WHAM States and Federalism

8/14/2019 WHAM States and Federalism

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SDI 2008 1WHAM! States/Fism Core

States/Federalism Core SDI 2008

States CP

States/Federalism Core SDI 2008.........................................1

States/Federalism Core SDI 2008 ..............................................................................................1

States CP 1NC..........................................................................6

States CP 1NC ................................................................................................................................6

States Solve Alternative Energy............................................7

States Solve Alternative Energy .................................................................................................7

States Solve Alternative Energy............................................8

States Solve Alternative Energy .................................................................................................8

States Solve Cap And Trade..................................................9

States Solve Cap And Trade .......................................................................................................9

States Solve Environment....................................................10

States Solve Environment .........................................................................................................10

States Solve International Modeling....................................11

States Solve International Modeling .......................................................................................11

States Federal Modeling....................................................12

States Federal Modeling .........................................................................................................12States Federal Modeling....................................................13

States Federal Modeling .........................................................................................................13AT: States Dont Have Money...............................................14

AT: States Dont Have Money ....................................................................................................14

AT: States Race To Bottom................................................ ....15

AT: States Race To Bottom .........................................................................................................15

AT: Federal Preemption.........................................................16

AT: Federal Preemption .............................................................................................................16

AT: Perm................................................................................17

AT: Perm ......................................................................................................................................17

California Economy Alt-Causes.............................................18

California Economy Alt-Causes ..................................................................................................18

Lopez CP 1NC........................................................................19

Lopez CP 1NC ..............................................................................................................................19

Lopez Federalism Net-Benefit 1NC.......................................20

Lopez Federalism Net-Benefit 1NC ............................................................................................20

Ext Court Can Devolve.......................................................21


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Ext Court Can Devolve .............................................................................................................21

Ext Federalism NB..............................................................22

Ext Federalism NB ....................................................................................................................22

Narrow Ruling Solvency........................................................23

Narrow Ruling Solvency ..............................................................................................................23

AT: No Test Case...................................................................24

AT: No Test Case .........................................................................................................................24

AT: ESA DA No ESA Overturn..........................................25

AT: ESA DA No ESA Overturn ..............................................................................................25

AT: ESA DA ESA Bad Turn..................................... ...... ....26

AT: ESA DA ESA Bad Turn ....................................................................................................26

Feds Will Preempt CP............................................................27

Feds Will Preempt CP .................................................................................................................27States Cant Get Modeled.......................................................28

States Cant Get Modeled ...........................................................................................................28

Federal Key General............................................................29

Federal Key General .................................................................................................................29

Federal Key Environment....................................................30

Federal Key Environment ........................................................................................................30

Perm Solves Best....................................................................31

Perm Solves Best ..........................................................................................................................31California Economy DA 2AC................................................32

California Economy DA 2AC ......................................................................................................32

California Economy DA Links............................................33

California Economy DA Links .................................................................................................33

Federalism Link Turn 2AC.....................................................34

Federalism Link Turn 2AC .........................................................................................................34

Lopez Will Be Rolled Back Congress.................................35

Lopez Will Be Rolled Back Congress ......................................................................................35

Lopez Will Be Rolled Back Executive................................36

Lopez Will Be Rolled Back Executive .....................................................................................36

ESA DA 2AC..........................................................................37

ESA DA 2AC .................................................................................................................................37

ESA DA 2AC..........................................................................38

ESA DA 2AC .................................................................................................................................38

ESA DA Energy Link..........................................................39


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ESA DA Energy Link ................................................................................................................39

ESA DA ESA Based On Commerce Clause........................40

ESA DA ESA Based On Commerce Clause ............................................................................40

ESA Good Species/Economy..............................................41

ESA Good Species/Economy ....................................................................................................41

Economy DA 2AC..................................................................42

Economy DA 2AC ........................................................................................................................42

Economy DA Yes Legal Predictability................................43

Economy DA Yes Legal Predictability .....................................................................................43

Economy DA Predictability Links.......................................44

Economy DA Predictability Links ...........................................................................................44

Federalism DA 1NC...............................................................45

Federalism DA 1NC .....................................................................................................................45Federalism Brink....................................................................46

Federalism Brink .........................................................................................................................46

Yes Federalism General.......................................................47

Yes Federalism General ............................................................................................................47

Yes Federalism Roberts/Alito..............................................48

Yes Federalism Roberts/Alito ...................................................................................................48

Federalism Links Alternative Energy..................................49

Federalism Links Alternative Energy .....................................................................................49Federalism Links Preemption..............................................50

Federalism Links Preemption ..................................................................................................50

Federalism Links RPS.........................................................51

Federalism Links RPS ..............................................................................................................51

Internal Link Slippery Slope...............................................52

Internal Link Slippery Slope ...................................................................................................52

AT: No Spillover Single Decision Key...............................53

AT: No Spillover Single Decision Key ....................................................................................53

Federalism Is Modeled General...........................................54

Federalism Is Modeled General ...............................................................................................54

Federalism Good Impact Hegemony...................................55

Federalism Good Impact Hegemony .......................................................................................55

Federalism Good Impact Democracy..................................56

Federalism Good Impact Democracy ......................................................................................56

Federalism Good Impact Wars............................................57


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Federalism Good Impact Wars ................................................................................................57

Federalism Good Impact AT: Secession..............................58

Federalism Good Impact AT: Secession ..................................................................................58

2NC Russia Impact Module...................................................59

2NC Russia Impact Module ........................................................................................................59

Yes Russian Federalism..........................................................60

Yes Russian Federalism ...............................................................................................................60

Russia Models US Federalism................................................61

Russia Models US Federalism .....................................................................................................61

Russian Federalism Good Civil War...................................62

Russian Federalism Good Civil War .......................................................................................62

Russian Federalism Good Democratization........................63

Russian Federalism Good Democratization ...........................................................................63Russian Federalism Good Russian Economy......................64

Russian Federalism Good Russian Economy .........................................................................64

2NC Indonesia Impact Module..............................................65

2NC Indonesia Impact Module ...................................................................................................65

Yes Indonesian Federalism.....................................................66

Yes Indonesian Federalism ..........................................................................................................66

Indonesia Models US Federalism...........................................67

Indonesia Models US Federalism ...............................................................................................67Indonesian Federalism Good Indonesian Economy............68

Indonesian Federalism Good Indonesian Economy ..............................................................68

Indonesian Instability Impact Global Economy..................69

Indonesian Instability Impact Global Economy ....................................................................69

No Federalism General........................................................70

No Federalism General .............................................................................................................70

No Federalism General........................................................71

No Federalism General .............................................................................................................71

AT: Slippery Slope Links.......................................................72

AT: Slippery Slope Links ............................................................................................................72

AT: Energy Policy Links.............................................. .........73

AT: Energy Policy Links .............................................................................................................73

Federalism Is Not Modeled....................................................74

Federalism Is Not Modeled .........................................................................................................74

Federalism Bad Impact Ethnic Conflict..............................75


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Federalism Bad Impact Ethnic Conflict .................................................................................75

Federalism Bad Impact Secession.......................................76

Federalism Bad Impact Secession ...........................................................................................76

Federalism Bad Impact Economy.......................................77

Federalism Bad Impact Economy ...........................................................................................77

No Russian Federalism...........................................................78

No Russian Federalism ................................................................................................................78

Russia Doesnt Model US Federalism....................................80

Russia Doesnt Model US Federalism ........................................................................................80

Russian Federalism Bad Civil War......................................81

Russian Federalism Bad Civil War .........................................................................................81

Russian Federalism Bad Economy......................................82

Russian Federalism Bad Economy ..........................................................................................82 No Indonesian Federalism......................................................83

No Indonesian Federalism ...........................................................................................................83

Indonesian Federalism Bad Indonesian Economy..............84

Indonesian Federalism Bad Indonesian Economy .................................................................84

Indonesian Federalism Bad Secessionism...........................85

Indonesian Federalism Bad Secessionism ...............................................................................85


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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 actionplans is taking on added importance for another reason: Innovative state climate and energy policiesare 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 alternativesources 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-Atlanticand Northeastern states will begin implementing a cornerstone of effective national or global climatepolicy: A so-called cap-and-trade system under which emitters of greenhouse gases in this case, powerplants must begin steadily reducing carbon emissions and can sell a portion of their emissions allotmentonce they begin implementing efficiencies. Power plants that fail to meet their emissions targets could buyallotments from more efficient utilities.


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States Solve Alternative Energy

( ) States have tons of experience with alternative energy programs they can solve

Barry G. Rabe, University of Michigan, November2002, Pew Center, Greenhouse and Statehouse,http://www.pewclimate.org/docUploads/states_greenhouse.pdf

States have been formulating climate change policy for more than a decade, although their efforts haveexpanded and intensified in the past several years. In some cases, states have considered climate changemitigation explicitly while in others it has been an incidental benefit. Reflective of the vast scope of activitythat generates greenhouse gases, state policies have been enacted that reduce these emissions in suchareas as promotion of renewable energy, air pollution control, agriculture and forestry, waste

management, transportation, and energy development, among others. In almost all cases, there havebeen multiple drivers behind and multiple benefits from these state policies. In Texas, for example, thedesire for energy independence, economic development, and air pollution control drove the state to promoterenewable energy. Not all states have demonstrated interest in these initiatives and some legislatures havetaken steps to prevent state agencies from pursuing any efforts that are designed to reduce greenhouse gases.Nonetheless, there has been a remarkable increase and diversification of state policies since the late1990s, reflected in their current operation in every region of the country. Collectively, they constitute adiverse set of policy innovations rich with lessons for the next generation of American climate change

policy.

( ) State incentives programs solve they can drive the market towards widespread

alternative energy acceptance

Elizabeth Brown, PatrickQuinlan, 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 tothe needs of their residents. This report describes the current status of energy efficiency and greenbuildings tax incentives that states offer. Our goal is to assist state policymakers in designing and evaluatingtheir own programs by providing insights about current programs in other states. A properly designed statetax 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 thestates residents, businesses, and other organizations to find. By itself, the states action increases thevisibility of the technology or practice and validates it with the states credibility. Greater market sharebunches 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 thestatus quo and can increase customer satisfaction. This vestment induces more firms to enter the marketand 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 supportfrom those who profit from it. By then, a state tax credit is no longer needed and building codes and otherregulatory mechanisms can be revised to make use of the technology or practice mandatory. State-fundedenergy 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 needsencouragement 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-effectiveefficiency measures: for example. projected returns may be lower than for other, non-energy investments ortechnology deployment timeframes may be too long. Tax credits can accelerate customer acceptance andincrease 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.


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States Solve Alternative Energy

( ) State tax incentives foster alternative energy technology

Elizabeth Brown, PatrickQuinlan, 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=72603414The objectives of state-funded energy efficiency incentive programs are to foster consumer choices thatbenefit statewide energy. economic. and environmental objectives. Market barriers impede the ability ofthe private sector to provide products and services to address states energy security. system reliability.environmental, and economic goals. Tax credits can accelerate customer acceptance and enlarge themarket share for high-efficiency products and services, which leads to earlier high-volume production

and resulting cost- reductions for efficient alternatives. Once the new technologies become widely

accepted and produced on a significant sale, costs decline and the tax credits should be phased out or

updated to more advanced technology or efficiency levels.

( ) States have lots of options for renewable energy incentives

Sanya Carleyolsen, PhD candidate Public Policy @ UNC, Summer2006, Tangled in the Wires, 46 Nat.Resources J. 759, ln

State legislatures also have a variety of tax incentives at their disposal to help bring down the costs ofRE projects and make them more cost-competitive with other fuel methods. Many states have adoptedtax incentive systems that can be applied to corporate, income, property or sales taxes. n90 Suchcorporate and income tax incentives provide deductions or credits for purchased RE equipment. Forinstance, some states provide Investment Tax Credits (ITC) for either centralized or decentralized wind energy systems. n91 Propertyand business owners who invest in wind energy systems are granted ITCs equal to a [*778] percentage, as established by the statelegislature, of the amount invested in the project. n92 Some states have adopted sales tax incentives that either exempt or reduce thesales tax on RE equipment. n93 Sales tax reductions may be placed on land assets, materials or equipment, and energy transfer. Yetanother, comparatively popular, option is a property tax reduction, granted to RE facility owners. n94 Property tax incentives include

property tax and special assessment exemptions based on value-added RE additions, calculated as a percentage of the total assessedvalue of the facility. n95

( ) State governments are taking the lead on warming

Peter H. Koehn, Poly Sci Prof @ Montana, 2008, Global Environmental Politics 8.1, Underneath Kyoto, museScholars and the media have emphasized the US national government's failure to adopt international agreements and stringent forward-

looking national policy and legislation in the face of climatic destabilization. While domestic and international critics have focused on

national government inaction, direct and indirectstate and local governments efforts to mitigate GHG emissionshave intensified and expanded. By 2007, more than 20 states had adopted legislation or issuedexecutive orders "expressly intended to reduce greenhouse gases."55 California (a state that produced roughly two

percent of the world's annual GHG emissions) and New Jersey have been in the forefront of these initiatives. In June 2005, CaliforniaGovernor Arnold Schwarzenegger issued an executive order calling for the state to reduce its GHG emissions to 1990 levels by 2020.56Denver stands out as a city government that has explicitly integrated emissions-mitigation considerations into its core policies andorganizational structure.57 In 2006, voters in Boulder, Colorado, approved a carbon tax based on kilowatt hours that will generaterevenue for a climate-action plan aimed at reducing the city's carbon emissions by 24 percent from current levels.58 Such

subnational policy prescriptions serve to promote public awareness that climatic change is a serious

problemand that unsustainable organizational and personal consumption exacerbates the problem. However, durable state/localpolicy and population behavioral changes that limit or reduce GHG emissions remain the exception rather than the rule in the UnitedStates (and China) because the benefits of global climatic stabilization are not immediately discerned or appreciated by most consumersand policy makers.59 In some policy-making situations, visible emphasis on GHG-emission reductions alone would becounterproductive. For instance, one of the strongest supporters of the Texas effort to require utilities to provide renewable-power

sources as part of their total [End Page 61] electricity package reported that "if we had characterized this as something to do withgreenhouse gases, it would have hurt the bill's chances. So we didn't."60


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States Solve Cap And Trade

( ) States can solve cap and trade theyre already setting it up

Robert K. Huffman, lawyer, and Jonathan M. Weisgall, VP at MidAmerican Holdings,Winter2008, ClimateChange and the States, Sustainable Development Journal,http://www.wcl.american.edu/org/sustainabledevelopment/2008/winter08.pdf?rd=1

Although the United States is not a signatory to the Kyoto Protocol, there are several efforts underway toestablish state- or regional-level trading systems. These follow not only the model ofthe EU-ETS, butalso othersuccessful domestic cap-and-trade programs administered by the EPA, including the Acid RainProgram.23 California is in the process of establishing its own capand- trade program. In September 2006,California adopted the Global Warming Solutions Act, also known as A.B. 32.24 This law, in part, allows the state to establish a cap-and-trade program to help meet the goal of capping the states emissions at 1990 levels by 2020 and eventually reaching eighty percent

below 1990 levels by 2050.25 The program would be administered by the California Air Resources Board (CARB), which is in theprocess of adopting a scoping plan to identify Californias primary strategies for reducing GHG emissions under A.B. 32. The goalwould be to have the cap-and-trade program operating by January 1, 2012.26 Governor Arnold Schwarzenegger has openly expressed aninterest in linking any cap-and-trade program, once it is open for business, with the EU-ETS market.27 In addition to Californias

intrastate efforts,three interstate groups are currently in the process of establishing carbon markets. Oneproject, known as the Regional Greenhouse Gas Initiative (RGGI),28 was initially formed in 2003 and is now made up of ten states inthe Northeast and Mid-Atlantic: Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, New Jersey,Delaware, and Maryland. In addition, several eastern Canadian provinces have expressed interest in joining RGGI. The consortiumadministering RGGI has published model rules for each of the states to adopt, and all ten states are in the process of adopting them in

statutory or regulatory form. The goal is to have the market operating by January 2009. At this point, it appears likely that the marketwill be ready to open at that time, although all ten states may not be participating at the outset, as a few may have outstanding issues toresolve in the early stages of the program. The second multi-state group, known as the Western Climate Initiative (WCI), consists ofseven Western states and two Canadian provinces: Arizona, California, Montana, New Mexico, Oregon, Utah, Washington, BritishColumbia, and Manitoba. The WCI was established in February 2007, and as a result is not as far along in the process as RGGI. WCI iscurrently in the design phase, having completed basic design principles and established a year-long work-plan.29 Its goal is to have thedesign of the market-based mechanism completed in August 2008. Based on this timeline, it is unlikely that the WCI will be able toestablish a functioning market before 2011 or 2012. A third group, consisting of nine Midwestern states and the Canadian province ofManitoba, signed the Midwestern Regional Greenhouse Gas Reduction Accord in November of 2007, which is designed to establishgreenhouse gas reduction targets, a regional cap-and-trade protocol, and a regional system to track and manage greenhouse gasemissions.30

States 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 thePew Center, TOWARD A CONSTRUCTIVE DIALOGUE ON FEDERAL AND STATE ROLES IN U.S.

CLIMATE CHANGE POLICY, rks, http://www.pewclimate.org/docUploads/StateFedRoles.pdfAlthough a state cannot directly impede the workings of the ARP cap-and-trade program, the Clean Air Actdoes allow a state to impose more stringent requirements on the plants subject to the ARP program. Astate 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 ofNew York chose to implement anaggressive statewide cap-and-trade program to reduce sulfur dioxide emissions from power plants in

the statefrom 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 thePew 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 keybenefits: there would be clear national reduction targets and all states would have to contribute their share tothe effort. Beyond these benefits, all 50 states would be allowed to experiment with individual stateapproaches 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.


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States Solve Environment

( ) Decentralization is net better for the environment enhances effectiveness,

experimentation, and studies prove states will effectively fill-in

Jonathan H. Adler, Assoc. Law Prof @ Case Western, Jan. 2005, Judicial Federalism, 90 Iowa L. Rev. 377, ln

Decentralized approaches to environmental protection have many potential advantages over centralizedregulatory regimes. Decentralization can enhance the efficiency and effectiveness of environmentalcontrols. 582 No less important, decentralization can allow for experimentation with alternativeapproaches to environmental protection with which there is relatively little practical experience. 583 "Bydecentralizing environmental decision making, we may be able to obtain improved responsiveness tochanging circumstances and new information," notes Professor Farber. 584 There is no reason, a priori, toview the decentralization of environmental protection as a threat to environmental protection, as opposedto a way of making it "more effective." 585 The potential environmental benefits of decentralization arenot merely theoretical. The history and current practice of state and local environmental protectionprovide ample reason to question the assumption that lessening federal environmental regulatory authoritynecessarily results in [*465] lessened environmental protection. While the federal government is the mostconspicuous actor on the environmental stage, state and local governments are the avant garde, developinginnovative efforts to enhance the ecological and economic performance ofenvironmental protection. 586From brownfield redevelopment plans and audit privilege rules to property-based water management and

unified, multimedia permitting systems, states are trying to find ways of maximizing the return oninvestments in environmental policy. 587 The conventional wisdom holds that federal environmentalregulation was necessary because states failed to adopt adequate environmental measures. This view ignoresthe substantial environmental progress in many areas due to state and local efforts adopted prior to theenactment of most major federal environmental laws. 588 The EPA's first national water quality inventory,conducted just one year after adoption of the Clean Water Act ("CWA"), found that there had been substantialimprovement in water quality in major waterways over the preceding decade. 589 While water qualityproblems persisted, the evidence suggests that states began addressing those water quality problems thatwere clearly identified and understood well before the federal government. Several studies of air pollutionsimilarly find evidence of significant environmental improvement prior to the adoption of federalenvironmental regulation. Historically, the first municipal smoke ordinances were adopted in the latenineteenth century, and the number of cities with effective local controls increased dramatically in the post-World War II period. 590 In a comprehensive study of air pollution trends, Indur Goklany documents that

levels of key pollutants were in decline prior to adoption of the 1970 Clean [*466] Air Act Amendments.591 More significantly, the rate of improvement for some pollutants was greater prior to the adoption offederal controls than after. 592 A study by Paul Portney of Resources for the Future also found that "at leastsome measures of air quality were improving at an impressive rate before 1970." 593 Research by RobertCrandall of the Brookings Institution similarly concluded that pre-federal air pollution control efforts weremore successful than is typically assumed: "Pollution reduction was more effective in the 1960s, before therewas a serious federal policy dealing with stationary sources, than since the 1970 Clean Air ActAmendments." 594 These studies suggest that state and local governments had the ability and motivation toaddress identified environmental concerns, such as air pollution. 595 As with water pollution, once a givenair pollution problem was clearly identified and understood, state and local governments began enactingmeasures to address these concerns before the federal government got into the act. Indeed, in somecases the early state efforts became the model for subsequent federal measures. In others, federalregulations were adopted, with the support of industry, to preempt more stringent or less uniform state

regulatory standards. 596 While it is common to suggest that federal intervention was necessary because stateand local efforts "failed" to protect environmental quality, the historical record is more ambiguous. Prior tothe 1970s, the federal government failed to fulfill many of its preexisting environmental obligations. Yet, asdiscussed above, some state and local governments were beginning to make substantial progress inaddressing local environmental concerns. 597


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States Solve International Modeling

( ) States solve international modeling and perception arguments theyre perceived just

as much, even if its not national action


Brothers Fund and administrator of SolveClimate.com, Yale Environment 360, 6-3-2008,http://e360.yale.edu/content/feature.msp?id=2015Individually, the size of many of these state economies rivals those of most countries. State climatepolicy initiatives though not yet implemented on a national scale are collectively among the mostadvanced anywhere in the world. They provide a profound but largely unrecognized platform for

national action, and for a potential reassertion of global environmental leadership by the United States.Indeed, state climate initiatives have provided hope to those in the global community who have waitedpatiently for the United States to engage meaningfully in international climate efforts.


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States Federal Modeling( ) States are empirically modeled by the federal government on environmental policies

and new policies will provide experience for the feds


Brothers Fund and administrator of SolveClimate.com, Yale Environment 360, 6-3-2008,http://e360.yale.edu/content/feature.msp?id=2015

The states record of fostering groundbreaking environmental policies that ultimately evolve into

national law is well established. State innovation was, for example, at the heart of the battle against acidrain. State laws served as models for the federal Clean Air Act, Clean Water Act, and legislation

creating Superfund sites. In addition to the cap-and-trade program that will be launched in September bythe ten Eastern states in the Regional Greenhouse Gas Initiative (RGGI), two otherregional groupings ofstates are working to establish carbon trading the Western Climate Initiative and the Midwestern GovernorsAssociation. They have rolled up their sleeves, convened key stakeholders, and are hammering out the actual details of how to establish

and implement an effective cap-and-trade mechanism. This is wisdom that would go a long way in Washington aslawmakers debate Lieberman-Warner, which would create a national cap-and-trade program. One important element of the debate onCapitol Hill concerns the formula for allocating or auctioning carbon credits, and a number of states have developed valuable expertiseon this issue. A RGGI expert working group, for instance, conducted an in-depth analysis on the subject, and many states have alreadymade the crucial choice to auction 100% of carbon credits under RGGI trading. Under this system, northeastern utilities would purchasecredits, or allowances, permitting them to emit CO2 at current levels, with requirements for steady reductions. As the utilities lower CO2emissions, they can sell the credits to utilities that have made slower cutbacks. The RGGI auction proceeds would be used to helpvulnerable citizens defray higher energy costs, to support energy efficiency programs, and to invest in renewable energy projects all

preferable to offering free emission allocations to major polluters. As it now stands, Lieberman-Warner calls for doling out a significant

percentage of free emissions permits to major emitters of greenhouse gases. Butthe states have far more to offer. They alsohave approved a host of energy-efficiency measures affecting all sectors of the economy. For example, one set of policies provides bothemissions reductions and substantial economic savings from the building sector through improved building codes, insulation andweatherization programs, and lighting retrofits. From the waste management sector, waste reduction and recycling programs yieldsimilar two-pronged benefits. These policies go hand-in-hand with others mandating that an increasing percentage of a states energy

come from renewable sources, such as solar and wind power. Many states chief among them California haveshown similarnational leadership by significantly toughening auto emissions standards, leading Congressto increase national vehicle standards last December and the Environmental Protection Agency (EPA) tochallenge the states in court.

( ) States are best at implementing alternative energy theyve done hundreds of projects

and spillover to the federal government in the long runRusty 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 havestepped in to fill the void. Indeed, states collectively have implemented hundreds of policies to promotethe adoption of renewable energy, for reasons ranging from energy diversification, to economicdevelopment, to air-quality improvement. It is important to recognize that some ofthese policies couldbecome part of the long-standing tradition in American governance whereby states serve as

laboratories for subsequent federal policy.10

( ) State programs spill over to federal action provide a template


Brothers Fund and administrator of SolveClimate.com, Yale Environment 360, 6-3-2008,http://e360.yale.edu/content/feature.msp?id=2015The federal government in the Bush era has done little to tackle our most pressing environmental problem climate change. Yet there is one bright side amid Washingtons inaction: Many states have been steppinginto the void and adopting comprehensive climate change policies that can be a model for the comingfederal legislation to slow global warming. The leadership of states such as California, Arizona,Connecticut, New Jersey, and Florida is crucial not only because it provides a template for federal climatelegislation that will no doubt be adopted under the next presidential administration. State action is alsovital because among the top 75 emitters of greenhouse gases worldwide, half are U.S. states.


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States Federal Modeling( ) The federal government models state programs on the environment

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#PaperDownloadThis article identifies the key state/federal issues that should be addressed in any comprehensive nationalclimate change legislation. It also provides recommendations for resolving these issues. The premise is thatwe cannot hope to successfully address climate change without fully engaging states and their localgovernments 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 hadfailed to do the job, but left a significant role for states both in implementing the federal model andcontinuing to act. As a result, state environmental protection and natural resource agencies have becomelarger, better funded, more professionally staffed, and more effective than they were in 1970. And on climatechange, 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.

( ) States solve federal and international modeling California proves

Daniel B. Wood and Alison Tully, CSM, 11-7-2007, Progress in California, CSM, lnThe California initiative has also created international ripples. On Oct. 29, California, New York, NewZealand, Norway, and several European countries and Canadian provinces formed an InternationalCarbon Action Partnership to create a global cap-and-trade carbon market to build demand for low-carbon services and products. In September, GovernorSchwarzenegger joined more than 80 leaders at aUnited Nations summit on climate change, leading some to speculate that individual US states will

ultimately push the federal government into taking a firmer stand against global warming. "Thegovernor plays a great role by being a cheerleader for global warming," says Jim Metropulos of theSierra Club. "He's a Republican in the biggest state, and to say that ... we are going to do what we need to doto get these goals met has a big impact."

( ) State initiatives spillover to other states and the federal governmentBarry G. Rabe, University of Michigan, November2002, Pew Center, Greenhouse and Statehouse,http://www.pewclimate.org/docUploads/states_greenhouse.pdf

When viewed as a collection of efforts, these initiatives outline possible elements of a long-term climatechange strategy for the United States. Diffusion of innovation from one state to others is alreadyoccurring and clusters of contiguous states are beginning to consider cooperative efforts. Some of these

policies may also serve as models that warrant emulation by the federal government in developing a

more comprehensive strategy for the nation. This is entirely consistent with the long-standing traditionin American governance whereby states serve as laboratories for subsequent federal policy. In turn, the

vigorous and creative nature of state innovation in this area suggests that any future federal policy

initiatives on global climate change consider carefully the significant roles that state governments may

be able to play in achieving long-term reduction of greenhouse gases.


14/85


AT: States Dont Have Money

( ) States can afford to do renewable energy they generate money through a public-

benefit fund

Rusty Haynes, Policy Analyst @ NC State, 2005, Systematic Support, DSIRE,

http://www.dsireusa.org/documents/PolicyPublications/Haynes_KIER_Keynote.pdfThe U.S. government has shown relatively little support for the development of renewable energy.Fortunately, some U.S. states have acted to steer the country toward a cleaner, sustainable energyfuture. In terms of designing a financial-incentive program for renewables based on U.S. state governmentsexperiences, this paper has already outlined several best practices and recommendations. (See Section 4.)The establishment of a PBF by 15 states has provided substantial, continued funding to support many

of the countrys most generous financial incentivesincluding rebates, grants, production incentives

and low-interest loansthat support the development of renewable energy. These policies have had a

significant impact on the renewable-energy industry, particularly in California, New York and NewJersey.

( ) 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.

sciencedirectThe system benefit charge is a tax or surcharge mechanism for collecting funds from electricconsumers which can then support a range of activities.2 In order to support demand-side managementor renewable resources, funds are collected through a nonbypassable system benfits charge to users ofelectric distribution services. The money raised from the system benefit charge is then used to buydown 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 certaincosts fromall retailelectricitycustomers. More than a dozen states have established renewable energysubsidy 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 stateswith renewable energy funds.4 More than half the amount collected at least $135 million per year comesfrom just California.5 The funding levels range from $0.07/MWh in Wisconsin up to almost $0.6/ MWh inMassachusetts.6 The funds are disbursed as either investments, grants, other subsidies, or R&D grantsby 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, October2000, ElectricityJournal, Public Benefit Funds, p. sciencedirect

The principal public policy lesson learned thus far is that it is indeed possible to establish a statewide orregional 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 singlecorrect approach for the design of such a system. Some states are having success with utility-administeredprograms (e.g., Massachusetts and California), while others are succeeding with programs administered bystate agencies (e.g., New York) or an independent entity (e.g., the Northwest). Likewise, most states arecoordinating 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 overallpolicy 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.


15/85


AT: States Race To Bottom

( ) States dont race to the bottom on the environment no evidence supports their

arguments

Jonathan H. Adler, Law Prof @ Case Western, 2007, 31 Harv. Envtl. L. Rev. 67, When is Two A Crowd, ln

State regulatory choices are also influenced by the actions of other states. The "race to the bottom" theoryposits that states will be discouraged from adopting the optimal level of environmental protections due tointerjurisdictional competition with other states. n46 The theory asserts that states seeking to encourage economic investment and industrial development will be locked into a "race"to lower existing environmental standards (or fail to adopt optimal measures) in an effort to attract investment. Furthermore, the theory states that any resulting economic gains will

fail to offset the welfare losses from suboptimally lax environmental regulations. n47 Though possible,empirical evidence demonstrating a race to

the bottom in environmental policy is generally lacking. n48 There is evidence that state policy-makers consider the impact ofenvironmental regulations on their states' economic competitiveness. n49 Nonetheless, mostempirical studies have failed to find any evidencethat such pressures result in a systematic lowering of state-level environmental measures . n50

( ) States spillover to greater environmental protection, not race to the bottom

Jonathan H. Adler, Law Prof @ Case Western, 2007, 31 Harv. Envtl. L. Rev. 67, When is Two A Crowd, lnStates can also be encouraged to adopt greater levels of environmental protection by the actions oftheir neighbors. Insofar as one state is successful at addressing a given environmental problem in a

cost-effective manner, other states become more likely to follow suit as they learn from competing

jurisdictions. This hypothesis has some empirical support in studies showing that state decisions toadopt specific regulatory measures are influenced by the decision of neighboring jurisdictions to adopt

similar measures. n52 These studies find stronger evidence for this positive "contagion" effect than fora negative "race to the bottom." n53

( ) States dont race to the bottom their argument is theoretically and empirically

bankrupt. Firms base siting decisions on other factors, federal standards dont 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, lnA common concern voiced in environmental policy debates isthat lessening federal authority will lead toenvironmentally harmful interjurisdictional competition. Specifically, the lack of federal regulation will set off a "race to thebottom" in which state jurisdictions compete for corporate investment and economic development by reducing [*467] environmental safeguards. 598 The theory is based uponthe 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

underpinning" of federal environmental regulation 600 and has been relied upon by courts to uphold federal environmental statutes against constitutional challenges. 601 Yetonboth theoretical and empirical grounds, concerns about an environmental race to the bottom seemoverstated. Professor Revesz has demonstrated that the framework underlying the race to the bottomtheory has several analytical failings. 602 Firms base siting and relocation decisions on a wide range ofcriteria, of which environmental regulation is only one, and there is ample evidence that other factorstypically play a greater role in such decisions. 603 Tax rates, infrastructure, availability, cost, skill of local labor, and other regulatory policies are also importantconsiderations 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

of minimumfederal environmental standards to prevent a race to the bottom in environmental policy would noteliminate 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 produceoverregulation. 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 butsuperoptimal 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 attractiveinvestment climate in order to better compete economically. Insofar as environmental regulations impose significant economic burdens on existing and prospective economic actors ina 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 officialsacknowledge 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 tofurther 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, itshould be possible for many jurisdictions to reduce the economic cost associated with environmental measures without sacrificing environmental quality. 610 In addition, it is

important to recognize that manystates compete for citizens by seeking to improve their environmental performance .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, therace to the bottom has not been observed in environmental policy . 612 As already noted, state and local governments oftenregulated 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 beensuboptimal when compared to the federal alternative or some theoretical ideal - they demonstrate that competitive pressures do not preclude effective state regulation. Moresignificantly, 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 theorywould predict.


16/85


AT: Federal Preemption

( ) State alternative energy programs wont be struck down they have to be found

discriminatory

Steven Ferrey, Law Prof @ Suffolk, March 2006, Electricity Journal, 19.2, Renewable Orphans, p.

sciencedirectBecause there is no clear bright line separating regulation that does and does not discriminate, and thejudicial test and standard applied by the court is so distinct between the two, the critical determination isthe courts initial conclusion as to whether or not a regulation is discriminatory , and if so, whether suchdiscrimination is based on point-of-origin regulation.25 Even in the absence of a discriminatory intent,courts are able to outlaw Commerce Clause violations to prevent the Balkanization of various statesregulations. 26 S o, what is legal? A renewable portfolio standard alone does not raise commerce clauseissues. A limitation on the in-state location of resources for inclusion in the portfolio could run afoul of thecommerce clause.27 As long as the state regulation does not discriminate on the basis of geography ofenergy supply, it will be evaluated under the Pike balancing test. Incidental discrimination, in fact,

against interstate commerce is not impermissible if balanced by a compelling state interest and if

accomplished in the minimally intrusive fashion.

( ) Congress wont rollback state action

JackGoldsmith, Prof @ Chicago, November1997, Virg. L. Rev., lnThe rise in subnational foreign relations activity tells us little, of course, about the activity's normativedesirability. But we should also avoid the automatic assumption that this development is normativelyundesirable. This is especially true because the federal political branches have made clear that, in contrastto traditional foreign relations activities which largely have been federalized through statute and treaty, theydo not always, or even usually, prefer federal regulation of these new foreign relations issues. The recentincrease in state and local involvement in such issues "has occasioned little reaction from Congress orthe Executive." 232 And when the political branches do react, they often choose to protect stateinterests over foreign relations interests when the two appear to clash. A good example is the United States'recent ratification of a variety of international human rights treaties. 233 These treaties create numerouspotential [*1675] conflicts with state law. 234 In the face of international pressure, the President andSenate have consistently attached reservations, understandings, and declarations to these treaties toensure that they do not preempt or affect inconsistent state law. 235 Similarly, California's worldwideunitary tax on multinational corporations has provoked enormous diplomatic controversy with our closesttrading partners since the 1980s. 236 The President negotiated a treaty that would have preempted this law,but the Senate withheld its consent. 237 And in the face of substantial pressure from foreign governments,Congress consistently failed to enact legislation preempting the unitary tax. 238

( ) Preemption doesnt take out solvency

JackGoldsmith, Prof @ Chicago, November1997, Virg. L. Rev., lnEven when the political branches enact preemptive federal foreign relations law, they often do so in amanner that reflects the interests of the states and minimizes intrusion on their prerogatives. WhenCongress codified the international law standards for determinations of foreign sovereign immunity, itensured that otherwise-applicable state law would continue to govern the merits of such suits. 239 Similarly,in federal implementing legislation for the Uruguay Round of the General Agreement on Tariffs and Trade

("GATT"), "political sensitiv- [*1676] ity to state sensibilities were [sic] reflected in several ways." 240Most significantly, the legislation "precluded the agreements from having any direct effect, and indeedrequired an action by the United States Government for the purpose of striking down a state law." 241 Inaddition, the federal government has actively cooperated with and supported the unilateral stateeconomic activities described above. 242 The overtly political international activities of states, such asnuclear-free ordinances and state divestment movements, are more controversial. For example, Congress bystatute overruled several governors' resistance to allowing the participation of national guard troops inCentral American military activities in the mid-1980s. 243 But Congress declined to preempt the mostnotorious recent state foreign relations activity - state sanctions against South Africa - when it enacted theAnti-Apartheid Act of 1986, 244 and Massachusetts's recent sanctions against Myanmar 245 soon led tosimilar sanctions by the federal government. 246


17/85


AT: Perm

( ) The perm would force preemption its impossible for the plan and CP to exist

Robert K. Huffman, lawyer, and Jonathan M. Weisgall, VP at MidAmerican Holdings,Winter2008, ClimateChange 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 anationwide price for carbon would likely be interpreted as directly conflicting with state programs; inthe alternative, courts would probably hold that federal efforts occupy the field of GHG regulation. Butlacking 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 areadvocating for express preemption in any future comprehensive cap-and-trade bill. The Dingell-Boucherwhite paper,68 which discusses the role of federal, state, and local governments in efforts to reduce GHGemissions, makes the case for express preemption. [O]nce a national, economy-wide cap-and-tradeprogram 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 veryclear 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 andstate/regional regulation.71 While the current version of the Lieberman-Warner bill actually encourages andprovides incentives for states to take actions above and beyond the federal cap-and-trade program,72 there isa possibility that an express preemption clause could be part of any final bill.


18/85


California Economy Alt-Causes

Californias economy is super weak all indicators prove

Dan Walters, a journalist for more than 40 years, spending all but a few of those years working for California

newspapers. At one point in his career, at age 22, he was the nation's youngest daily newspaper editor, 6-25-08,

SacBee, Dan Walters: Could California budget gap get wider?, rks,http://www.sacbee.com/111/story/1037445.html

"Overall, California's economy looks pretty weak," the UC Santa Barbara survey declares. "Much ofthe state is losing jobs. The real estate market is in meltdown. Retail sales are collapsing. Tourism has

been surprisingly weak. The public sector will decline. The state has no budget, and policy makers

have no idea how to create one. We see little reason to be optimistic about California's economy."

Watkins noted that the state is seeing "almost zero" job growth even though the pool of job-seekers hasexpanded sharply, in part, he believes, because stressed-out families seek more income to offset risinghousing, fuel and food costs. The housing meltdown is having both direct negative impacts fewerconstruction jobs, declining purchases of building materials, furniture, and so on and indirect ones. EvenCalifornians whose incomes have remained steady must face rising prices and, if they're homeowners, areseeing personal wealth in the form of home equity decline, so are cutting consumer purchases. Theeconomic malaise affects income, sales and property taxes the latter because of construction

slowdowns and declines in taxable values due to market declines and thus exacerbates the budget

deficit.

Californias Economy is horrible; theres 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 Schwarzeneggeron 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 hostof NBC's "Meet the Press" that if he ran a private company the way he has run the state, he might havebeen fired by now. TomBrokaw, who will be moderating the program through the presidential election, puta series of confrontational questions to the governor in an interview taped in California and aired thismorning. 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 herein California. Unemployment is running at about 6.8%; you've got the worst housing crisis since theGreat Depression. If you were the CEO of a public company, the board would probably say, 'It is time

to go.' "


19/85


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 wont be rolled

back

Mark A. Miller, Lawyer @ Baker Botts, 1998, Cleveland State L. Rev., lnThe history of the Tenth Amendment is an appropriate starting point in the development of substantivefederalism. For a long period of time, the Tenth Amendment operated as nothing more than a plain statementof the obvious that afforded little protection to the states. 249 In the aftermath of Garcia, state sovereigntywas left to the political processes. 250 Tenth Amendment power was reborn in New York v. United Stateswhen the Court held that Congress could not commandeer the states' legislative function. 251 Thisprotection is decreed no matter how strong the federal interest in the legislation may be . 252 Protectionsover 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 federalregulatory programs regardless of the federal interest involved. 254 Whenever the structural framework ofdual 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 ofaction that it could not undertake directly. 256 But what happens if Congress breaches the Tenth Amendmentthrough an Article I power like the Spending Clause? Do the Court's enunciated protections extend to ArticleI? 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 affirmativelylimited [*191] by state autonomy. 257 The door was further opened in New York when the plenary nature ofthe 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 goingso far as to approach a "police power of the sort retained by the States." 259 The Commerce Clause, in otherwords, 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 EleventhAmendment -- a core guardian of state sovereign interests 261 -- withstands any attempt by Congressto pierce the shield of federalism with Article I. 262 Similar to the Tenth Amendment, the EleventhAmendment once provided little protection to the states when Congress flexed its Article I muscle. 263 Alongwith the strengthening of the Eleventh Amendment, New York and Printz add to the growth of federalismand the devolution of unrestricted congressional power. The same 5-4 majority 264 has written theopinions in New York, Lopez, Seminole Tribe, and Printz, and it is only a matter of time before the rationalein Seminole Tribe is extended to the Tenth Amendment as a limit on the Spending Clause. 265 Substantivefederalism presents the argument that the Tenth Amendment will be used in much the same manner as theEleventh Amendment was used in Seminole Tribe. If a core principle of state sovereignty will be encroachedupon 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 uponprinciples of federalism. If substantive federalism can operate to block congressional action under the

Commerce Clause, then it can also curtail the Spending power. 267


20/85


Lopez Federalism Net-Benefit 1NC

( ) Extending Lopez by devolving power to the states sends a strong signal encouraging

federalism worldwide this solves global war and promotes economic growth

Steven G. Calabresi, Associate Professor, Northwestern University School of Law. A Government of Limited

and Enumerated Powers, Michigan Law Review December, 1995The prevailing wisdom is that the Supreme Court should abstain from enforcing constitutional limits onfederal power for reasons of judicial competence and because the Court should spend essentially all itspolitical capital enforcing the Fourteenth Amendment against the states instead. This view is wrong. First, therules of constitutional federalism should be enforced because federalism is a good thing, and it is the bestand most important structural feature of the U.S. Constitution. Second, the political branches cannot berelied upon to enforce constitutional federalism, notwithstanding the contrary writings of Professor JesseChoper. Third, the Supreme Court is institutionally competent to enforce constitutional federalism. Fourth,the Court is at least as qualified to act in this area as it is in the Fourteenth Amendment area. And, fifth, thedoctrine ofstare [*831] decisis does not pose a barrier to the creation of any new, prospectivelyapplicable Commerce Clause case law. The conventional wisdom is that Lopez is nothing more than aflash in the pan. 232 Elite opinion holds that the future of American constitutional law will involve thecontinuing elaboration of the Court's national codes on matters like abortion regulation, pornography, ruleson holiday displays, and rules on how the states should conduct their own criminal investigations and trials.Public choice theory suggests many reasons why it is likely that the Court will continue to pick on the statesand give Congress a free ride. But, it would be a very good thing for this country if the Court decided tosurprise us and continued on its way down the Lopez path. Those of us who comment on the Court'swork, whether in the law reviews or in the newspapers, should encourage the Court to follow the path onwhich it has now embarked. The country and the world would be a better place if it did. We have seen that adesire for both international and devolutionary federalism has swept across the world in recent years.

To a significant extent, this is due to global fascination with and emulation of our own American

federalism success story. The global trend toward federalism is an enormously positive development

that greatly increases the likelihood of future peace, free trade, economic growth, respect for social and

cultural diversity, and protection of individual human rights. It depends for its success on the

willingness of sovereign nations to strike federalism deals in the belief that those deals will be kept. 233The U.S. Supreme Court can do its part to encourage the future striking of such deals by enforcing

vigorously our own American federalism deal. Lopez could be a first step in that process , if only the

Justices and the legal academy would wake up to the importance of what is at stake.


21/85


Ext Court Can Devolve

( ) Supreme Court can devolve authority to the states

David M. Sprick, Doctoral Candidate & Lecturer in the Department of Political Science @ UMKC, 1999, 27Cap. U.L. Rev. 529, ln

Federalism is a constitutional principle involving a distinctive territorial division of powers, usually aspecial approach to representation within the national government, and mechanisms both legal and political[*530] to settle interlevel disputes. 3 Others have described federalism as that which as a matter of lawcenters on the division of authority between the federal and the state governments, 4 or as the dispersion ofpolitical power, 5 or a system of authority constitutionally apportioned between central and regionalgovernments. 6 The Constitution sets forth the boundaries of federalism with the enumeration of Congresspowers in Article I, Section 8; the undefined powers implied by the Necessary and Proper Clause; 7 theGeneral Welfare Clause; 8 the Supremacy Clause; 9 and the Tenth Amendments reservation of powers to thestates or to the people. 10 By defining to whom powers not delegated are reserved, the Tenth Amendmentprovides an express federalism marker and interrelates the amendment with constitutional and

political federalism. 11 The Tenth Amendment states, The powers not delegated to the United States by theConstitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. 12This amendment has been the rallying cry for devolutionists in the political branches concerned with

excessive federal power. Moreover, the Tenth Amendments reemergence in constitutional decisions has

not gone unnoticed by Supreme Court watchers. The Court seems to be reestablishing itself as theumpire of federalism, 13 a role it all but abdicated in Garcia v. San Antonio Metropolitan TransitAuthority 14 when it told the states they could find better constitutional protection from the proceduralsafeguards inherent in the structure of the federal system. 15 [*531] In a series of recent cases-U.S. TermLimits, Inc. v. Thornton, 16 United States v. Lopez, 17 and Printz v. United States 18 -the Court reversed itsthinking in Garcia and is umpiring the federal system once again. More importantly, the Court appears tobe divided over both the meaning of the Tenth Amendment and the first principles of American federalism.The Justices opposing. asymmetrical positions [on federal power] can be discerned by juxtaposing TermLimits with United States v. Lopez. 19 It is possible to add the recent Printz decision to such an analysisbecause the same factions within the Court, with respect to federalism, formed to limit federal poweronce again.


22/85


Ext Federalism NB

( ) The Lopez precedent is critical to reinvigorate federalism


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 overduerevival of the doctrine that the federal government is one of limited and enumerated powers. Afterbeing "asleep at the constitutional switch" for more than fifty years, 3 the Court's decision to invalidate anAct 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 shatteredforever 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 longas: 1) we can figure out a workable theory of the limits on the federal commerce power; 2) we can agree onthe propriety of vigorous judicial review in federalism cases; and 3) we can take proper account of theimportant reliance interests that have accrued around certain key precedents decided in the past half century.

( ) Extending the Lopez precedent restores federalism


and Enumerated Powers, Michigan Law Review December, 1995The very real danger is that the Supreme Court will end up conferring legitimacy on congressional and

presidential usurpations of state power that might be resisted more vigorously in the absence of federal

judicial review. The advantages of constitutional federalism will not be obtainable if the Court hands

down decisions like Lopez only once every ten years. National judicial umpiring of federalism

boundaries will be useful only if the courts invalidate usurpations with some frequency, thus justifying

the public confidence that the judiciary really is doing its duty in this category of cases.

( ) The counterplan is a symbolic victory for federalism

Ernest Young, Law Professor, University of Texas, TEXAS LAW REVIEW, November2004, pp. 135-6The structure of the Court's current Commerce Clause doctrine bears this conclusion out. The Court hasconceded that the national economy has become integrated to the extent that there is no meaningfuldistinction between intra-and inter-state commerce; rather, there is just "commerce." And the Court has also

eschewed any effort to compartmentalize the various forms of economic activity, as it once sought todistinguish between "commerce" and "manufacturing" or "agriculture." Now all of these things are"commerce"; that term, the Court has made clear, comprehends all "economic activity." Nonetheless, it isimportant to maintain some enforceable limit on the Commerce Clause. Precisely because these cases

are so high profile, they play an important symbolic role . As I have already suggested, they may serve animportant process function of reminding Congress to consider the limits of its powers when it acts . Atthe same time, limits on the Commerce Clause are closely linked to the states' autonomy; those limits,after all, preserve a zone of regulatory authority that Congress may not preempt. This is true eventhough the particular statutes at issue in Lopez and Morrison were not preemptive - that is, they did notforbid parallel state legislation on the same subjects. If Congress were to attempt to supplant state autonomyto make regulatory decisions over physician-assisted suicide or gay marriage, for example, Lopez andMorrison would likely offer the most promising basis for challenging such legislation.


23/85


Narrow Ruling Solvency

( ) The court can issue narrow rulings without linking to precedent disads

Stephen F. Smith, Associate Professor, University of Virginia School of Law, April 2002, Texas Law Review,Activism As Restraint: Lessons from Criminal Procedure, 80 Tex. L. Rev. 1057

The end result after decades of case-by-case refinement (and frequently revisionism) was a considerablechange in Miranda doctrine, but not a complete evisceration of Miranda. Neither Warren nor Rehnquist got tohave his first-best preference. What they did get was a second-best approach in which the suspect must begiven basic information as to his rights and has the power, by making (and sticking to) an unequivocalrequest for counsel, to stop all questioning. Of course, the police have ample latitude to use persuasion orclever, noncoercive means to cause suspects not to exercise that power and, ultimately, to make incriminatingstatements that can be used against them at trial. n213 After Dickerson, it would appear that Miranda law isfinally at an equilibrium that almost all of the Justices - including supporters and critics of Miranda - canaccept, as shown by the fact that seven of the nine Justices signed onto without comment an opinionreaffirming both Miranda and all of the limitations and exceptions adopted over the ensuing three decades.n214 This is the advantage ofreactivism - it provides an effica-cious means by which a Court thatfundamentally disagrees with earlier precedents, but is unwilling or unable to overrule them explicitly,can move the law(and, with it, actual case outcomes) back in what it believes to be the right direction.The legal system and the public thereby gain, to varying degrees, the benefits of the overruling. At the

same time, reactivism allows risk-averse Justices and the Court as an institution to avoid theunpleasant consequences of overruling that have historically made Justices so reluctant [*1112] tooverrule even the most indefensible decisions. n215 Thus, the law gets "fixed" in a way that avoids sharpdoctrinal shifts.

( ) The court can issue narrow rulings without overruling past precedent

Kenneth J. Vandevelde, Thinking Like a Lawyer, April 1, 1996, p.105Third, 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 examplecould be used to illustrate this technique as well. Assume that, in the first case, there had not been adequate assurances that the storesclaim was well founded. In that situation, the second case, rather than overruling the prior case sub silentio, might simply create anexceptionholding that, although prior notice is generally required, subsequent notice is sufficient if the court has adequate assurancesthat the stores claim to a right of seizure is well founded. Obviously, lawyers may differ at times over whether the second caserepresents 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 r

WHAM States and Federalism

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