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States CP 1NC
The Fifty States of America and United States territories should
_________________________________________________(Insert Mandates Of Aff Plan)
( ) States can solve any alternative energy mechanism as well as the federal government –
they have experience with everything
Michael Northrop and David Sassoon, Program Director for Sustainable Development at the Rockefeller
Brothers Fund and administrator of SolveClimate.com, Yale Environment 360, 6-3-2008,
http://e360.yale.edu/content/feature.msp?id=2015
The decisive action of many states — 27 currently have or are developing comprehensive climate action
plans — is taking on added importance for another reason: Innovative state climate and energy policies
are showing skeptics in this country and in Congress that, rather than being a burden, ground-
breaking energy conservation and renewable energy programs can create economic opportunity. Many
of the more than 300 climate policies and mechanisms devised by various states will provide new
business opportunities, as all sectors of society — housing, industry, commerce, energy, agriculture,
forestry, transportation, waste management — adopt greater energy efficiencies and move to alternative
sources of energy. Against the backdrop of inaction by the Bush administration and Congress, the states
have moved farther and more rapidly than most people realize. Indeed, this September, ten mid-Atlantic
and Northeastern states will begin implementing a cornerstone of effective national or global climate
policy: A so-called “cap-and-trade” system under which emitters of greenhouse gases — in this case, power
plants — must begin steadily reducing carbon emissions and can sell a portion of their emissions allotment
once they begin implementing efficiencies. Power plants that fail to meet their emissions targets could buy
allotments from more efficient utilities.
SDI 2008 7
WHAM! States/Fism Core
( ) State incentives programs solve – they can drive the market towards widespread
alternative energy acceptance
Elizabeth Brown, Patrick Quinlan, Harvey M. Sachs, and Daniel Williams, Am. Council for an Energy-
Efficient Economy, March 2002, “Tax Credits for Energy Efficiency,”
http://aceee.org/pubs/e021full.pdf?CFID=1059758&CFTOKEN=72603414
States play a fundamental role in addressing energy use and the adoption of energy efficiency measures
at the regional and local level States can provide tax incentives that foster technology options matched to
the needs of their residents. This report describes the current status of energy efficiency and “green
buildings” tax incentives that states offer. Our goal is to assist state policymakers in designing and evaluating
their own programs by providing insights about current programs in other states. A properly designed state
tax incentive has both short-term and long-range benefits. In the short run, the incentive can effectively
increase market share of an advanced technology or practice that otherwise would be harder for the
state’s residents, businesses, and other organizations to find. By itself, the state’s action increases the
visibility of the technology or practice and validates it with the state’s credibility. Greater market share
bunches a “virtuous circle.” As market share increases, more market actors (salespeople. specifiers.
installers, etc.) become vested in the technology or practice because it can be more profitable than the
status quo and can increase customer satisfaction. This vestment induces more firms to enter the market
and the resulting competition can drive down prices and further increase market share. At some point,
market share is large enough that the technology or practice is clearly cost-effective and has broad support
from those who profit from it. By then, a state tax credit is no longer needed and building codes and other
regulatory mechanisms can be revised to make use of the technology or practice mandatory. State-funded
energy efficiency incentive programs increase consumer choices by inducing innovation in the private sector.
The programs thus benefit state energy, economic, and environmental objectives. The private sector needs
encouragement to provide products and services that address broader energy security, system reliability.
environmental, and economic goals. In particular. marker failures limit private investment in cost-effective
efficiency measures: for example. projected returns may be lower than for other, non-energy investments or
technology deployment timeframes may be too long. Tax credits can accelerate customer acceptance and
increase market share for high-efficiency products and services. Benefits accrue to the state and its
residents. the United States and its citizens, and the global climate.
SDI 2008 8
WHAM! States/Fism Core
State’s solve cap and trade – they can impose stronger requirements on emitters
Franz T. Litz, Esq., Senior Fellow at the World Resources Institute, June 2008, World Resources Institute for the
Pew Center, “TOWARD A CONSTRUCTIVE DIALOGUE ON FEDERAL AND STATE ROLES IN U.S.
CLIMATE CHANGE POLICY”, rks, http://www.pewclimate.org/docUploads/StateFedRoles.pdf
Although a state cannot directly impede the workings of the ARP cap-and-trade program, the Clean Air Act
does allow a state to impose more stringent requirements on the plants subject to the ARP program. A
state may, in fact, implement a statewide cap-and-trade program that requires reductions more
stringent than the federal ARP from the same sources. The State of New York chose to implement an
aggressive statewide cap-and-trade program to reduce sulfur dioxide emissions from power plants in
the state—from the very same plants subject to the federal program.40
States solve cap and trade – they will be able to find the best solvency mechanism and will
be specific to the state itself
Franz T. Litz, Esq., Senior Fellow at the World Resources Institute, June 2008, World Resources Institute for the
Pew Center, “TOWARD A CONSTRUCTIVE DIALOGUE ON FEDERAL AND STATE ROLES IN U.S.
CLIMATE CHANGE POLICY”, rks, http://www.pewclimate.org/docUploads/StateFedRoles.pdf
The Heavy State Role option presents some advantages. The federal action would deliver two key
benefits: there would be clear national reduction targets and all states would have to contribute their share to
the effort. Beyond these benefits, all 50 states would be allowed to experiment with individual state
approaches to reduce emissions, much as many states have done to date. This would tend to be positive
for those policy mechanisms that are best tailored to specific state circumstances. The approach would
also engender a potentially productive competition among states to develop policies that best achieve
the results while meeting other state goals.
SDI 2008 10
WHAM! States/Fism Core
( ) States are best at implementing alternative energy – they’ve done hundreds of projects
and spillover to the federal government in the long run
Rusty Haynes, Policy Analyst @ NC State, 2005, “Systematic Support,” DSIRE,
http://www.dsireusa.org/documents/PolicyPublications/Haynes_KIER_Keynote.pdf
In the absence of strong, continuous federal support for renewable energy, dozens of U.S. states have
stepped in to fill the void. Indeed, states collectively have implemented hundreds of policies to promote
the adoption of renewable energy, for reasons ranging from energy diversification, to economic
development, to air-quality improvement. It is important to recognize that some of these policies could
become part of the “long-standing tradition in American governance whereby states serve as
laboratories for subsequent federal policy.”10
( ) States can easily raise money for renewables using a system benefit charge
Steven Ferrey, Law Prof @ Suffolk, March 2006, Electricity Journal, 19.2, “Renewable Orphans,” p.
sciencedirect
The system benefit charge is a tax or surcharge mechanism for collecting funds from electric
consumers which can then support a range of activities.2 In order to support demand-side management
or renewable resources, funds are collected through a nonbypassable system benfits charge to users of
electric distribution services. The money raised from the system benefit charge is then used to ‘‘buy
down’’ the cost of power produced from sustainable technologies, so that they can compete with more
conventional technologies. The overall design of the system is to allow electric utilities to recover certain
costs fromall retailelectricitycustomers. More than a dozen states have established renewable energy
subsidy programs funded by system benefit charges that over this decade should raise approximately
$3.4 billion.3 Between 1998 and 2012, approximately $3.5 billion will be collected by the original 14 states
with renewable energy funds.4 More than half the amount collected – at least $135 million per year – comes
from just California.5 The funding levels range from $0.07/MWh in Wisconsin up to almost $0.6/ MWh in
Massachusetts.6 The funds are disbursed as either investments, grants, other subsidies, or R&D grants
by the funding agency. Most only provide assistance to new projects, and not existing renewable projects.
( ) Public benefit funds ensure the states have a mechanism to fund alternative energy
incentives
Steven Nadel and Marty Kushler, Am. Council for Energy-Efficient Economy, October 2000, Electricity
Journal, “Public Benefit Funds,” p. sciencedirect
The principal public policy lesson learned thus far is that it is indeed possible to establish a statewide or
regional public benefit energy efficiency funding mechanism and achieve practical success in
administering and delivering valued services. Another lesson is that there does not appear to be any single
“correct approach” for the design of such a system. Some states are hav- ing success with utility-administered
programs (e.g., Massachusetts and California), while others are succeeding with programs administered by
state agencies (e.g., New York) or an independent entity (e.g., the Northwest). Likewise, most states are
coordinating at least some programs regionally, while most states are also implementing some programs on
their own. This translates into what might be the primary strategic and tactical lesson: Within an overall
policy of public benefit funding support for energy efficiency, each state should take advantage of its
own strengths and assets in designing the specific details of its energy efficiency programs.
SDI 2008 15
WHAM! States/Fism Core
( ) States don’t race to the bottom – their argument is theoretically and empirically
bankrupt. Firms base siting decisions on other factors, federal standards don’t stop
competition, and states compete to improve the environment
Jonathan H. Adler, Assoc. Law Prof @ Case Western, Jan. 2005, “Judicial Federalism,” 90 Iowa L. Rev. 377, ln
A common concern voiced in environmental policy debates is that lessening federal authority will lead to
environmentally harmful interjurisdictional competition. Specifically, the lack of federal regulation will set off a "race to the
bottom" in which state jurisdictions compete for corporate investment and economic development by reducing [*467] environmental safeguards. 598 The theory is based upon
the intuitive notion, supported by some empirical evidence, 599 that firms are more likely to invest in states with less costly regulatory regimes. This concern is the "central
on
underpinning" of federal environmental regulation 600 and has been relied upon by courts to uphold federal environmental statutes against constitutional challenges. 601 Yet
both theoretical and empirical grounds, concerns about an environmental race to the bottom seem
overstated. Professor Revesz has demonstrated that the framework underlying the race to the bottom
theory has several analytical failings. 602 Firms base siting and relocation decisions on a wide range of
criteria, of which environmental regulation is only one, and there is ample evidence that other factors
typically play a greater role in such decisions. 603 Tax rates, infrastructure, availability, cost, skill of local labor, and other regulatory policies are also important
considerations for businesses. If the race to the bottom operates in the environmental sphere, there is every reason to expect it to operate to the same extent in these other contexts,
suggesting that federal regulation would be necessary across the board. 604 In this way, the race to the bottom theory - if taken seriously - proves too much. In addition, the adoption
federal environmental standards to prevent a race to the bottom in environmental policy would not
of minimum
eliminate the competitive pressures. Rather, it would shift them to other contexts, and the hypothesized welfare [*468]
losses would remain. 605 Professor Revesz also points out that the same dynamic that could theoretically produce systematic environmental underregulation could also produce
overregulation. 606 If states are more aggressive at competing for industry through tax policy than through environmental policy, the likely result would be suboptimal tax rates but
superoptimal levels of regulation. 607 The theory persists, despite its flaws, because it is reasonable to assume that jurisdictions will seek to create a comparatively more attractive
investment climate in order to better compete economically. Insofar as environmental regulations impose significant economic burdens on existing and prospective economic actors in
a given area, it is also reasonable to expect jurisdictions to act so as to lessen such burdens. 608 Recent empirical work suggests that this is in fact the case as government officials
acknowledge efforts to reduce the economic pinch of environmental regulation for economic purposes. 609 Yet for this to prove the race to the bottom hypothesis, it is necessary to
further assume that reducing the economic cost of environmental regulation necessarily reduces the level of environmental protection. While such a conclusion may be justified in
certain contexts, it cannot be assumed across the board. As not all environmental protection measures produce equivalent levels of environmental protection at equivalent costs, it
should be possible for many jurisdictions to reduce the economic cost associated with environmental measures without sacrificing environmental quality. 610 In addition, it is
states compete for citizens by seeking to improve their environmental performance.
important to recognize that many
Because many people may be more likely to move to a state with high levels of environmental quality, this
[*469] creates pressure for states to adopt more protective environmental policies. 611 In practice, the
race to the bottom has not been observed in environmental policy. 612 As already noted, state and local governments often
regulated well before the federal government became involved. While this fact alone does not disprove the race to the bottom thesis - such state regulations could still have been
suboptimal when compared to the federal alternative or some theoretical ideal - they demonstrate that competitive pressures do not preclude effective state regulation. More
significantly, where the race to the bottom thesis has been directly tested in the context of wetlands, the pattern of state regulation has been precisely the opposite of what the theory
would predict.
SDI 2008 16
WHAM! States/Fism Core
AT: Perm
( ) The perm would force preemption – it’s impossible for the plan and CP to exist
Robert K. Huffman, lawyer, and Jonathan M. Weisgall, VP at MidAmerican Holdings,Winter 2008, “Climate
Change and the States,” Sustainable Development Journal,
http://www.wcl.american.edu/org/sustainabledevelopment/2008/winter08.pdf?rd=1
The best case for federal preemption would arise if the federal government instituted a similar cap-and-
trade system or other form of comprehensive carbon emissions regulation. Any program that created a
nationwide price for carbon would likely be interpreted as directly conflicting with state programs; in
the alternative, courts would probably hold that federal efforts occupy the field of GHG regulation. But
lacking such a program, as is currently the case, it is difficult to see any way in which a state-organized cap-
and-trade program could be preempted under the Supremacy Clause. Some congressional leaders are
advocating for express preemption in any future comprehensive cap-and-trade bill. The Dingell-Boucher
white paper,68 which discusses the role of federal, state, and local governments in efforts to reduce GHG
emissions, makes the case for express preemption. “[O]nce a national, economy-wide cap-and-trade
program is adopted, State or regional cap-and-trade programs may interfere with the efficient
functioning of the Federal cap-and-trade program[.]”69 As a result, “Chairman Dingell has made it very
clear that he believes that motor vehicle greenhouse gas standards should be set by the Federal Government,
not by State governments[.]”70 In addition, the analysis finds that compliance costs and overall system
costs (including regulatory overhead) are likely to be higher in any duplicative system of federal and
state/regional regulation.71 While the current version of the Lieberman-Warner bill actually encourages and
provides incentives for states to take actions above and beyond the federal cap-and-trade program,72 there is
a possibility that an express preemption clause could be part of any final bill.
SDI 2008 18
WHAM! States/Fism Core
California’s Economy is horrible; there’s a high deficit, high unemployment, and a horrid
housing crisis.
Evan Halper, Los Angeles Times Staff Writer, 6-30-2008, Los Angeles Times, “Brokaw needles Schwarzenegger
on spending, economy,” rks, http://www.latimes.com/news/local/politics/cal/la-me-arnold30-
2008jun30,0,595673.story
Gov. Arnold Schwarzenegger, usually a darling of the national media, found himself being told by the host
of NBC's "Meet the Press" that if he ran a private company the way he has run the state, he might have
been fired by now. Tom Brokaw, who will be moderating the program through the presidential election, put
a series of confrontational questions to the governor in an interview taped in California and aired this
morning. When you ran for governor in 2003, you ran as a fiscal conservative who would change the system,
who would bring business-like techniques," Brokaw said. "Now, you are facing a $15-billion deficit here
in California. Unemployment is running at about 6.8%; you've got the worst housing crisis since the
Great Depression. If you were the CEO of a public company, the board would probably say, 'It is time
to go.' "
SDI 2008 19
WHAM! States/Fism Core
Lopez CP 1NC
The United States Supreme Court should issue a narrow ruling that federal authority over
_____________________(Insert the area of the plan) exceeds the power of the federal
government under the 10th Amendment, and devolve this authority to the states. The Fifty
States of America and United States territories should
_________________________________________________(Insert Mandates Of Aff Plan).
( ) The Court can make this ruling and devolve power to the states –it won’t be rolled
back
Mark A. Miller, Lawyer @ Baker Botts, 1998, Cleveland State L. Rev., ln
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 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
SDI 2008 20
WHAM! States/Fism Core
Ext – Federalism NB
( ) The Lopez precedent is critical to reinvigorate federalism
Steven G. Calabresi, Associate Professor, Northwestern University School of Law. “A Government of Limited
and Enumerated Powers,” Michigan Law Review December, 1995
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, 3 the Court's 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.
( ) The court can issue narrow rulings without overruling past precedent
Kenneth J. Vandevelde, Thinking Like a Lawyer, April 1, 1996, p.105
Third, the
court may create an exception. This is an explicit, but only partial, repudiation of the prior case.
The prior case remains good law, but it no longer controls all of the situations it once did. The last example
could be used to illustrate this technique as well. Assume that, in the first case, there had not been adequate assurances that the store’s
claim was well founded. In that situation, the second case, rather than overruling the prior case sub silentio, might simply create an
exception—holding that, although prior notice is generally required, subsequent notice is sufficient if the court has adequate assurances
that the store’s claim to a right of seizure is well founded. Obviously, lawyers may differ at times over whether the second case
represents an exception to the first case or an overruling of it sub silentio. To the extent that the two cases are truly different, the second
case may well be carving out an exception to the general rule set forth in the first case. To the extent that the two cases seem
indistinguishable, however, then the conclusion is almost inescapable that the first case has been overruled sub silentio. As has been
seen, lawyers may differ over whether two cases are distinguishable, and thus they may differ over whether the second case created an
exception to, or overruled sub silentio, the first case. Any exception changes the law with respect to those situations
embraced within the exception. Moreover, by defining the factual predicate of the exception broadly, the court can bring large numbers
of cases within the exception. Eventually, the exception may become more widely applicable than the so-called
general rule, with the result that the exception is said to swallow the rule.” At the time it was created, the exception
seemed a minor change in the law. but over time it proved to be a virtually complete repudiation of the earlier
rule. ‘
SDI 2008 24
WHAM! States/Fism Core
( ) ESA won’t be overturned – Court will find it constitutional under both the commerce
clause and the treaty power
Jacalyn R. Fleming, JD Albany, 2001, “The scope of federal authority,” 65 Alb. L. Rev. 497, p ln
Congress's authority to enact the ESA under the Commerce Clause has been questioned, particularly in the
context of wholly intrastate species, because it is unclear how the taking of an endangered species could have
a substantial effect on interstate commerce. The Supreme Court, however, has held some activities, such as
the growing of homegrown wheat, to be within the realm of interstate commerce due to the aggregate effects
of the activity. 292 The question remains whether the Supreme Court will require that the regulated activity
itself be commercial, but even if so, the economic and commercial nature of protecting endangered
species and maintaining biodiversity should not be difficult to defend. All citizens depend on these species
for food, medicine, and every other economic measure independent of minerals. Biodiversity is an untapped
economic potential. As a renowned biologist has explained, "the more the living world is explored and
utilized, the greater will be the efficiency and reliability of the particular species chosen for economic use."
293 Someday the nation may come to appreciate fully the harm resulting from the loss of biodiversity, and
seek to prevent further loss. The ESA may be upheld as constitutional, even without Commerce Clause
authority. As an issue of critical national and economic concern, endangered species protections fall well
within the treaty power of Congress, and the ESA is a necessary and proper statute adopted domestically to
implement provisions of treaties with other nations. Consequently, the ESA is a valid act of Congress under
the treaty power and thus may preempt state and local laws to the extent local laws conflict with the ESA
pursuant to the Supremacy Clause.
SDI 2008 26
WHAM! States/Fism Core
( ) The federal government will preempt the CP – negating the effect of any state action
Jonathan H. Adler, Law Prof @ Case Western, 2007, 31 Harv. Envt’l. L. Rev. 67, “When is Two A Crowd,” ln
Preemption operates to prevent state regulatory activity. The net effect of federal preemption is often
for there to be less regulation than there would have been otherwise. n70 Federal laws precluding state regulation
of automobile or oil tanker design mean that manufacturers need only comply with one regulatory standard. Federal regulations in such
cases serve as a regulatory "floor" and a regulatory "ceiling" at the same time. In other cases, preemption may serve to ensure that there
is no regulation governing a particular subject matter, where federal law precludes states from adopting particular rules but the federal
government does not adopt rules of its own. n71 Where implied preemption is found, this will typically preclude any state or local
regulation whatsoever. n72 Where Congress explicitly preempts state regulation, however, the scope of the preemption usually will be
limited to the extent provided for in the statutory text. n73 Given that preemption operates to reduce aggregate regulatory burdens, it
should be no surprise that federal preemption of state environmental regulatory standards is often sought by
business interests seeking to establish regulatory uniformity, a "ceiling" on regulatory stringency, or
both. n74 [*85] Federal preemption of state automotive emission regulations, for example, resulted
from lobbying by U.S. automakers fearing the potential for different emissions standards to be adopted
in different states--and believing that federal standards would be less stringent than those developed in
the states. n75 This is not to say that there are not sometimes economic justifications for preempting variable
state standards with a single federal standard, only to note that this pressure for federalization often comes
from industry rather than from environmentalist interests.
( ) State programs will be struck down by the court – they’re used to discriminate against
interstate commerce
Steven Ferrey, Law Prof @ Suffolk, March 2006, Electricity Journal, 19.2, “Renewable Orphans,” p.
sciencedirect
There are serious Constitutional trip-wires lurking before some of innovative state initiatives. While the
many varied state programs create wonderful laboratories for experimentation, only by fostering renewable
energy without Constitutional violations can the energy future be founded on a sustainable base. Some
of the states through these initiatives treat interstate power sales as a piggy bank to subsidize in-state
enterprises, while beggaring their neighbors. The U.S. Supreme Court consistently strikes down as
unconstitutional similar programs involving interstate goods taxed by states so as to provide local
subsidy. This article parses which of the key state renewable energy initiatives commit Constitutional
violations and are not legally sustainable, and how to remedy this so that these renewable programs aren’t
orphaned by legal challenge.
SDI 2008 28
WHAM! States/Fism Core
( ) The counterplan would raise taxes to cover budget deficits in California – jacking their
economy
States News Service, 7-10-2008, “Maze Reacts,” ln
Assemblyman Bill Maze (R-Visalia) reacts to the Democrats proposed billions in tax increases on
businesses and high earners to help bridge the California's budget shortfall. "California already has
the fourth-highest tax burden in the nation," said Assemblyman Maze. "We pay enough taxes and with
our economy struggling this is the wrong time to raise taxes, which will only hurt our families and kill
jobs in California. I cannot believe that during these tough economic times the Democrats want to
solve the budget shortfall on the backs of businesses and California's citizens."
( ) California can’t afford to spend more money – they’d have to raise taxes
Dan Walters, Fresno Bee, 7-6-2008, “State faces budget crisis,” ln
The budget, meanwhile, has become a markedly more complex document, largely because Proposition 13,
passed by voters in 1978 to slash local property taxes, thrust much more responsibility for financing schools
and local services onto the state. And Proposition 98, a school finance measure enacted in 1988, made the
process even more complex and rigid. Its effects were just beginning to be felt when Wilson was governor.
Finally, the fiscal problems that troubled those other governors primarily resulted from economic recessions,
but today's crisis primarily stems from voters and politicians spending more money than the revenue
system can produce, even in a good economy. It is what those in the Capitol call and what California
Forward identifies as a "structural deficit." This is, in brief, a unique situation and what any governor did in
the past means absolutely nothing today. Until California resolves its underlying crisis of governance, the
budget crisis will continue to bedevil us.
( ) Sudden court extension of Lopez triggers a social backlash that undermines federalism
Steven G. Calabresi, Associate Professor, Northwestern University School of Law. “A Government of Limited
and Enumerated Powers,” Michigan Law Review December, 1995
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.
ESA DA 2AC
A. Striking down congressional power to regulate energy would require overturning all of
Congress’s powers under the Commerce Clause
Peter Moyers, Princeton, Spring 1998, “Drug Legalization,” Princeton U.L.J., v. 11, iss. 2,
www.princeton.edu/~lawjourn/Spring 98/
Wickard v Filburn (1942) affirmed the decision in NLRB and granted additional power. The respondent in the case was found
guilty of violating a law prohibiting the production of more than 11.1 acres of wheat. Even though he did not sell his extra wheat, the
Court found that the respondent along with others could possibly substantially affect the wheat market were they all to violate the quota.
Although Filburn’s acts did not themselves substantially affect interstate commerce, many "Filburns" could do so. The risk of substantial
effect was enough for congressional regulation. Therefore, Congress’ interest in stabilizing prices on the wheat market required farmers
not to exceed the quota, even if the surplus was not used for commercial purposes. This decision granted Congress the power
to regulate non-commercial, local activity if it presents the risk of "substantial economic effect on interstate
commerce." These cases bring us to the most recent decision of U.S. v Lopez (1995). In the majority opinion, Chief Justice Rehnquist
notes that three categories of activity may be regulated by Congress under the power of the Commerce Clause. First, the channels of
interstate commerce are open to congressional regulation. Second, Congress may regulate the persons or things, the instrumentalities, of
interstate commerce. Third, an activity may be regulated if it has a substantial relation to interstate commerce, or more specifically,
substantially affect interstate commerce. In Lopez, the government argued under the third category, attempting to show that the presence
of firearms on school grounds has substantial relation to interstate commerce. The Court found the argument to lack force, asserting that
the definition of substantial relation or effect the government was putting forth would transform Commerce Clause power into "a general
police power of the sort retained by the States." This decision does not categorically reject the federalization of police powers but rather
affirms the doctrine of substantial relation or effect. The Court was unwilling to build "inference upon inference" to see a substantial
economic effect; the presence of firearms on school grounds was found to be too far removed from interstate commerce to come under
the third category. The Court would be faced with a similar case in the congressional policy of outlawing the use,
sale and possession of drugs. In order for the congressional policy to prevail, it must show that the possession
and use of drugs, sanctioned by the state policy, substantially affect interstate commerce. However, in order
to be consistent with Lopez and Wickard, whose doctrine of substantial risk of effect has never been
overturned, and in the absence of empirical evidence, the Court must recognize that even the risk of an
activity substantially affecting interstate commerce is sufficient for legitimate congressional regulation.
I find the activities sanctioned by the state policy to be of sufficient risk of substantially affecting interstate commerce to find the
congressional policy a constitutional regulation denying the practice of the activities sanctioned by the initiative.
***Continues***
The state policy demonstrates the risks involved in allowing states, in the case of drug policy, to pursue different policies. As I argue
above, the legalization of drugs within one state almost certainly will substantially burden the effective pursuit of drug use and
possession prevention in other states. A neighboring state would have to create nearly impervious borders in order to remain faithful to
its anti-drug policy; one wonders if the free flow of people to and from the state, let alone commerce, would remain a possibility. By
upholding the constitutionality of the congressional policy, the Court would recognize and condemn the substantial burden a state
pursuing an independent drug policy places on neighboring states. Admittedly, to the casual observer, the Court’s decision would appear
to be a significant usurpation of states’ police powers and a step toward a unitary system. I agree that the Court ought to be wary of
assaults on federalism. The decision should not be looked upon by future Courts as a precedent for allowing the nationalization of police
powers, but rather as an affirmation of Congress’ power to regulate any activities, including crimes, that have a substantial effect on
interstate commerce. In this case, the state policy creates a risk of substantially affecting interstate commerce. To deny Congress’
power in this case would be to overturn nearly all Commerce Clause precedents as well as Marigold.
And to overturn Marigold would be to all but eliminate any non-enumerated means Congress requires to
pursue its powers and duties. Although to find for the federal government might blur the line of federalism,
to find for the state would strip Congress of its power, granted in Marigold, to act beyond its enumerated
means to pursue its enumerated duties. The latter I do not think our system can tolerate.
SDI 2008 38
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ESA DA 2AC
B. That would require striking down the ESA – it’s based on the commerce clause
Mollie Lee, 11-1-2006, Yale L. J., “Environmental economics,” http://goliath.ecnext.com/coms2/gi_0199-
6199333/Environmental-economics-a-market-failure.html
When Congress enacted the ESA, it did so with very little debate and with overwhelming public support.
(11) The environmental movement was at its peak, (12) and a nation of newfound environmentalists was
eager to respond to well-publicized stories about threats to the bald eagle, blue whale, polar bear, and other
"charismatic fauna." (13) Endangered species already received some protection from statutes enacted in the
prior decade, (14) but these statutes were limited in scope, and it soon became apparent that they were
inadequate to prevent further extinctions. (15) Thus, in 1973 Congress adopted the ESA as a comprehensive
approach to protecting threatened and endangered species throughout the nation. Congress relied chiefly on
its Commerce Clause powers in passing the statute, (16) but the legislative history contains no explicit
discussion of this constitutional authority. However, congressional findings and testimony suggest that
Congress understood species extinctions as a problem with both commercial causes (17) and
commercial consequences. (18) The causal link between commercial activity and species extinction is
particularly prominent in the legislative findings for the statute. There, Congress noted that "various
species offish, wildlife, and plants in the United States have been rendered extinct as a consequence of
economic growth and development untempered by adequate concern and conservation." (19) While this
finding suggests that Congress understood economic activity to be a primary cause of species extinction,
Congress did not choose to protect endangered species by directly regulating economic activity. Instead, the
ESA prohibited any activity that would jeopardize the continued survival of threatened and endangered
species.
Economy DA 2AC
A. The CP would be send a massive signal of unpredictability and confusion from the court
Matthew Ford, Law Student at St John's University School of Law in New York. 9/15/05. “John Roberts, Stare
Decisis, and the Return of Lochner: An Impetus to Jump-Start the Labor Movement.” Mr. Zine Magazine, A Project
of the Monthly Review. http://mrzine.monthlyreview.org/ford180905.html
Our common law system is based largely on the idea of "stare decisis," the idea that the rulings of judges are generally binding. Such a
system is designed to create continuity so as to send a signal to society about what sort of behavior society will or will not
tolerate, to avoid confusion certain to arise if laws are constantly changing, and to diminish the
likelihood of agitating society as a whole or creating a backlash by overturning laws that are widely valued. However, as
Judge Roberts put it, "[S]tare decisis is not an inexorable command" ("Transcript: Day Two of the Roberts Confirmation Hearings," 13 September
2004). The Supreme Court can overturn precedent when it sees fit, or, in the words of Roberts, "You have to consider whether [precedent has]
created settled expectations that should not be disrupted in the interest of regularity in the legal system" ("Transcript: Day Two of the Roberts
Confirmation Hearings," 13 September 2004). If Roberts sticks to his word, large, well-organized, militant groups such as the Women's Rights
Movement should find comfort in the fact that Roberts has implicitly acknowledged that the overturning of such a key
precedent as Roe v. Wade would likely lead to large-scale upheaval by the well-organized feminist movement that would
shake society so forcefully that to even fathom overturning the ruling is to start trouble.
Federalism DA 1NC
A. Unique internal link – federalism is on the brink, but state rights are winning because
of leadership over energy
Raymond C, Scheppach, Exec. Dir. Of Nat. Gov. Assoc., 7-9-2008, Stateline.org, “Will the 2008 election
improve state-federal relations?”, rks, http://www.stateline.org/live/details/story?contentId=323921
While it is always risky to look into the crystal ball, I sense that we are at a major turning point in the role of the states in our
intergovernmental system. Essentially, the long-term trend of increased centralization of authority in
Washington, D.C., may slow dramatically or even be reversed. Two reasons will drive this change. First,
the next administration and Congress will have to focus more on international issues, ranging from the wars in Iraq and Afghanistan, to terrorism, to Iran and North Korea and to
the next
global economic issues such as the price of oil and other commodities and the value of the dollar?all in an increasingly fragile international financial system. In short,
administration and Congress will face huge international challenges that could dominate the agenda.
Second, on many of the domestic issues such as health care, energy and climate change, states and
governors have been providing national leadership over the last decade.
B. Current federal environmental programs leave a role for the states – the plan reverses
this, destroying federalism
Robert B. McKinstry, Philadelphia lawyer, John C. Dernbach, Law Prof @ Widener, and Thomas D.
Peterson, Exec. Dir. Center for Climate Strategies, 11-19-2007, “Federal Climate Change Legislation,” Widener
Law, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1031552#PaperDownload
Most major federal environmental laws preserve a significant role for state and sometimes local
government. They create overarching federal goals and minimum standards and provide for implementation by states, often leaving the design of implementation
mechanisms to the states. Preservation of a significant state role in federal programs reflects political reality in the
United States. Constitutional limitations on federal power have been reinforced by long political
tradition of local decision-making epitomized by the New England town meeting and concern that centralizing power would undermine political freedoms.
There are also concrete advantages to giving state and local government a significant role in
implementation of environmental policies. These are evident from consideration of the progress of climate change initiatives in the United States to
date. As noted by Justice Brandeis in New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting), states have greater flexibility that
allows them to innovate with less severe consequences and provide models for future federal
legislation. State and local government programs can allow bottom-up decision-making with greater stakeholder involvement. This allows the development of more precisely
focused targets and strategies that are tailored to local conditions and are more likely to succeed.
Federalism Brink
( ) Federalism is in a state of flux – Roberts and Alito are on the side of states rights, but
only future cases will determine whether they succeed
Denise C. Morgan, Law Prof @ NYU, 2006, “A Tale Of (At Least) Two Federalisms,” 50 N.Y.L. Sch. L. Rev.
615, p ln
But the sexiness of the new federalism has come at the price of confusion and instability. Everything about
the area of law now seems to be in flux. The most obvious example is that the composition of the Supreme
Court is changing for the first time in eleven years - gone are both Chief Justice William Rehnquist, who
played a strong leadership role in the Court's federalism cases, and Justice Sandra Day O'Connor, another
consistent member of the States' Rights Five. 2 We can only speculate about the positions their
replacements will take in future federalism cases and how the interplay of new personalities and judicial
styles on the Court will affect the work of the Justices. Chief Justice John Roberts's dissenting opinion in
Rancho Viejo, LLC v. Norton, written when he was a circuit court judge, suggests that he is willing to read
Supreme Court precedent narrowing Congress's Commerce Clause powers and expanding [*616]
facial challenges to federal statutes broadly. 3 Then-Judge Roberts, however, also allowed that he would
be open to find "alternative grounds for sustaining application of [Commerce Clause statutes] that [would] be
more consistent with Supreme Court precedent." 4 Harriet Miers, President George W. Bush's next pick to fill
a Supreme Court seat, had no record that would betray her leanings in federalism cases. 5 Judge Samuel
Alito, however, Bush's next selection for the Court, had expressed hostility towards many of the
assertions of Congressional power that we have grown accustomed to since the 1930s in his position on
the U.S. Court of Appeals for the Third Circuit. 6 Since Justice Alito is now a member of the Supreme Court,
only time will tell if a new Court majority will coalesce to police strictly the boundaries of federalism.
( ) Current federal energy policies still let the states run the show – giving them a
significant boost
Robert B. McKinstry, Jr., John C. Dernbach, and Thomas D. Peterson, Winter 2008, Natural Resources &
Environment, Volume 22, Number 3, “Federal Climate Change Legislation as If the States Matter,” rks,
http://www.climatestrategies.us/ewebeditpro/items/O25F17686.pdf
States are at the forefront of climate change efforts in the United States. These efforts involve more and
more states and are becoming increasingly ambitious and regional in scope. Most observers, even at the
state level, see state and regional efforts as a next-best strategy in the absence of serious national leadership.
The growing prospect of comprehensive national climate change legislation, however, raises many important
questions about the role of state efforts in a national climate change program. This article identifies the key
state/federal issues that should be addressed in any comprehensive national climate change legislation and
provides recommendations for resolving these issues. We cannot hope to successfully address climate change
without fully engaging states and their local governments as partners in the national effort. In the early
1970s, Congress passed national air-quality, water-quality, surface mining, solid and hazardous waste, and
other legislation based on models created by prior state action. This federal legislation created floors and
requirements for states that had failed to do the job but left a significant role for states both in
implementing the federal model and continuing to act. As a result, state environmental protection and
natural resource agencies have become larger, better funded, more professionally staffed, and more
effective than they were in 1970. For climate change, by contrast, the federal government has delayed
taking action far beyond the time in which it acted previously. State and regional actions greatly exceed
in both scope and number those seen on other environmental issues prior to major federal legislation.
The federal government’s failure to take significant action has not been due to any desire to allow states to
pursue independent action without federal interference. But the states have responded to climate change
because they believe their shorelines, water resources, key industries, and people are at risk. Much of what
the states have done, moreover, falls squarely within their traditional police power roles, including public
health and safety protection and regulation of land use. Massachusetts and other states challenged the U.S.
Environmental Protection Agency’s (EPA’s) refusal to exercise jurisdiction over greenhouse gas (GHG)
emissions under the Clean Air Act (CAA), 42 U.S.C. §§ 7401-7671q, precisely because they saw themselves
and their citizens as threatened by rising sea levels from global warming.
SDI 2008 50
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( ) Federalism is modeled
Steven G. Calabresi, Associate Professor, Northwestern University School of Law Arkansas Law Review, 1995
In addition to judicial review and presidential government, the United States has also had an enormous
influence on global notions of federalism and of the value of a written constitution. Thus, it is not an
overstatement to say that the United States is perhaps the world's leading exporter of concepts of public
law.
( ) New policies that empower the states to protect rights from the incursions of the central
government will lead to a worldwide federalism revolution
Robert B. & Helen S. Meyner, Gov Prof and Dir. Meyner Center @ Lafayette, 1995, Camden Rutgers L.J.
Given that it is increasingly necessary to think globally while acting locally, it is pertinent to suggest that
this American experience with the new judicial federalism, however muddled, may have useful
implications for an emerging federalist revolution worldwide. n132 This potential utility lies primarily
in the concept of independent and adequate state constitutional powers that enable constituent
governments to protect rights not available from a national government, thereby providing multiple and
potentially competing forums for citizen access. The new judicial federalism shows that rights protection
cannot be entrusted to a monopoly guardian, whether it be the national government or each constituent government acting monopolistically and
autonomously within its jurisdiction. If the American historical experience has been one of overcoming state tyrannies against individual rights, the historical experience of much of
The new judicial federalism, moreover, is
the rest of the world has been one of overcoming central government tyrannies against individual rights.
situated at a critical intersection between individual rights and local autonomy, a matter of increasing
importance and conflict in the post-Cold War era.
SDI 2008 55
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B. Nuclear war.
Zalmay Khalilzad, RAND, The Washington Quarterly, Spring 1995
Under the third option, the United States would seek to retain global leadership and to preclude the rise of a
global rival or a return to multipolarity for the indefinite future. On balance, this is the best long-term guiding
principle and vision. Such a vision is desirable not as an end in itself, but because a world in which the
United States exercises leadership would have tremendous advantages. First, the global environment would
be more open and more receptive to American values -- democracy, free markets, and the rule of law. Second,
such a world would have a better chance of dealing cooperatively with the world's major problems, such as
nuclear proliferation, threats of regional hegemony by renegade states, and low-level conflicts. Finally, U.S.
leadership would help preclude the rise of another hostile global rival, enabling the United States and the
world to avoid another global cold or hot war and all the attendant dangers, including a global nuclear
exchange. U.S. leadership would therefore be more conducive to global stability than a bipolar or a
multipolar balance of power system.
SDI 2008 56
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No Federalism – General
( ) Despite high state action and activity, states are still in need of more power.
John Dinan, Executive director of the National Governors Association, 6-22-2008, Publius, “The state of
American Federalism 2007-2008: resurgent state influence in the national policy process and continued state policy
innovation,” rks, lexis
States have long been the primary policy innovators in the US federal system, and as Dale Krane has
noted, state policy activism "appears to be increasing at an accelerating pace" during the Bush
presidency (Krane 2007, 462). State officials continued to take the lead on anumber of issues in 2007-
2008, at times acting when federal policy was not forthcoming, at times expressing disagreement with
federal policy, and at times proceeding independently of federal policy-makers (Greenblatt 2007b;
Tubbesing 2008). In fact, as John Kincaid and Richard Cole suggest in their article for this issue, public
awareness andsupport for continued state policy innovation may well account for the post-2005 uptick in
public support for state governments recorded in their annual opinion surveys. As Kincaid and Cole report,
their 2007 survey saw a continued drop in the percentage of individuals responding that state governments
"gave them the least for their money" and a notable increase in the percentage of survey respondents
saying that state governments "need more power."
( ) The Supreme Court is limiting state power, even under federalist justices.
John Dinan, Executive director of the National Governors Association, 6-22-2008, Publius, “The state of
American Federalism 2007-2008: resurgent state influence in the national policy process and continued state policy
innovation,” rks, Lexis Nexis Academic.
The Supreme Court had various opportunities in 2007-2008 to pass judgment on state and local acts in
the face of claims that they ran afoul of the dormant commerce clause, preemption doctrine, and due process
and equal protection clauses of the Fourteenth Amendment. In a number of cases, the Court sustained the
state and local acts. However, on some notable occasions, including in four preemption cases and a case
concerning school integration plans, the Court limited state and local discretion, and in the process
provoked sharp complaints from dissenters--most notably Justices Stevens and Ginsburg--about the
majority's lack of respect for state sovereignty and authority. In fact, in a development that might seem
surprising in light of his votes in constitutional federalism cases but is predictable in light of his votes in
recent preemption cases (Staab 2006, 243), Justice Stevens in 2007-2008 was the most willing of any
Justice to offer extended defenses of state sovereignty and authority in his opinions.
( ) Non-Unique: The Supreme Court ruled against the states in many key cases
John Dinan, Executive director of the National Governors Association, 6-22-2008, Publius, “The state of
American Federalism 2007-2008: resurgent state influence in the national policy process and continued state policy
innovation,” rks, Lexis Nexis Academic.
The Court also ruled against state authority in three key preemption cases decided in early 2008, and
by significant margins in each instance. In Riegel v. Medtronic, No. 06-179 (2008), in a ruling from
which Justice Ginsburg alone dissented, on the grounds that it amounted to a "constriction of state
authority" and "a radical curtailment of state common-law suits seeking compensation for injuries caused by
defectively designed or labeled medical devices," the Court held that the Medical Device Amendments of
1976 (MDA) preempted state common-law challenges to medical devices that had been given
premarket approval by the Food and Drug Administration. Then, in Preston v. Ferrer, No. 06-1463
(2008), with Justice Thomas issuing a lone dissent, the Court ruled that the Federal Arbitration Act
preempted California's Talent Agencies Act to the extent that it called for legal questions arising from a
contract dispute to be initially referred to an administrative agency rather than an arbitrator, as specified in
the federal law. Finally, in Rowe v. New Hampshire Motor Transport Assn., No. 06-457 (2008), with
Justice Ginsburg concurring and Justice Scalia concurring in part, the Court held that the Federal Aviation
Administration Authorization Act of 1994 preempted a Maine law imposing various requirements on the
transportation of tobacco products with an eye to reducing youth smoking. The Court reasoned: "to
interpret the federal law to permit these, and similar, state requirements could easily lead to a
patchwork of state service-determining laws, rules, and regulations."
SDI 2008 71
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No Federalism – General
( ) Congress is nearly tyrannical in its use of the commerce clause – there’s no check on
what they can do
Sarah J. Farley, JD Seton Hall, Spring 2006, “Gonzalez v. Raich,” 2 Seton Hall Cir. Rev. 621, p ln
At first it seems that the ability to prosecute such child sex offenders is a natural offshoot of the ability to
prosecute child pornographers because both involve the serious issue of child exploitation, but in reality there
is a huge leap from one to the other. Mainly, intrastate child pornography occurs in the United States, while
obviously, the foreign child sex trade occurs outside the United States. If Congress were given the power to
prosecute crimes that occur wholly outside its own borders, there could be no natural stopping point for any
crimes, even if they are wholly intrastate or wholly foreign activities. Because Congress has been given so
much leeway to legislate via the Commerce Clause, there are valid and reasonable fears that Congress is
becoming the tyrant the Founders feared when they carefully drafted the Constitution. Based on the
Supreme Court's newest decision there really is no limit on Congress's ability to legislate under the
Commerce Clause, because as defined, an economic activity is one that involves "the production,
distribution, and consumption of commodities." 270 There can hardly be imagined a more broadly
construed definition and there is hardly any product or activity that does not have something to do with
producing, distributing, or consuming a commodity. Without the valuable check provided by the
Judiciary, Congress will continue to expand its jurisdiction over areas that are traditionally and
constitutionally reserved for the states. Unfortunately for the Judiciary and defendants, the Raich decision
reiterated the belief that as-applied challenges to Commerce Clause statutes cannot be entertained, leaving
the courts only facial challenges, which are "the most difficult challenge sk to mount successfully." 271 With
only this one particularly difficult challenge to statutes, presumably the courts are going to be more
hesitant to strike down whole statutes and will defer more to the will of Congress, leaving Congress to
stretch and manipulate the reach of the Commerce Clause unchecked.
( ) Bush and the conservative court have abandoned federalism – laundry list
David Boaz, executive vice president of the Cato Institute and author of Libertarianism: A Primer, “No Federalism
on the Right,” May 19, 2005, http://www.foxnews.com/story/0,2933,156260,00.html
Federalism has always been a key element of American conservatism. In his 1960 manifesto, The Conscience of a Conservative, Barry
Goldwater called for the federal government to "withdraw promptly and totally from every jurisdiction which the Constitution reserves
to the states." Ronald Reagan ran for president promising to send 25 percent of federal taxes and spending back to the states. As
Republicans took control of Congress in 1995, Newt Gingrich stressed that "we are committed to getting power back to the states."
Lately, though, conservatives -- at last in control of both the White House and both houses of Congress -- have forgotten their
longstanding commitment to reduce federal power and intrusiveness and return many governmental functions to
the states. Instead, they have taken to using their newfound power to impose their own ideas on the whole country. Conservatives once
opposed the creation of a federal Education Department. Congressional Republicans warned, "Decisions which are now made in the
local school or school district will slowly but surely be transferred to Washington…. The Department of Education will end up being the
Nation's super schoolboard. That is something we can all do without.'' But President Bush's No Child Left Behind Act
establishes national education testing standards and makes every local school district accountable to
federal bureaucrats in Washington. President Bush and conservative Republicans have been trying to restrain lawsuit abuse by
allowing class-action suits to be moved from state to federal courts. The 2002 election law imposed national standards on the states in
such areas as registration and provisional balloting. A 2004 law established federal standards for state-issued driver's licenses and
personal identification cards. President Bush's "Project Safe Neighborhoods" transfers the prosecution of gun
crimes from states to the federal government. The administration is trying to persuade federal courts to block
implementation of state initiatives on medical marijuana in California and assisted suicide in Oregon. Perhaps most
notoriously, President Bush and conservatives are pushing for a constitutional amendment to ban gay marriage in all 50 states. They talk
about runaway judges and democratic decision-making, but their amendment would forbid the people of New York, Massachusetts,
Connecticut, California or any other state from deciding to allow same-sex marriage. Marriage law has always been a matter for the
states. We should not impose one uniform marriage law on what conservatives used to call "the sovereign states." Most recently, we have
the specter of the Republican Congress seeking to override six Florida court decisions in the tragic case of Terri Schiavo, intruding the
federal government into yet another place it doesn't belong. Asked on Fox News about the oddity of conservatives seeking to over-ride
states' rights, Weekly Standard editor Fred Barnes responded: "Please! States' rights? Look, this is a moral issue."
SDI 2008 72
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( ) Federal control over renewables is justified – it’s a national issue, climate change
requires coordination, and emissions are international
Robert W. Eberhardt, JD NYU, 2006, “Federalism and the Siting of Offshore Wind Energy Facilities,” 14
N.Y.U. Envtl. L.J. 374, ln
The potential environmental benefits associated with climate change mitigation raise somewhat distinct questions about the theoretical justifications for state environmental regulation
of offshore wind energy facilities. First, because greenhouse gases disperse evenly in the atmosphere and climate change
stands to affect local environments in locations across the country, climate change clearly is an
environmental concern of national dimensions. Emissions reductions resulting from the development of a facility have the potential to generate
positive horizontal spillovers, and thus a state-based siting regime could lead to the construction of fewer facilities than justified by efficiency criteria. n145 This could
justify national regulations with a preemptive effect over restrictive state siting standards. Second, the sheer scale of the mitigation effort required
to stabilize ambient greenhouse gas concentrations requires the implementation of multiple mitigation measures at a large scale. This sets up a classic prisoner's dilemma among the
states, and the resulting coordination problem provides a theoretical justification for national regulation. One offshore wind energy facility (even if it completely displaced electricity
generated by an inefficient conventional coal-fired power plant) would result in emissions reductions dwarfed by total regional emissions and the scale of reductions required to
stabilize ambient concentrations. n146 As a result, an effective climate change strategy likely would require the [*408] development of multiple facilities under the regulation of
multiple states and, without assurances that other states will follow suit, a state may rationally conclude that climate change mitigation benefits do not justify the acceptance of scenic
or aesthetic impacts or other environmental costs. Furthermore, coordination problems are intensified by the fact that offshore wind energy is only one of many potential climate
change mitigation measures, and an effective climate change strategy undoubtedly will require other measures in other sectors and in other states lacking offshore wind resources.
n147 General inattention or hostility by other states to climate change mitigation could offset any reductions resulting even from the large-scale development of offshore wind energy
The need to coordinate activities among states, and to prevent states
facilities, further intensifying coordination problems. n148
from making collectively irrational regulatory decisions, provides a theoretical justification for federal
regulation addressing climate change mitigation measures that would have a preemptive effect over
more restrictive state siting criteria. n149 Third, climate change is a problem of international dimensions;
emissions from all sources contribute to climate change, and climate change stands to affect local
environmental conditions across the globe. In the U.S. federal system, the national government, through the
Senate's power to ratify treaties and the President's inherent powers over foreign affairs, has the power to
negotiate and enter into agreements with co-equal sovereign governments to address issues of
international dimensions. n150 Given the national government's role in international affairs, federal
regulation of climate change mitigation measures may be theoretically justified by the potential for
state actions to affect the ability of the national government [*409] to meet treaty obligations or secure
commitments from other countries favorable to the nation as a whole. n151 Depending on the relative
positions on climate change taken by the state and national governments, preemptive effects prohibiting more
restrictive or more permissive state regulation may be justified.
SDI 2008 74
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( ) Emerging democracies of the past 20 years prove the US federalist model no longer
holds sway – this evidence is the most historically factual and should be preferred.
Andrew Moravcsik, Professor of Politics at Princeton University. Newsweek, 1/31/05. “Dream On, America.”
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'." Much in American law and society troubles the world these days.
Nearly all countries reject the United States' right to bear arms as a quirky and dangerous anachronism.
They abhor the death penalty and demand broader privacy protections. Above all, once most foreign systems reach a
reasonable level of affluence, they follow the Europeans in treating the provision of adequate social welfare is a basic right. All this, says
Bruce Ackerman at Yale University Law School, contributes to the growing sense that American law, once the world
standard, has become "provincial." The United States' refusal to apply the Geneva Conventions to certain
terrorist suspects, to ratify global human-rights treaties such as the innocuous Convention on the Rights of
the Child or to endorse the International Criminal Court (coupled with the abuses at Abu Ghraib and
Guantanamo) only reinforces the conviction that America's Constitution and legal system are out of
step with the rest of the world.
SDI 2008 75
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1. Risk
World Policy Journal March 22, 1999
"The defining mode of conflict in the era ahead," Sen. Daniel Patrick Moynihan declared in 1993, "is
ethnic conflict. It promises to be savage. Get ready for 50 new countries in the world in the next 50
years. Most of them will be born in bloodshed."Moynihan's apocalyptic vision is not untypical of the
prevailing wisdom. History, it seems to many, has exacted its own revenge on what Francis Fukuyama so
rashly suggested was the posthistorical world, in the form of conflicts sparked and sustained by ancient and
incomprehensible hatreds and bloodlusts. To many analysts, class conflict is passe; the "proxy wars" of the
Cold War era can, by definition, no longer occur; and even realpolitik, with rational states pursuing their
clearly defined interests, seems dated. Ethnicity, it seems, is the new, dominant causality.
2. Magnitude
Los Angeles Times, February 26, 1993
It is federalism and confederation that we should be pushing -- not ethnic independence. We should be
tentatively exploring whether some type of Yugoslav confederation is a solution that would make it easier for
different ethnic groups to live together in the new states. The problems we see in Bosnia are nothing
compared to the bloodshed -- and the danger of fascists coming into control of nuclear weapons -- that
would occur if huge multiethnic countries like India, Pakistan and Indonesia start disintegrating.
SDI 2008 76
WHAM! States/Fism Core
No Russian Federalism
( ) Russian federalism is already weak – total lack of federal control
Gregory Shvedov, director of media in Kavkaz, 6-19-2008, “Hearing,” FNS, ln
The first thing I want to touch base would be the lack of federal control. We saw this map on the screen,
when we observed the video which was made by Memorial, and it was good to recognize that the Northern
Caucasus is a small part of the south of Russia. But it was also good to recognize to what extent this is a part
of Russia. Unfortunately, during the last year is we do see that it is less and less a region which is under
the control of federal authorities. What do I mean by this? I don't mean that the separatist movement
is really developed very much in the regions of the Northern Caucasus. Not this is the main point. The
main point is that the level of control, the level of federalism in Russia in general is really very weak.
And especially in the Northern Caucasus, we can hardly see that. These regions are part of a bigger Russia.
Russia’s model accords different powers to different states making it incompatible with the
US model.
Alexander N. Domrin, former Chief Specialist of the Foreign Relations Committee of the Russian Supreme
Soviet. Spring, 2006. Transnational Law & Contemporary Problems. 15 Transnat'l L. & Contemp. Probs. 515.
“Comparative Constitutional Law at Iowa: From Fragmentation to Balance: The Shifting Model of Federalism in
Post-Soviet Russia.”
Unlike in the United States and some other federations of the world whose states, provinces, or lands enjoy
equal political status, subjects of the Russian Federation have varying statuses. Even though the
Constitution proclaims that federal units have equal rights and responsibilities and "enjoy full state power
outside the limits of jurisdiction" of the Federation or the spheres of "joint competence," 4 in practical terms,
some subjects enjoy "full state power" more than others. In this respect, it is fair to say that some
component units of the Russian Federation (always those with a relatively significant percentage of ethnic
minorities in their population) are more "equal" than others.
SDI 2008 81
WHAM! States/Fism Core
No Indonesian Federalism
Indonesian decentralization is failing now – health care.
Samuel S. Lieberman, Staff Associate at the Center for Policy Studies of the Population Council. Joseph J.
Capuno, Assistant Professor at the University of the Philippines School of Economics. AND, Hoang Van
Minh, Vietnamese Doctor. 2005. The World Bank Report: East Asia Decentralizes. “Making Local Government
Work.” http://siteresources.worldbank.org/INTEAPDECEN/Resources/dc-full-report.pdf
Indonesia has not clarified the health roles and responsibilities of central and lower governments after
three years of decentralization. Nor has the country moved to emphasize core public health functions,
or seen marked improvements in specific areas such as infectious disease control, pharmaceuticals, and
human resources. Sectors besides health also have indeterminate policies, prompting advice to clarify
assignments across levels of government and sectors (World Bank 2003a).