Da Federalism

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UMKC SDI 2008 roflzomg Federalism/Lopez extensions

Roger Federeralism DA

DA ShellRoger Federeralism DA ....................................................................................................................................1

Federalism 1NC ................................................................................................................................................2

Federalism 1NC ................................................................................................................................................3Federalism high now .........................................................................................................................................4

Federalism high now .........................................................................................................................................5

Coastal area federalism high now .....................................................................................................................6

New federalism high now .................................................................................................................................7

California maintaining federalism ....................................................................................................................8

A2: Clean air act/fuel economy standards .................................................................................................... ....9

Now is the key time ........................................................................................................................................10

Federalism low now ........................................................................................................................................11Federalism low now ........................................................................................................................................12

Federalism low now ........................................................................................................................................13

Links .............................................................................................................................................. ...... ...... .....14

Links .............................................................................................................................................. ...... ...... .....15

Wind power link .................................................................................................................................... ...... ...16

RPS link ..........................................................................................................................................................17Spillover ..........................................................................................................................................................18

No link ................................................................................................................................................. ...... .....19Model yes ........................................................................................................................................................20

Model no .................................................................................................................................................... .....21Federalism good conflict ............................................................................................................ ...... ...... .....22

Federalism good conflict ............................................................................................................ ...... ...... .....23

Federalism good tyranny ............................................................................................................ ...... ...... .....24

A2: Race to the bottom ...................................................................................................................................25

Federalism bad conflict ................................................................................................................................26

Federalism bad - conflict ................................................................................................................................27

Federalism bad - tyranny ..................................................................................................................... ...... .....28

Liberty impact .................................................................................................................................................29

Iraq federalism good links ............................................................................................................ ...... ...... ...30Iraq Federalism good links ............................................................................................................... ...... .....31

Iraq Federalism good impacts ......................................................................................................................32




Iraq federalism good solvency ................................................................................................................ .....36

Iraq federalism good solvency ................................................................................................................ .....37Iraq federalism good solvency ................................................................................................................ .....38

Iraq federalism good solvency ................................................................................................................ .....39

Iraq federalism bad links .............................................................................................................................40

Iraq federalism bad solvency .......................................................................................................................41

Iraq federalism bad solvency .......................................................................................................................42

Iraq federalism bad solvency .......................................................................................................................43Indonesia federalism now ...............................................................................................................................44

Indonesia federalism good - terrorism ............................................................................................................45Indonesia federalism good - hegemony ..........................................................................................................46

Indonesia federalism bad ................................................................................................................. ...... ...... ...47

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Federalism 1NC

A. Uniqueness: A. Unique internal link federalism is on the brink, but state rights

are winning because of leadership over energy

Raymond C, Scheppach, Executive director of the NGA, Stateline.org, Will the 2008 election improve

state-federal relations? July 9, 2008While 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 statesin 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 andAfghanistan, to terrorism, to Iran and North Korea and to 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, the next 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. Links: Preemption on climate change policy destroys federalism now is the key

time.

Raymond A. Biering, JD Loyola Law School, and Brian S. Biering, University of Oregon School ofLaw, Journal of Environmental Law and Litigation, 2008 lexis

As California and otherstates continue to develop and implement climate change programs, the inherent

tension in our nation's particular form of federalism will necessitate compromise and coordination

between the federal and state jurisdictions. At the heart of the issue of federalism is the argument over the perceivedpolitical advantages and disadvantages inherent in decentralized environmental decision making, as compared to centralized

environmental decision making.The bases for the arguments for decentralized environmental decision making include the states'right to determine environmental protection measures based upon a balance between environmental protection and economic

development; the potential for a greater range of environmental choices based upon local circumstances; the inherent differences

between states in their natural and impacted environments and potential efficiencies resulting from the unique circumstances

applicable to certain environmental measures; and the view that states are more nimble and can provide technological and

regulatory innovation more flexibly than the federal government. 141 The bases for the arguments regarding centralizedenvironmental decision making include concerns that states may adopt less stringent standards; inconsistent state actions may result

in interstate and possibly even foreign policy impacts; centralized environmental decision making may be more efficient in terms of

both research and development of regulatory standards and their effect on nationwide or multi-national industries; and, specific to

climate change, its global [*66] consequences cannot be effectively addressed at the state and local level. 142 Beyond the policychoices inherent to federalism in the context of climate change initiatives, state and regional-level approaches to regulating

greenhouse gases will likely raise broader constitutional concerns. The federal government has yet to comprehensively

occupy the field of climate change initiatives, except arguably with regard to vehicular fuels under CAA

section 202 143 and yet-to-be developed EPA regulations after Massachusetts. Thus, states are free to continue

implementing their own regulatory climate change initiatives, including some that may ultimately be

inconsistent with the efforts of the federal government and other states, until the federal governmenteffectively occupies that field. As previously mentioned, California's Clean Air Act provides that even local and regional airauthorities "may establish additional, stricter standards than those set forth by law or by the state board for nonvehicular sources."

144 Depending on how the federal government ultimately responds to climate change after Massachusetts,

future comprehensive regulatory approaches addressing climate change may turn on questions of federal

supremacy. The Supremacy Clause under the United States Constitution essentially invalidates state laws that "interfere with, orare contrary to" federal law. 145 Federal law can supersede state law through: (1) express preemption, i.e., where Congress

preempts state law in express terms; 146 (2) nullification of a state law to the extent that it actually conflicts with federal law; 147

and (3) implied preemption, i.e., where the federal regulatory scheme "is [*67] sufficiently comprehensive to make reasonable theinference that Congress "left no room' for supplementary state regulation." 148 At this juncture, Congress has not expressly

preempted state action regarding climate change initiatives, except, perhaps, in the context of limited areas like vehicular fuels.Further, in the absence of comprehensive federal legislation addressing climate change, the states' initiatives, both regulatory and

voluntary, are not yet conflicting with federal law. Finally, until the federal government acts definitively and

comprehensively, implied preemption will be limited to those areas where Congress has actually left no

room for supplementary state regulation.

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Federalism 1NC

C. Impact: Federalism preserves peace, preventing ethnic conflicts.

Stephen Calebresi, Associate Professor, Northwestern University School of Law. B.A. 1980, J.D. 1983,Yale, Reflections on United States v. Lopez 94 Mich. L. Rev. 752, Michigan Law Review, December,

1995 lexisSmall state federalism is a big part of what keeps the peace in countries like the United States andSwitzerland. 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. 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 - partlyplanned 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 ofthe reason why democraticmajoritarianism 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. Thereis 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 should absorb more completely the attention

of the U.S. Supreme Court.

Ethnic conflicts lead to global wars

David Lake and Donald Rothchild, USC Political Science Profs, The International Spread of EthnicConflict 1999

Even before fears of nuclear Armageddon could fully fade, new fears of state meltdown and ethnic cleansing have

rippled across the international community. In this new world disorder, many worry that ethnic conflict

is contagious, that conflict in one local can stimulate conflict elsewhere, and that initial outbreaks in the

Balkans, the former Soviet Union and Africa, if not quarantined could set off an epidemic of catastrophic

proportions.

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Federalism high now

States rights strong greenhouse gas emissions policies are key.

Thomas Elias, San Gabriel Valley Tribune (California), "California a key states' rights battleground" June

27, 2008 lexis

There was a time when the phrase "states' rights" was code for trampling on the rights of individuals. Thatwas during the great 20th Century civil rights battle, when many states asserted they had the right to prevent some citizens fromenjoying rights like voting and eating in the restaurants of their choice. But the states' rights argument has been

essentially turned on its head under a U.S. Supreme Court decision and a series of federal administrations

that have tried to allow citizens - and some wild animals - fewer rights than California and other states

want to give them. Add in environmental issues, where this state leads the fight for tough cutbacks on

greenhouse gas emissions and mitigation of worldwide climate change while the national government

pushes the doctrine that federal laws and decisions should always take precedence over state decisions.

State policies and federalism are high now thanks to flexibility efforts against the

Federal Government.

John Dinan, Publius, The state of American Federalism 2007-2008: resurgent state influence in the

national policy process and continued state policy innovation June 22, 2008 lexis

By any measure, state governments were at the forefront of domestic policy-making in 2007 and early2008. Not only were state officials more successful than in any prior year of the Bush presidency in securing relief

from burdensome federal directives regarding the National Guard, homeland security, education, and welfare policy, but theywere also as active as ever in adopting policy innovations in areas such as illegal immigration, health

care, and environmental protection. To be sure, state influence in the national policy process was not so strong as to bringan end to other contested requirements in the No Child Left Behind Act (NCLB), Temporary Assistance for Needy Families

program (TANF), and REAL ID Act or to fend off new federal directives in other areas. Nor were state officials free of federal

constraints as they targeted illegal immigration, expanded health care coverage, and addressed climate change, given that state acts

generated federal lawsuits and agency rulings preempting state authority in each of these areas. Nevertheless, states were more

influential than in recent years in gaining flexibility in implementing federal legislation, and they

continued to be the main innovators in policy areas where the public was especially desirous of

governmental action.

Federalism increasing now.


national policy process and continued state policy innovation June 22, 2008 lexisWhat is notable about state efforts to influence national policy-making in 2007-2008 is that state officials at one time or another

employed each of these tactics and experienced notable success in persuading federal officials to take account of their concerns.

Not only did states persuade the new Democratic-controlled Congress to repeal a year-old provision thatenhanced presidential power to federalize National Guard troops, but they also won major concessions in

the drafting of a national disaster-response plan and gained varying degrees of flexibility in implementing

REAL ID, NCLB, and TANF. It is true that state officials have additional grievances about each of these programs that wentunaddressed, and so some of these were only partial victories and served mainly to recapture some of the ground lost in the first six

years of the Bush presidency, which was characterized by an increasing centralization of power on many fronts (Conlan and Dinan

2007). Moreover, states remain unsatisfied with federal officials' responsiveness to complaints about other directives imposed

during the year, such as flexibility under the State Children's Health Insurance Program (SCHIP) and Medicaid. Additionally, stateofficials were uncertain at year's end about their ability to head off other proposed mandates, including some proposed by members

of the new Democratic congressional majority and others that enjoyed bipartisan backing. Nevertheless, state officials in

2007-2008 enjoyed a string of successes that can be attributed to lobbying tactics that states pursued in anaggressive and skillful fashion and to federal officials' receptivity to the concerns of states and localities

tasked with implementing federal directives.

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Federalism high now

Federalism is shining due to federal inaction on climate change.

Pam Doughman, Ph.D., University of Illinois, and Allison M. Chatrchyan, Ph.D, Cornell University,"State and Regional Efforts to Address a Global Environmental Issue: Climate Change Policies in

California, New York, and the Northeast" March 2007This paper argues that in the absence of mandatory federal action on climate change from the late 1990s, US statesincluding CA, NY, Maine and others, and various regional climate change initiatives, took on a leading role in developing

their own climate change policies, putting increasing pressure on the US government to address climate

change at the federal level. The paper argues that federalism has played an essential role spurring state and

regional leadership in the face of US inaction.

Carbon federalism high now.

ChristopherBerendt, Director of Environmental Market Services, Pace Energy Services, "Are We

Reaching the Sum of Carbon Federalism" April 2007The current state of carbon regulations in the United States is best described as Carbon Federalism. This

term speaks to the fact that individual States and coalitions of States are currently the driving force behind

carbon controls and the promotion of low-carbon technology. The States are acting as a laboratory to test a host of

climate change policy approaches and identify best practices in advance of federal action an effect that is often cited as a coreaspect of federalism. While many of the results of these tests will not be known for some time, the very fact that the testing is

planned is increasing the political pressure on Congress to legislate economy-wide carbon controls into federal law. This

underscores the importance of maintaining a watchful eye on these experiments to gauge the viability of the risks and opportunitiescreated by the momentum. The actions by various States to address climate change started years ago and have taken a diversity of

forms from clean energy fund creation, renewable portfolio standards, and energy efficiency rebate programs to reforestation, HOV

lane adoptions, and low-carbon technology tax incentives. However, the last three years have seen increased public pressures on the

States to step up engagement of the climate issue. These pressures are a reflection of the strong consensus in the climatologist

community regarding the science of, and the impacts resulting from, a changing climate. More so than the science, the

exponential increases in media attention and public awareness regarding the specter of climate change is

likely responsible for the new climate of carbon urgency. Many States have responded to this urgency byadopting more rigorous carbon targets coupled with the planned adoption of mandatory or compliance

carbon markets. The most notable efforts are in the Northeastern and Mid-Atlantic States surrounding the RegionalGreenhouse Gas Initiative (RGGI) and in California and the Western Governors Association (WGA). These States represent almost

35% of the U.S. population and almost a quarter of all the power consumed in the country. The efforts seek to implement cap-and-

trade systems which create compliance carbon markets. Other regulatory schemes of note include low-carbonautomotive and fuel standards as well as greenhouse gas emissions generator performance standards

applied to power purchase contracts.

States will continue increasing their role in climate change.

Barry G. Rabe, professor of public policy at the Gerald R. Ford School of Public Policy at University of

Michigan, "Second generation climate policies in the United States" January 2, 2008Despite these potential impediments, all indicators suggest that climate policy has not only reached the agenda of

most state capitals but is actively moving ahead with fairly broad political support. It appears reasonable

to anticipate continued state climate policy engagement in coming years, giving a growing set of states alevel of climate commitment and expertise that rivals the most aggressive nations pursuing Kyoto. All ofthis suggests that the U.S. context for climate policy is far more complexand far less fruitlessthan many conventional

depictions would suggest. Moreover, there are abundant precedents in other policy areas whereby states take the lead and remain

active in long-term policy development and implementation. Consequently, there is ample reason to suspect thatstates will remain central players in the evolution of U.S. climate policy, with considerable potential for

achieving emission reductions and providing lessons and models worthy of consideration in Washington

and around the world.

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Coastal area federalism high now

Coastal areas are decentralized now.

Rosty H. Russell, J.D., Harvard Law School, Boston College Environmental Affairs Law Review, 2004lexis

Over the centuries, the American coastline has become a conflict waiting to happen. From colonial times, public trust concepts have

accorded to private citizens the right to engage in a variety of commercial activities along the coast and in coastal waters. 61 Duringthat early period, the states generally took the lead in regulating offshore fishing. 62 Not long after, the federal government

developed an interest in maintaining shoreline integrity. 63 American federalism, augmented by a long tradition of

local land use control, continues to ensure that coastal oversight is a relatively decentralized, and

therefore complex, task.

More ev Coastal Zone Management Act locks in devolutionary action.


The Coastal Zone Management Act (CZMA) 71 establishes the structure whereby competing demands and conflicts along the coast

and in state waters are mediated among federal, state, and local agencies. 72 [*234] When it was enacted more than thirty years ago,the CZMA presaged a shift in regulatory authority from the federal government to the states--a trend that has accelerated over the

past two decades. 73 The Act and state programs it promotes mark a period of intensifying and sometimes

incompatible public and private interest in coastal resources, both on land and in water. Unlike other

legislation affecting the coast and ocean, 74 the CZMA is designed to be general and integrative in its

application. Unlike many other major environmental laws, it openly embraces a devolutionary federalism.

75 It encourages states to take charge of their own coastal problems, often with little federal oversight and

even less interference.

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California maintaining federalism

California's policies are preserving federalism's existence.

Thomas Elias, San Gabriel Valley Tribune (California), "California a key states' rights battleground" June

27, 2008 lexisCooper then compromised, allowing some sonar use, and the exercises went forward. That case, too, will likely end up in the

Supreme Court just like the greenhouse gas dispute. And it should. For if presidents can override state and federalenvironmental laws for the sake of mere training exercises that hardly constitute emergency actions, they

can declare almost anything a national security emergency, including things like overriding laws that now

restrict oil drilling off the California coast. Under an administration willing to claim almost anything -including an absurd assertion by Vice President Dick Cheney that his office is not part of the executive branch of government

despite having assigned space in the White House - to increase its power, it is vital for states to fight back against

wrongheaded federal actions. That's why California is now a key battleground in an entirely new states'

rights battle, one that will continue for many years if presidents keep wishing they were dictators.

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A2: Clean air act/fuel economy standards

The clean air act is cooperative federalism - doesn't non unique the DA.

Sara A. Colangelo, Environmental Law, "The politics of preemption: an application of preemption

jurisprudence and policy to California Assembly Bill 1493" January 1, 2007California not only outpaced the nation in terms of its air pollution abatement measures, but also forged advanced methods to

control auto emissions through mobile source technology: "In 1960, the state established an emissions control board to oversee the

development of emissions control equipment.... Installation was required on new and used cars, and ... the registration requirementswent into effect in 1965, over the vigorous opposition of the automobile manufacturers." (28) Although modest federal regulation of

air pollution did occur in the 1960s, the CAA Amendments of 1970 gave rise to CAA's current form. (29) The CAA's goal is to

"[achieve] air quality levels throughout the country that protect the public health and welfare." (30) The

CAA adopted a cooperative federalism approach to attaining this goal, creating National Ambient Air

Quality Standards (NAAQS) for a set of pollutants affecting public health, (31) while leaving states with

the flexibility to decide how each standard could best be met in their state. Specifically, section 109 of the CAAcharges the Environmental Protection Agency (EPA) Administrator with establishing NAAQS "allowing an adequate margin of

safety ... requisite to protect the public health," (32) while section 110 charges each state with the responsibility of creating a state

implementation plan (SIP) for achieving the NAAQS. (33)

Fuel economy standards do not restrict carbon programs.

Daniel A. Farber, Sho Sato Professor of Law and Faculty Director of the California Center forEnvironmental Law and Policy, University of California, Berkeley, "Climate Change, Federalism, and the

Constitution" 2008EPA finally argues that it cannot regulate carbon dioxide emissions from motor vehicles because doing so

would require it to tighten mileage standards, a job (according to EPA) that Congress has assigned to DOT. But that DOTsets mileage standards in no way licenses EPA to shirk its environmental responsibilities. EPA has been charged with protecting the

publics health and welfare, a statutory obligation wholly independent of DOTs mandate to promote energy efficiency. The

two obligations may overlap, but there is no reason to think the two agencies cannot both administer their

obligations and yet avoid inconsistency.52 Obviously, this does not speak directly to the issue of state preemption, but it

does suggest that the Court views fuel efficiency rules and limitations on CO2 emissions as two verydifferent matters.

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Now is the key time

Now is the key time to establish the direction of federalism in the future.

Raymond C. Scheppach, Ph.D., executive director of the National Governors Association, Stateline.org,

Will the 2008 election improve state-federal relations? July 9, 2008 lexis

As the next president and Congress begin to set an agenda for 2009, it is critical that they understand boththe shift in responsibilities that has taken place over the last decade on domestic issues, as well as the role

states can play in helping move the country forward. They should build on states' leadership and expertise on the major

domestic issues. The good news is that states have shown a real policy path on these domestic issues; the bad

news is that states could become an obstacle if the federal government continues a coercive approach to

federalism. Essentially, the federal government should establish the policy framework, then provide incentives for states toimplement the policies with considerable flexibility. Such an approach would use state expertise and leadership to their full

potential. Although this may mean less uniformity across states in policies and programs, it will result in

more adaptable solutions to domestic challenges and perhaps a stronger national consensus on policy.

Most of all, it would help the next Congress and next administration actually deliver to the Americanpeople comprehensive legislation on health care, energy and climate change.

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Federalism low now

Preemption and restrictions of states rights now.


national policy process and continued state policy innovation June 22, 2008 lexisTo highlight the ways that states gained flexibility from federal directives and served as policy innovators in 2007-2008 is not to

discount the instances when they continued to encounter coercive mandates and constraints of the kind seen in the first six years of

the Bushpresidency (Posner 2007). Even with the various successes states realized in securing relaxation of

federal directives, they are still tasked with implementing a number of existing requirements concerning

NCLB, REAL ID, and TANF that were adopted from 2001 to 2006. In terms of new challenges tocontinued state innovation, federal judges issued rulings constraining state discretion regarding

immigration, healthcare, election reform, and the death penalty. And federal agencies sought to preempt

state innovation regarding greenhouse gas emissions.

The DA has been non-uniqued 57 times from 2001 to 2006.

OMB Watch, "States Losing Ability to Protect Public Due to Federal Preemptions" June 13, 2006A new compilation of congressional activity reveals that Congress has voted 57 times to preempt statelaw and regulations in the last five years, including preventing states from instituting health, safety, and

environmental standards. According to a report released June 6 by House Government Reform Committee ranking member

Henry Waxman (D-CA), those votes have resulted in 27 laws overriding state laws and regulations, including

39 preemption provisions.

The Energy Policy Act of 2005 gutted states rights.

OMB Watch, "States Losing Ability to Protect Public Due to Federal Preemptions" June 13, 2006Preemption of environmental law Energy Policy Act of 2005 (Pub. L. No. 109-58) scraps state and local

government's authority over environmental and land use policy. For example, the act limits the extent to

which states can require cleaner burning fuels in automobiles. The bill also takes the authority to approve

the siting of transmission lines out of the hands of state and local government.

Recent trends have not been in favor of Federalism despite significant state action

on climate change.Barry Rabe, ASAP, Oxford University Press, Publius, "Environmental policy and the Bush era" June 22,

2007 lexisOne might assume from such a development that the decentralization mantra so pervasive in environmental policy in the late 1980s

and throughout the 1990s had reached a new level during the current decade. In some respects, such as climate change

policy development and implementation, the American system of environmental federalism is more state-driven

than ever before. However, it would be a mistake to assume that this trend holds across various

environmental policy areas or that some structured or cooperative set of intergovernmental negotiations

have guided these transitions. Despite considerable initial expectation that the Bush administration would build seriously

on recent decentralization experiments, the third-quarter mark of his Presidency was passed with a very different record,including a number of significant efforts to expand federal--and executive branch--authority. In turn,

federal-state conflict over environmental policy may well have reached its highest level in at least two

decades.

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Federalism low now

State policies are still influenced by an expectation of federal preemption.

Barry Rabe, ASAP, Oxford University Press, Publius, "Environmental policy and the Bush era" June 22,

2007 lexisAside from some early federal efforts to provide technical support to state policy development that were launched in the George

H.W. Bush administration and sustained during the Clinton years, all of this involves unilateral state action in theabsence of any significant support or encouragement from the federal government. In fact, states have

designed a number of these programs so as to minimize the likelihood of possible federal opposition.

State officials involved in RGGI development, for example, readily note that they would benefit handily

from federal collaboration and would normally work with the administration and Congress to set up an

interstate compact to support this regional effort. But their experience with Washington to date suggests

that most federal engagement has been designed to derail their efforts, hence the focus on a loose structure ofmemoranda-of-understanding among states who then pledge to take identical but unilateral steps rather than a compact that would

require federal government approval.

Federalism has been under severe stress for the last decade the direction of

federalism in the future will be determined by the NEXT administration and

congress, not the plan.

Raymond C. Scheppach, Ph.D., executive director of the National Governors Association, Stateline.org,Will the 2008 election improve state-federal relations? July 9, 2008 lexis

Here's a crucial question for the presumed presidential nominees - Republican John McCain and Democrat Barack Obama - and all

the candidates for the next Congress. Are you happy with the status quo in federal-state relations? States have long served as

laboratories for creating and testing policies and programs that drive positive change nationally. Yet for more than a decade,

the federal-state relationship has been under stress. Looking forward, the nation faces many challenges,

and states can play a key role in providing leadership. However, whether governors and states provide separate,independent leadership or leadership within a stronger federal-state partnership will depend on which

brand of federalism the next administration and Congress adopt.

Non unique - state action continues to be preempted.


national policy process and continued state policy innovation June 22, 2008 lexisStates 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 a number 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 and support for continuedstate policy innovation may well account for the post-2005 up tick 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." Of particular significance in 2007-2008 were a series of aggressive

responses to this state innovation on the part of individuals seeking to preempt state action. On a number

of occasions, particularly in response to state laws addressing immigration, climate change, and healthcare, individuals who oppose state policies sought to preempt state action by securing federal agency

rulings or court decisions. The overall lesson to emerge from state policy-making this past year, therefore,

is that states were as active as ever in adopting policy innovations, but they also confronted new

challenges to continued innovation, especially as a result of federal lawsuits.

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Federalism low now

State progress is limited by federal preemption now.


national policy process and continued state policy innovation June 22, 2008 lexisTo highlight the ways that states gained flexibility from federal directives and served as policy innovators in 2007-2008 is not to

discount the instances when they continued to encounter coercive mandates and constraints of the kind seen in the first six years of

the Bush presidency (Posner 2007). Even with the various successes states realized in securing relaxation of

federal directives, they are still tasked with implementing a number of existing requirements concerning

NCLB, REAL ID, and TANF that were adopted from 2001 to 2006. In terms of new challenges tocontinued state innovation, federal judges issued rulings constraining state discretion regarding

immigration, healthcare, election reform, and the death penalty. And federal agencies sought to preempt

state innovation regarding greenhouse gas emissions.

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Links

Restricting state flexibility crushes federalism.

OMB Watch, "States Losing Ability to Protect Public Due to Federal Preemptions" June 13, 2006Federal law and regulation is able to solve national problems through national solutions that impact and benefit all members of

society. At the same time, states have long been pioneers in advancing groundbreaking social policies.

Allowing states the flexibility to meet particular local needs while requiring a basic level of public

protection for all citizens has long been an important issue for the balance of power between federal and

state governments. The answer has long been "floors, not ceilings"--turning to the federal government for the base level of

protection, and allowing the states to offer their citizens more stringent safeguards. Without any sufficient showing of a

compelling need for national uniformity, these acts of Congress and the White House turn the

federal/state balance around, suppressing states abilities to provide services and protections that go aboveand beyond federal laws and regulations.

Preemption on energy policy threatens federalism.

Sara A. Colangelo, Environmental Law, "The politics of preemption: an application of preemption

jurisprudence and policy to California Assembly Bill 1493" January 1, 2007Remarking on the difficulty of deciding questions of preemption, the Supreme Court has acknowledged that preemption lacks an"infallible constitutional test or an exclusive constitutional yardstick. In the final analysis, there can be no one crystal clear distinctly

marked formula." (4) Preemption jurisprudence illustrates a compromise between concerns for federalism andstates' rights, and concerns for uniformity in matters of the national economy. The current debate over

domestic energy policy and climate change initiatives highlights the challenge in allocating power

between the federal government and the states . Energy, environmental, and automotive regulations typify such concernsbecause they encompass traditional state domains of health and safety, and federal domains of national and transnational industries.

Thus, as states begin undertaking individual and collective action directed at the issue of climate change,

questions of preemption surface to challenge the constitutionality of such action.

Federal leadership on climate change destroys federalism.

Eileen Claussen, President, Pew Center on Global Climate Change, Speech at the Pew Center State and

Federal Workshop, February 25, 2008Does this mean the states should step aside and cede the leadership role on the climate issue to

Washington? No. The states can and should keep exploring ways to leverage their unique authorities in

areas from energy regulation to building codes, smart-growth planning and more. States are doing important andvaluable work in all of these areas, and that must continue at the same time that the federal government begins to fulfill its role in

the partnership. In closing, I want to remind you of the vision of Justice Louis Brandeis. He saw the U.S. states as laboratories of

democracy where policy innovations could take hold and perhaps provide models for other states, and for our national government

as well. And I honestly believe we would not be where we are today in the climate debate on the verge of adopting a national cap-and-trade program if many of the states had not acted first to adopt their own targets and to pursue cross-border emission trading

regimes. The U.S. states are acting in the best traditions of federalism by advancing an array of solutions to

climate change that address their specific concerns and that take advantage of their unique responsibilities

in our federalist system of government. Today, the challenge is to create a more balanced state and federal

partnership a partnership that promises to bring much-needed certainty to the question of how we as a

nation are going to address the most critical environmental issue of our time.

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Links

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), stateshave 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-makingwith 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.

The federalism balance over alternative energy has decisively shifted to the states

its a key part of decentralizing government

Steven Ferrey, Law Prof @ Harvard, Fall 2003, Nothing But Net, 14 Duke Envtl. L. & Poly F. 1, lnWith state governments at the barricades of federalism, an energy revolution has been launched. Perhaps

usurping federal law, thirty-eight states recently mounted a statutory and regulatory charge to establish

"net metering," a regulatory innovation to implement decentralized renewable power. This innovationfundamentally shifts the regulatory balance as well as the energy mix in America. Net metering

profoundly reshapes the energy landscape, providing the most significant boost of any policy tool at any

level of government - both qualitatively and quantitatively - to decentralize and "green" American energy

sources. While only twelve states have passed statutory initiatives to implement renewable energy systembenefit charges and eight have elected to implement renewable portfolio standards, n1 thirty-six states to

date have implemented net metering. n2 Net metering enables consumers with small generating facilities,

for example solar panels, fuel cells, or wind turbine systems, to offset their electric bills with any excess

[*2] power produced at their facility, running the retail utility meter backwards when the renewableenergy generator funnels power to the grid. Net billing, or net metering, is the cornerstone of state energy

policies encouraging private investment in renewable energy sources. n3

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Wind power link

Wind power is unique to coastal area federalism.


For the development of offshore wind power, the structure of the state coastal zone management systemcreates a potentially serious boundary, or spillover, problem. Wind energy provides significant benefits

well beyond the borders of a given jurisdiction--for example, by addressing climate change and global

security issues. But a relatively small percentage of those benefits are captured locally. Moreover, in atleast some cases, the local benefits of wind energy will not outweigh the locally perceived detriment to

coastal "character," aesthetics, other environmental values, and other uses of coastal resources. 117

Although this spillover, or externality, problem is not unique to wind development, 118 it presents itself

here in an unusual posture, 119 given the continuing debate over the nature and significance of the local

impacts of wind, and the equity issues that a shoreline headcount cannot adequately resolve. 120

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RPS link

RPS is the classic case of federalism.

The Electricity Daily, "Pew Scopes Spread of RPS" June 19, 2006 lexisThe report, "1Race to the Top: The Expanding Role of U.S. State Renewable Portfolio Standards," was

authored by Barry Rabe, a University of Michigan professor. Rabe characterized the growth of state-levelRPS's as a "classic case in federalism," the Wall Street Journal reported. Rabe said, "These states have

had very little contact with federal officials. There's this disconnect," the Journal reported.

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Spillover

Each intrusion on federalism erodes the balance of power.

James Lack, Senator NY, 7-11-1995, Serial No. J-104-31, p. 11Every 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 innullifying 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.

Single big federalism decisions are key they send an important signal that shapes

politics.

Stephen G. Calabresi, professor of law @ Northwestern, Mar. 2001, The Annals of the AmericanAcademy of Political and Social Science, 574 Annals 24

When the Supreme Court decides a big federalism case like Lopez, it does a lot more than simply resolve

the immediate case and issue at hand. In some fundamental sense, it sets up a symbol for the American

people of the importance that is attached to a constitutional value or norm. Symbolism is terribly

important in constitutions and in constitutional case law. Symbols help citizens organize their beliefs,

reinforce core values, and provide a rallying point for those who believe in them, thus reducing the costs

of organization. When powerful symbols issue from the Supreme Court of the United States, thosesymbols help to set the national agenda, and they affect the flow of our politics. Lopez, for example,caused devolution and federalism concerns to become more prominent in Congress than they otherwise

might have been. This may well have played into the last Congresss decision to devolve part of the

federal welfare entitlement to the states.

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No link

States are asking for federal action.

Katherine Mangu-Ward, Reason associate editor, Reason Magazine, "Arnold Among the Lilliputians"

April 22, 2008

One of Schwarzenegger's applause lines: "We don't wait for Washington, because I've always saidWashington is asleep at the wheel." This newfound pride in federalism has its definite limits. For every

states' rights rah rah, there was a wistful plea for more federal regulation on carbon production. Even

states' rights revisionist Gov. Sebelius said she hoped that "the roles will be reversed in the next

administration." A proposed cap and trade plan, Gov. Jon Corzine said, is something he'd "love to see

globally, love to see nationally, but unfortunately narrowed to regional efforts."

The feds can regulate greenhouse emissions because of the commerce clause the

plan doesnt hurt federalism

Robert K. Huffman, lawyer, and Jonathan M. Weisgall, VP at MidAmerican Holdings,Winter2008,Climate Change and the States, Sustainable Development Journal,

http://www.wcl.american.edu/org/sustainabledevelopment/2008/winter08.pdf?rd=1

The United States system of federalism allows the federal and state governments to share power in

certain areas, while each maintains exclusive areas where the other may not regulate. The power of the federalgovernment is constrained by the Constitution and does not include general police powers, which are reserved to the states.46 State

governments, however, may not regulate certain aspects of interstate and foreign commerce, foreign affairs, and other areas of

reserved federal power. When states take actions to regulate greenhouse gases, it raises questions about the

extent of state authority to regulate the economy and the environment. Linking emissions trading programs orenacting auto emissions regulations brings states to the far end of their regulatory authority, given the transborder nature of emissiontrading and carbon dioxide emissions generally. This section explores the constitutional issues that can potentially arise from state

actions to reduce GHG emissions. Commerce Clause The Commerce Clause, Article I, 8, cl. 3, gives the federal

government the power [t]o regulate Commerce with foreign Nations, and among the several States[.]47 The SupremeCourt has long considered the Commerce Clause to be an implicit restraint on state authority, even in the absence of a conflicting

federal statute.48 This concept is known as the Dormant Commerce Clausewherein the Constitution acts as a prohibition on

certain types of state actions that affect interstate commerce, invalidating the state law by negative implication.49 Although the

Dormant Commerce Clause doctrine has gained widespread acceptance, at least two current Supreme Court justices (Justice Scalia

and Justice Thomas) reject it altogether. Regardless of these two justices, it is highly unlikely that a majority of the

Court would reject the Dormant Commerce Clause doctrine. Were the doctrine to be rejected by the Court, stateactions would never be invalidated for conflicting with unexercised congressional power under the Commerce Clause, but would besubject to invalidation only for express or implied preemption by federal law.

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Model yes

U.S. federalism is modeled worldwide.

Chilbi Mallat, University of London Doctoral Candidate, Case Western Reserve Journal of International

Law, Winter2003 lexisLaurence 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 forboth inventions which brought new dimensions to democracy and the rule oflaw 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.

The world models US style federalism.


1995 lexisAt the same time, U.S.- style constitutional federalism has become the order of the day in an extraordinarily

large number of 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 thanthe ones they replaced. 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.

US federalism is modeled worldwide.


1995 lexisWe 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 developmentthat 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. n233 The U.S. Supreme Court can do its part to encouragethe 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.

The world is watching so the US must retain and strengthen federalism.


1995 lexisWorld-wide interest in federalism is greater today than it ever has been before at any other time in human

history. In section A, below, I discuss at some length why this is the case and what lessons the global federalism revolution might

hold for the United States. I conclude that federalism is the wave of the future, that nationalism and the centralizednation-state have been discredited for good reasons, and that these reasons strongly suggest that the

United States should retain and strengthen its federal structure.

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Model no

U.S. federalism isnt modeled abroad

Newsweek, January 31, 2006 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 epochalinnovationsfree 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 apolite 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," hesays. "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'."

Other countries dont model United States federalism.

Andrew Moravcsik, Newsweek, January 31, 2005Once upon a time, the U.S. Constitution was a revolutionary document, full of epochal innovations--freeelections, 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 gota polite hearing, and were sent home. Jiri Pehe, adviser to former president Vaclav Havel, recalls the Czechs' firm decision to adopta 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 thecountry, 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 statethey 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. "Toborrow Lincoln's phrase, South Africa is now Africa's 'last great hope'."Much in American law and society troubles the world thesedays. 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 andGuantanamo) only reinforces the conviction that America's Constitution and legal system are out of step

with the rest of the world.

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Federalism good conflict

State-lead action will lead to cooperative federalism that solves the case.

Raymond A. Biering, JD Loyola Law School, and Brian S. Biering, University of Oregon School of

Law, Journal of Environmental Law and Litigation, 2008 lexis

In the final analysis, the issue is not simply a choice between federal and state approaches to address climatechange, but rather, whether federal and state approaches can be harmonized to complement each other.

Most modern federal environmental laws contemplate concurrent federal and state roles. The relationshipbetween the federal and state standards with regard to air pollution under the CAA was discussed above. 161 In view of the

importance and immediacy of the climate change problem, and especially in view of the significant state and regional efforts that

have occurred to date, it is neither necessary nor wise for federal law to completely preempt and prevent state

and regional initiatives addressing climate change. While the global nature of the issue argues for a more uniform

approach to its resolution, ultimately, a well-conceived federal and state "federalist" program that incorporates

coordination of the programs that work best and preempts those that either do not work or are better

handled on a national level, is our most viable approach for effectively and expeditiously addressing

climate change in our time. 162

Federalism preserves peace, presents ethnic conflicts.


1995 lexisSmall 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. 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 ofthe 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. Thereis 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 should absorb more completely the attention

of the U.S. Supreme Court.

Ethnic conflicts lead to global wars

David Lake and Donald Rothchild, USC Political Science Profs, The International Spread of Ethnic

Conflict 1999Even before fears of nuclear Armageddon could fully fade, new fears of state meltdown and ethnic cleansing have

rippled across the international community. In this new world disorder, many worry that ethnic conflict

is contagious, that conflict in one local can stimulate conflict elsewhere, and that initial outbreaks in the

Balkans, the former Soviet Union and Africa, if not quarantined could set off an epidemic of catastrophic

proportions.

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Federalism good conflict

Reducing federalism increases the probability of wars and conflict


1995 lexisAs 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 highlycentralized democratic nation-states like Great Britain, France, and Italy all face serious secessionist or devolutionary crises. 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 collapsedunder its weight, as has happened in Czechoslovakia, Yugoslavia, and the former Soviet Union.

Federalism helps prevent deadly civil wars and conflicts


1995 lexisAs Lijphart emphasizes, social heterogeneity can pose a big threat to stable democratic government.Federalism sometimes can reduce this threat by giving minorities a level of government within whichthey are the geographical majority. If minorities are concentrated geographically to some degree and if

the nation is willing to cede control over key issues to constitutionally established subunits of the nation,

then federalism can help maintain social peace.

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Federalism good tyranny

Strong federalists system prevents government tyranny

Ernest Young, professor of law at University of Texas, Texas Law Review, The Rehnquist Court's Two

Federalisms, November2004 lexis

More fundamentally, ourfederalism has always been justified as a bulwark against tyranny. Madison extolledfederalism as part of the "double security" that the new Constitution would provide for the people; just as the three branches of thecentral government were to check one another, the state governments would check the center. As Lynn Baker and I have discussed

elsewhere, Madison's discussion in Federalist 46 emphasized worst case scenarios, in which the states would have to oppose the

national government militarily, and this emphasis has sometimes distracted critics of federalism from more prosaic - but also more

relevant - mechanisms by which federalism protects liberty. Even in the Founding period, however, state autonomy buttressed

individual liberty in other, less dramatic ways. States may oppose national policies not only militarily but politically, and in so doing

they may serve as critical rallying points for more widespread popular opposition. Madison and Jefferson, out ofnational power during the Federalist administration of John Adams, worked through the Virginia and Kentucky legislatures to oppose

the Alien and Sedition Acts. The states thus, as Professor Friedman puts it, "serve as an independent means of calling forth the voice

of the people." More recently, "Some state and local governments have proven themselves formidable lobbyists

and indefatigable litigants" on issues such as affirmative action, benefits for the disabled, and

environmental policy

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A2: Race to the bottom

Recent policies prove race-to-the-bottom is a myth - states make independent

decisions.

Barry Rabe, ASAP, Oxford University Press, Publius, "Environmental policy and the Bush era" June 22,

2007 lexisThe state response to the Bush administration actions in environmental policy does not fit that pattern,however. One does see considerable variation among states and, in such instances as proposals for

expanded logging on federal lands or joining lawsuits against the federal government, disagreements

among states about appropriate next steps. But the overall state response entails considerable policy

innovation among a wide range of states in a diverse set of areas, an aggressive response by organizations

representing state agencies against anumber of federal actions, and exploration of litigative strategies to

either protect state authority or prod the federal government to act in areas of environmental concern.

This may reflect a perception in many state capitals that environmental protection coincides with larger

state goals of fostering economic development and protecting public health. It may also underscore the

assessment of political scientist Paul Teske that, contrary to anticipated races to the bottom thatwere

propelled by dominant interest group pressure, "most areas of state regulations are actually characterizedby contested interest group environments within which state institutional actors often make independent

policy choices" (Teske 2004, 2005, 369; Rabe and Mundo 2007).

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Federalism bad conflict

State devolution promotes ethnic violence.

D. Lake, Political Science Professor, The International Spread of Ethnic Conflict, 1998When central authority declines, groups become fearful for their survival. They invest in and prepare for

violence, and thereby make actual violence possible. Whether arising incrementally out of competition between groups

or from extremist factions actively seeking to destroy ethnic peace, state weakness is a necessary precondition for

violent ethnic conflict to erupt.

Devolution caused ethnic conflicts that federalism could not solve in Yugoslovia.

Carol SalnikLeff, professor of political science, World Politics, June 1999By the period of multiple transitions in 1990, therefore, the center no longer held the cards to coordinate a

policy of state maintenance. It was forced to rely on the constitutional courts for adjudication of

republican sovereignty initiatives and helpless to enforce court decisions, which republics systematically

flouted. The center had lost control of the agenda of constitutional revision. Instead those battles were

increasingly fought directly between and among the republics, within the federal presidency, and

bilaterally, as the framework of federal coordination broke down. It was the refusal of Milosevic of Serbiato negotiate a more confederal model as much as the resistance of the deadlocked federal government that

set the stage for the Croatian and Slovenian exodus from the state in June 1991. Once again, the republicsseized the initiative from the center in determining the course of negotiations, although in this case the

outcome was a bargaining stalemate among the republics and violently contested secession.

Empirically, state devolution promotes ethno-nationalism.

Valerie Bunce, US Peace Institute, Politics and Society, June, 1999The formal end of the Yugoslav state, then, was preceded for at least a decade by a process in which the

state, precisely and ironically in strict accordance with ideological precepts, had withered away.

Economic, political, and cultural sovereignty, therefore, had been parceled, and all three forms of

sovereignty resided n the republics that made up the Yugoslav confederation - or what Sabrina Rarnet

aptly termed that time on the Yugoslav "international system." Thus, while struggles over power and

reform immediately preceded, as well as caused, a sudden and rapid decentralization of the Czechoslovak

and Soviet states, a decentralized political economy with full institutional expression was already in place

by the time the Yugoslav regime and state came into serious question.

International federalism causes global ethnic conflicts

David Lake and Donald Rothchild, Political Scientists, The International Spread of Ethnic Conflict,

1999 p. 212Although regional autonomy and federalism have been used as safeguards, they have had, in some

instances, unintended consequences that have actually increased conflict. Despite efforts to decentralize

power in South African and Ethiopia, the fiscal dominance of the political center has tended to undercut

the significance of regional authorities. Moreover, efforts to delineate boundaries have increased conflict

between ethno-regional identity groups. In contemporary Russia, the arbitrary way in which internal

boundaries divide ethnic people has been a major source of tensions. In Ethiopia, the regional boundaries set up bythe government appear to favor Tigray and the Afars, at the expense of the formerly dominant Amhara and the Somali Isaks in the

Awash Valley.

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Federalism bad - conflict

Federalism causes ethnic groups to capture political parties and spark secession

demands

Carol SalnikLeff, professor of political science, World Politics, June 1999

During a political opening in ethno federal states, by contrast, republican governments are available forcapture and utilization as electorally and constitutionally legitimated platforms for pressing demands and

pursuing authoritative negotiation with the center and with other republics. In the longer term the

republican base facilitates the process of secession.

Sudan proves that federalism wont ease ethnic tensions

Edmond Keller, professor of political science, The International Spread of Ethnic Conflict, 1998 p. 287Federalism or regional autonomy are other approaches that can be used to build trust among groups that formally felt threatened.

However, this approach is likely to fail unless leaders are willing to make credible commitments and to

demonstrate consistently that they respect all citizens. Sudan unsuccessfully attempted a regionalautonomy strategy. It was undermined by what proved to be a hegemonic project on the part of Islamic

fundamentalists.

Federalism failed to solve for ethnic tensions in YugoslaviaCarol SalnikLeff, professor of political science, World Politics, June 1999

By the period of multiple transitions in 1990, therefore, the center no longer held the cards to coordinate a policy of state

maintenance. It was forced to rely on the constitutional courts for adjudication of republican sovereignty initiatives and helpless to

enforce court decisions, which republics systematically flouted. The center had lost control of the agenda of

constitutional revision. Instead those battles were increasingly fought directly between and among the

republics, within the federal presidency, and bilaterally, as the framework of federal coordination broke

down. It was the refusal of Milosevic of Serbia to negotiate a more confederal model as much as the resistance of the deadlocked

federal government that set the stage for the Croatian and Slovenian exodus from the state in June 1991. Once again, therepublics seized the initiative from the center in determining the course of negotiations, although in this

case the outcome was a bargaining stalemate among the republics and violently contested secession.

Federalism causes dangerous break-up - strong central power best.

Manila Standard, Antonio C. Abaya, Federalism No Panacea July 28, 2005 lexisFederalism is more suitable for countries with large, contiguous land masses - such as Russia, Canada, the

US, Brazil, Australia, India, Mexico and Germany - where centrifugal forces have less appeal. Yet even

among these examples, there are separatist movements in Canada, Russia and India. Archipelagiccountries (Japan, Indonesia, the Philippines) are better off with unitary states. The recent threat of certain

Filipino mayors and governors, to secede from the Republic if President Arroyo is forcibly removed from

power, may be dismissed as harmless political noise, but they may be aberrations of our personalistic

culture, in the absence of a nationalistic one. In which case, federalism will just lead to the break-up of

the Republic on the whim of regional political bosses.

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Federalism bad - tyranny

Federalism doesnt protect against tyranny or always uphold liberty

H. Geoffrey Moulton, professor of law at Widener University, Minnesota Law Review April 1999 lexisJustice O'Connor in Ashcroft described the other category of federalism's virtues as protecting "our fundamental liberties." She

explained that like the separation of powers between the branches of government, "a healthy balance of power between the States

and the Federal Government will reduce the risk of tyranny and abuse from either front." Federalism's track record asliberty enhancer, however, has been mixed at best. Critics have rightly pointed out that states, left to their

own devices, have been more threat than protection for individual and group rights. Slavery, followed by

persistent, state - sponsored race discrimination, tops a list of federalism's threats to individual liberty that

includes examples in the areas of free speech and freedom of religion, criminal procedure, reproductive

rights and civil rights.National intervention has been and will continue to be necessary where states make choices that the

national polity deems fundamentally unjust. Protecting states from national intervention, in other words, is an

unreliable tool for protecting liberty. If restraining the national government prevents tyranny, it does so based on theprinciple of limited government, not federalism. If federalism promotes liberty, it does so by promoting citizen choice, not by setting

state against federal power.

Strong national government is key to uphold liberty

James Gardner, professor of law, Georgetown Law Journal, June 2003 lexis

State power is a vital element in federalism's design. To put the exercise of state power in context, however, I begin by examiningthe ways in which federalism contemplates that national power may be deployed to protect liberty. In conducting this analysis, I

shall use the term "liberty" in a broad sense. The concept of "liberty" is often equated with the restraint of government power--the

kind of "negative" liberty that Isaiah Berlin defined as freedom from government interference with private decisionmaking.

Although this understanding of liberty captures much of what federalism operates to protect, it is incomplete. If privatedecisionmaking were the sine qua non of collective life, no government would be necessary whose powers would then require

restraint. Government is created and granted powers in the first instance to help citizens achieve some kind of good life, a good life

they are by hypothesis incapable of achieving on their own, either individually or collectively, in the absence of governmental

organization. n To fulfill this function, government needs affirmative powers, not only restraints on its powers. Thus, although

federalism contemplates the division of power to protect "liberty," I shall treat this conventional use of the word as a kind ofsynecdoche that names only one part of the broader notion of achieving, or creating the conditions that enable citizens to achieve, a

substantively desirable way of life. Under this broad definition of liberty, the national government of the United

States contributes to and protects the liberty of American citizens in at least three distinct ways: (1)byusing its affirmative powers in pursuit of the good, (2)by practicing self-restraint, and (3)by restraining

state governments from impairing the ability of citizens to achieve the good.First and foremost, the nationalgovernment protects liberty by using its affirmatively granted powers for the good of the citizenry. This conception of governmental

power is broad enough to embrace any conception of the state, from a minimalist, night-watchman state to the contemporaryEuropean-style social welfare state. Whatever version of the state a society chooses to adopt, a government must exist and must

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Da Federalism

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Transcript of Da Federalism