal judge-made regulation of foreign relations is preferable to the nonuniformity inherent in state-by-state regulation of a
foreign relations issue. Finally, the federal common law of foreign relations is designed to protect
213
political branch prerogatives in foreign relations that the political branches themselves are
structurally unsuited to protect. Any remaining concerns about the legitimacy or competence
of the federal common law of foreign relations are thus mitigated by the political branches'
ability to override judicial errors in the development of such law.
Calabresi ‘95
(Steven G., Assistant Prof – Northwestern U., Michigan Law Review, Lexis)
Moreover, even when the Court is determined to resist the policy objectives of a lawmaking majority,
Dahl demonstrates that "Congress and the president do generally succeed in overcoming a
hostile Court on major policy issues." Dahl shows that when the Court strikes down a major
193
national policy initiative, Congress and the President typically repass the law in defiance of
the Court. These arguments, confirmed in recent scholarship, constitute an important rebuttal to those who profess
194
fear that national judicial activism someday might lead to a dangerous weakening of the constitutional powers of the
national government.
Goldsmith ‘97
(Jack, Associate Prof – U Chicago, Virginia Law Review, November, Lexis)
Nonetheless, the following observations seem appropriate. The likelihood of congressional redress for
untoward state activity will increase as does the clarity and extent of the threat posed to the
national interest. To the extent that state activity is less threatening, some would predict that Congress would be [*1683] less likely to respond,
since constituents and organized groups tend to care little about foreign relations issues. 263 But this analysis applies, if at all, only to traditional foreign
relations concerns such as foreign sovereign immunity. The GATT and North American Free Trade Agreement ("NAFTA") debates demonstrated that
as foreign relations comes to include political and economic factors that more broadly
implicate organized interests, the foreign relations lawmaking process will share many of the
characteristics of the domestic lawmaking process. As the GATT and NAFTA process showed, states as an interest group
will become more active in protecting their interests in these contexts. But as GATT and NAFTA also showed, two countervailing factors create special
pressure for the national political branches to federalize such matters. First, the expansion of the category of foreign relations enhances potential federal
power and creates new incentives for federal legislators to exercise this power to obtain increased political support from interested political groups. 264
Second, the demands of globalism create pressure for legal uniformity and harmonization that can be achieved most easily at the federal level. 265
Although these observations are admittedly general, they suggest that Congress is more likely to address state activity
that harms the national foreign relations interest than it is to address other harmful state acts.
But even assuming that Congress is relatively nonresponsive in this context, the need for a judge-made foreign relations
law still does not follow. This is because there is another federal foreign relations lawmaker: the executive branch.
[*1684]
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EXT – EXECUTIVE ROLLBACK
Goldsmith ‘97
(Jack, Associate Prof – U Chicago, Virginia Law Review, November, Lexis)
Much more significant than the President's constitutionally derived powers are the broad and numerous foreign
relations lawmaking powers delegated to the executive by Congress. 275 Congress has delegated these powers to the
executive precisely because the President has access to superior expertise and because structural
advantages allow the President to take quick and decisive action. The broadest such delegation is
the International Emergency Economic Powers Act ("IEEPA"). 276 Presidential lawmaking power under IEEPA is
triggered by "any unusual and extraordinary threat, which has its source in whole or substantial part outside the United
States, to the national security, foreign policy, or economy of the United States." 277 IEEPA enables the
President to respond quickly to suspend or invalidate state law whose application would interfere
with or impede the federal government's conduct of foreign relations. The best known example is President
Carter's invocation of IEEPA to lift state-law judicial attachments on Iranian assets and suspend private (largely state-
law governed) claims against Iran as part of the deal to secure the release of the hostages in Iran. 278
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EXT – VARIANCE
Bryner ‘02
(Gary, Dept Political Science @ Brigham Young U., Environs 26 Environs Envtl. L. & Pol'y J. 1,
Fall)
Federal agencies are believed to be insulated enough from resource-depleting communities to ensure preservationist
values are pursued. When agencies fail to protect resources or reduce pollution, the solution is to replace them with
more ambitious regulators and to strengthen the regulatory authority of federal officials. 2 A number of studies have
compared states according to their commitment to environmental protection and found significant variation in
expenditures, legal authority, methodologies to determine environmental quality, reporting [*3] requirements,
enforcement actions, and in the environmental standards they are authorized to set under federal law. 3
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A2: FEDERAL MODELING
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A2: STATES BEST – GENERAL
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TERRORISM DA – 2AC
Ledewitz ‘05
(Bruce, Prof Law Duquesne University School of Law, Duquesne University Law Review,
Summer, Lexis)
In terms of foreign-based terrorism, it is generally conceded that national governments must control
national borders, so in that context the issue of federalism does not arise. But in terms of terrorism occurring
internally from whatever source, whether domestic or foreign, the situation is quite otherwise. It has been argued
vigorously in the United States, for example, that, aside from taxing and spending powers, the central government lacks
a regulatory police power. Indeed, the Supreme Court has recently held, in cases acknowledged as
reinvigorating federalism, that Congress may not regulate weapons in schools 8 or violence against
women 9 and has also intimated that Congress may not regulate the crime of ordinary arson. 10 If these holdings
were taken seriously, and their consistent application is in doubt 11 , they might cripple central
government efforts to combat terrorism occurring within the United States. For example, terrorists in
other countries have already used violence against women to accomplish their political and religious goals. Were this to
occur in the United States, the Morrison case would simply have to be overruled, either expressly or impliedly, in order
for Congress to respond effectively. But, to acknowledge the incapacity of the states to fight terrorism without central
government leadership and control is to acknowledge that there really is, and must be, a central government police
power. Yet, the acceptance of such a national police power would be taken among many in the
United States to be a direct contradiction of federalism.
Impact is extinction
Alexander ‘03
(Yonah, Prof, Dir – Inter-University for Terrorism Studies, Washington Times, 8-28, Lexis)
contemporary terrorists have introduced a new scale of violence in terms of conventional and
Unlike their historical counterparts,
unconventional threats and impact. The internationalization and brutalization of current and future terrorism make it
clear we have entered an Age of Super Terrorism [e.g. biological, chemical, radiological, nuclear and cyber] with its
serious implications concerning national, regional and global security concerns. Two myths in particular must be debunked
immediately if an effective counterterrorism "best practices" strategy can be developed [e.g., strengthening international cooperation].
The first illusion is that terrorism can be greatly reduced, if not eliminated completely, provided the root causes of conflicts - political,
social and economic - are addressed. The conventional illusion is that terrorism must be justified by oppressed people seeking to
achieve their goals and consequently the argument advanced by "freedom fighters" anywhere, "give me liberty and I will give you
death," should be tolerated if not glorified. This traditional rationalization of "sacred" violence often conceals that the real purpose of
terrorist groups is to gain political power through the barrel of the gun, in violation of fundamental human rights of the noncombatant
segment of societies. For instance, Palestinians religious movements [e.g., Hamas, Islamic Jihad] and secular entities [such as Fatah's
Tanzim and Aqsa Martyr Brigades]] wish not only to resolve national grievances [such as Jewish settlements, right of return,
Jerusalem] but primarily to destroy the Jewish state. Similarly, Osama bin Laden's international network not only opposes the
presence of American military in the Arabian Peninsula and Iraq, but its stated objective is to "unite all Muslims and establish a
government that follows the rule of the Caliphs." The second myth is that strong action against terrorist infrastructure [leaders,
recruitment, funding, propaganda, training, weapons, operational command and control] will only increase terrorism. The argument
here is that law-enforcement efforts and military retaliation inevitably will fuel more brutal acts of violent revenge. Clearly, if this
perception continues to prevail, particularly in democratic societies, there is the danger it will paralyze governments and thereby
encourage further terrorist attacks. In sum, past experience provides useful lessons for a realistic future strategy. The prudent
application of force has been demonstrated to be an effective tool for short- and long-term deterrence of terrorism. For example,
Israel's targeted killing of Mohammed Sider, the Hebron commander of the Islamic Jihad, defused a "ticking bomb." The assassination
of Ismail Abu Shanab - a top Hamas leader in the Gaza Strip who was directly responsible for several suicide bombings including the
latest bus attack in Jerusalem - disrupted potential terrorist operations. Similarly, the U.S. military operation in Iraq eliminated
Saddam Hussein's regime as a state sponsor of terror. Thus, it behooves those countries victimized by terrorism to understand a
cardinal message communicated by Winston Churchill to the House of Commons on May 13, 1940: "Victory at all costs, victory in spite of terror, victory however long
For without victory, there is no survival."
and hard the road may be:
94