Cong CP

1NC
The legislative branch of the United States federal government should [[plan]].

Congress solves – they have proven experience and there is latent support
now
Brandon 19 [Adam Brandon is the president of FreedomWorks. "Congress must take the
next steps on federal criminal justice reforms." https://thehill.com/opinion/criminal-
justice/423841-congress-must-take-the-next-steps-on-federal-criminal-justice-reforms]

Congress needs to keep the ball rolling and pass legislation that will
There is still much to be done.
continue to focus the criminal justice system on rehabilitation and reentry into society. These bills
should also steer the system away from abusive practices such as civil asset forfeiture and
rampant overcriminalization . In the last Congress, several bipartisan bills were introduced that would have achieved many
of these policy goals. Fortunately, reauthorization of the Juvenile Justice and Delinquency Prevention Act was signed into law the
same day as the First Step Act. This legislation ensures that we do not recklessly overexpose juveniles to the criminal justice
system, which often contributes to recidivism. The Second Chance Reauthorization Act and the Mercy Act also became law.
However, most of the other bills went untouched. Legislation like the Renew Act, the Clean Slate Act, and the Fair Chance Act
would enhance the reforms in the First Step Act by breaking down barriers to reentry, including the simple existence of a criminal
record, that still prevent rehabilitated offenders from reentry into society as productive citizens. Unfortunately, many of the
Republican champions of these meaningful reentry measures, including Trey Gowdy, Darrell Issa, and Rod Blum, are not be
returning to Congress this year. Therefore, it is critical that new members of Congress take up these torches immediately.
Furthermore, abusive practices in the criminal justice system are still prevalent, most notably the presence of civil asset forfeiture
and overcriminalization. Civil asset forfeiture is used by law enforcement to seize private property suspected of being connected to
criminal activity, under the assumption of guilty until proven innocent, which is a gross inversion of due process. To this effect,
supported legislation has been introduced to increase the evidentiary standard required to seize property. These bills include the
Due Process Act, introduced by Representative Jim Sensenbrenner, as well as the Fair Act, introduced by Representative Rep. Tim
Walberg and Senator Rand Paul. The Due Process Act has more than 20 bipartisan cosponsors in the House, while the Fair Act has
more than 50 bipartisan cosponsors in the House and at least seven cosponsors in the Senate. Similarly problematic for due
process is the “mens rea” requirement, or the lack of a guilty mind, for an overwhelming number of federal crimes. There are
somewhere between 4,500 and 5,000 federal statutes carrying criminal penalties and over 400,000 federal regulations that may be
enforced criminally. Although the issue of “mens rea” is divisive between parties, it is imperative that all sides recognize there must
be a default mens rea standard in order to obtain a conviction lest overcriminalization continue to run rampant in our system.
Legislation like the Mens Rea Reform Act would accomplish this by implementing such a standard. At the outset of the 116th
Congress, returningand new members alike should turn their attention to these important next
steps. There is still much to be done to bring the full gamut of successful state criminal justice
reforms to the federal level . Fortunately, the stage has already been set , and significant
support for further reforms is certainly there .
 2NC – Solvency Frame – Trump
Trump and the DOJ will sabotage existing reforms – Congress is key
Keller 16 [Bill Keller. NYT REporter. 12/16/16. "Bipartisanship suggests high presidential
approval, which leads to more success for the governing party in Congress and for the
president’s re-election." https://www.themarshallproject.org/2016/12/16/why-congress-may-
bring-criminal-justice-reform-back-to-life]
Given candidate Donald J. Trump’s law-and-order bluster, his dystopian portrayal of rising crime and an ostensible war
on the police, and a posse of advisers who think the main problem with incarceration is that we don’t do enough of it, the idea
that justice reformers have anything to look forward to is at best counterintuitive . This article was
published in partnership with The New York Times. It is reasonable to expect that President Trump and his choice for attorney
general, Jeff Sessions, will dismantle at least some of what their predecessors leave behind . Based on
what they have said, the Trump-Sessions Justice Department may well roll back federal oversight of troubled
police forces, escalate the war on drugs , enlarge the share of the corrections business that goes to
private companies, accelerate deportations of undocumented immigrants and use the threat of
financial sanctions to challenge so-called sanctuary cities. Some combatants in the fight for a less punitive
approach to crime will probably redirect their energies to the states and localities, where most criminal justice is dispensed and
those inclined to look for silver
where officials — in red states and blue — have proved more receptive to change. But
linings may find one on Capitol Hill . The current, expiring Congress began with a groundswell of
bipartisan support to reduce mandatory minimum sentences , give judges more discretion
to suit the punishment to the offense, invest more in alternatives such as drug and mental
health treatment, and encourage programs that prepare the incarcerated for life after prison. In
months of negotiations, a package of sweeping criminal justice reforms was whittled down and some new mandatory sentences
were grafted on. Then Senate majority leader, Mitch McConnell, declined to bring it up for a vote.
 2NC – Solvency Frame – Clog
A court ruling causes runaway litigation that clogs courts and turns case
Coan 16, [Andrew Coan is a Professor, University of Arizona, James E. Rogers College of
Law, JUDICIAL CAPACITY AND EXECUTIVE POWER,
www.virginialawreview.org/sites/virginialawreview.org/files/Coan_Online.pdf]
The judicial capacity model traces the limits of judicial capacity to the pyramid-like structure of the federal judicial system: ninety-four
district courts at the base, thirteen courts of appeals in the middle, and “one Supreme Court” at the apex.31 Having just one
court at the apex —just one court with the authority to make nationally binding decisions of federal law—creates a
bottleneck . The capacity of the single court at the top limits the capacity of the whole system
below. Though important, structure is not the whole story. Widely held judicial norms also play a crucial role. In particular, the
Court’s commitment to maintaining minimum professional standards forces the Court to spend
substantial time and effort on each case it decides. This commitment limits the Court’s capacity to
150 or 200 full-dress decisions per year. 32

Of course, the Court’s jurisdiction is largely discretionary, so it could theoretically stay within this limit simply by refusing
to review any more cases.33 But another widely held judicial norm makes that course of action unlikely—the Court’s
commitment to maintaining uniformity in the interpretation and application of federal law. This norm compels the
Court to hear enough cases to maintain uniformity and to review lower-court decisions that
threaten it.34 Of particular note, the Court feels especially compelled to review lower-court decisions invalidating a federal
law.35 These commitments—combined with the hierarchical structure of the federal judiciary—starkly limit the volume of litigation
the Court can handle. To maintain them, the Court can invite no more than 150 or 200 cases per year that must be decided in order
to preserve an acceptable degree of uniformity.

This might not seem difficult, given that the Court currently decides fewer than 100 cases per year,36 but that appearance is
deceiving. Had the Court interpreted the Commerce, Equal Protection, or Takings Clauses differently, demands
on its capacity would be vastly higher .37 Of greater relevance to this Article, the same goes for the non-
delegation doctrine and the unitary executive theory. The fact that the Court has shaped constitutional
law to avoid overwhelming its limited capacity should not be construed as evidence that this
capacity is unlimited or overabundant.

The vague nature of the ruling is offense

Coan 16, [Andrew Coan is a Professor, University of Arizona, James E. Rogers College of
Law, JUDICIAL CAPACITY AND EXECUTIVE POWER,
www.virginialawreview.org/sites/virginialawreview.org/files/Coan_Online.pdf]
Even if the categorical nature of the Myers rule could keep litigation within manageable bounds, it
would produce results many Justices would find unpalatable. Among other things, that rule would require
the Court to strip the Federal Reserve, the civil service, and the whole corps of administrative law and
immigration judges of removal protection. There is good reason to think that such extreme results
would give pause to many Justices.187 In the high-volume and high-stakes domain of
presidential administration, however, the Court cannot adopt mushy standards without inviting an
unsustainable volume of litigation . Thus, the Court is forced to choose between the unpalatable
results of a Myers-like prohibition and the large-scale sacrifice of the unitary executive entailed by the
Court’s current, nibble-around-the-edges approach. Given this choice, it is not surprising that the Court has selected the latter
course.188
 2NC – Solvency Frame – Circumvention
Courts get circumvented – states will walk the line to avoid compliance and
ramp up funding for jails, policing, prison construction, and other
alternative means of detention that turn case
Beckett 18 [Katherine Beckett Department of Law, Societies & Justice and Department of
Sociology, University of Washington, Seattle. "The Politics, Promise, and Peril of Criminal
Justice Reform in the Context of Mass Incarceration."
https://www.annualreviews.org/doi/full/10.1146/annurev-criminol-032317-092458]

Yet there are also several reasons to be skeptical that this will occur. First, as Simon (2013) acknowledges, the
State of California was technically compliant with previous court orders to address overcrowding and
unconstitutionally cruel conditions but also continued to reveal “ deliberate indifference ” to the
humanitarian needs of prisoners. Second, in the wake of Brown v. Plata, the state prison population did
shrink, but the state notably increased allocations for jail construction , and the jail
population has grown markedly (Rubin 2015). Indeed, California's incarcerated population in 2015
was only 9% smaller than in 2011; ongoing jail construction in many California counties and cities may mean that the net
decline is even smaller in the near future.14 Third, studies suggest that prison overcrowding litigation does
not reduce prison overcrowding but does increase corrections spending and incarceration
rates , presumably by serving as a catalyst for prison (or jail) construction (Guetzkow & Schoon 2015;
see also Schoenfeld 2010). Nor have the courts served as an effective vehicle for improving prison conditions in recent decades,
consistently ruling, for example, that the widespread use of solitary confinement does not violate the Eighth Amendment's
prohibition of cruel and unusual punishment (Reiter 2015).15
 2NC – Solvency – Forensic Science
Federal management of local labs is key to effective oversight
Maloney 13 [Eric Maloney, J.D. Candidate (2014), University of Minnesota Law School. "Two
More Problems and T oblems and Too Little Mone oo Little Money: Can Congr y: Can Congress
Truly Reform Forensic Science?" Minnesota Journal of Law, Science & Technology.
https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1047&context=mjlst]

These attempts at regulating state and local forensic laboratories are essential because the
“lion’s share” of criminal prosecutions44 and evidence processing45 occurs in state criminal justice
systems. However, the efficacy of this federal scheme to affect change for this fragmented
variety of forensic science providers has been questioned.46 As a general matter, predicating the
operations of state and local entities on federal funding , while upheld in South Dakota v. Dole,47 raises
significant issues of federalism and calls into question whether Congress’s spending power is a constitutionally proper mechanism
to influence state behavior.48 Ryan Goldstein, in a student note written for the University of Texas Law Review, found that the
Coverdell Program federal grants constituted a very small percentage of state and local laboratory operating budgets based on 2005
figures;49 this
disparity between federal funding and local spending has since increased , according to
the requirement that labs be subject to
more recent reports from the Bureau of Justice Statistics.50 Furthermore,
external auditing has reportedly not been enforced by the DOJ .51

Only Congress can use economic leverage to manage the patchwork of

disparate state-level forensic programs – that’s key to effective forensic
science and enforcement
Maloney 13 [Eric Maloney, J.D. Candidate (2014), University of Minnesota Law School. "Two
More Problems and T oblems and Too Little Mone oo Little Money: Can Congr y: Can Congress
Truly Reform Forensic Science?" Minnesota Journal of Law, Science & Technology.
https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1047&context=mjlst]

A key component of any effective federal legislation on this issue must include mandatory
accreditation and certification standards enforced through a federal mechanism . By only
carrying the threat of monetary sanctions if laboratories are not in compliance, current and proposed federal
regulations lack sufficient means to motivate states into compliance.168 Congress should take a
cue from its previous regulation of clinical service laboratories and apply similar measures to
forensic science providers. This is not a new idea—it was proposed as far back as 1991169—long before the most recent
lab scandals. The 1988 Clinical Laboratory Improvement Amendments (CLIA)170 ensured quality clinical laboratory testing in labs
receiving Medicare or Medicaid payments, primarily by requiring laboratory accreditation through either the government or a certified
outside agency.171 The difference between CLIA and regulations of forensic laboratories are the available sanctions: labs found in
non-compliance with CLIA may be subject to a much wider range of sanctions by the government, including suspension of
accreditation, a civil suit, imprisonment, or fines, for those found guilty of intentionally violating CLIA.172

If strong sanctions such as these were coupled with the accreditation and certification requirements already present in the Act, it
would likely increase the compliance of forensic labs. At the time of CLIA’s passage, similar legislation for forensic labs was
unworkable due to a lack of standard operating procedures and certification for forensic professionals.173 With the creation of
ASCLD/LAB accreditation and other types of standards, this is no longer the case. Guidelines exist for laboratory procedure and
proper education of forensic scientists in the Act, and sanctions would then ensure that these guidelines are followed, minimizing
strict sanctions may ultimately
both poor quality lab work and potential misconduct by bad actors. Nonetheless, these
be politically unpopular because actors in the criminal justice system are unwilling to have labs
completely shut down or have fines taken from public coffers for violations of these
regulations.174
If Congress is unable or unwilling to increase federal funding and improve enforcement of
federal regulations , the current system of a largely state-by-state approach to managing
forensic science facilities and personnel will continue. There are positives to this approach. States are better
positioned to know the workings of their specific criminal justice systems, and can create regulations tailored to the situation of
such a patchwork system encourages inconsistency
forensic laboratories in their jurisdictions.175 However,
among the states, and further fragments a forensic science field that is in need of universal
standards .176 The state-by-state system currently in place created the conditions allowing
these scandals to occur, and the federal government is better positioned to provide the
regulation and funding necessary to correct these errors and improve forensic science
throughout the nation.
 2NC – Solvency – States
Congressional leadership is modeled by the states and winners win on
reforms – single issues empower Congress more broadly
Stolz 85 [Barbara Ann Stolz. School of Justice The American University. "CONGRESS AND
CRIMINAL JUSTICE POLICY MAKING: THE IMPACT OF INTEREST GROUPS AND
SYMBOLIC POLITICS." Journal of Criminal Jusrice, Vol. 13. pp. 307-319 (1985).
https://www.sciencedirect.com/science/article/pii/0047235285900017]
Both supporters and opponents of capital punishment. when interviewed. asserted that federal capital-
punishment legislation was important because it provided a model for the states . With respect to
federal criminal justice agencies. this role of the federal government has been acknowledged by
policy makers . For example. the development of the Federal Bureau of Prisons as a model for the states was supported by
the National Advisory Commission on Criminal Justice Standards and Goals ( 1973: 606-03). and the Law Enforcement Assistance
Administration and the Office of Juvenile Justice and Delinquency Prevention were created to promote change by providing monies
for programs in states and communities, based on federal notions of good policy (Conference Report on Juvenile Justice und
Delinquency Prevention Act of IY74:2, 40- 44; Juvenile Justice and Delinquency Prevention Act of 1974: PL 93-415: Juvenile Justice
Amendments of 1977: PL 95-115: Omnibus Crime Control and Safe Streets Act of 1968: PL 90-351; Shanahand and Whisenand,
this perception of the federal government
1980:55; Gibbons et al., 1977:3). What the interviews indicated was that
as a model did not refer simply to federal agencies, but also extended to federal criminal law in
general. Such legislation was intended to demonstrate . by example. what a criminal law and penal
system should include. Since capital punishment is the most extreme form of punishment, it was perceived to be a
significant component of the model. While agreeing on the importance of federal capital..punishnielit legislation as a model.
opponents and proponents disagreed on the substantive content of that model. Supporters believed that the ultimate crime deserves
the ultimate punish- ment. The death penalty should be part of the federal system because it is an essential component of any good
penal system. In contrast, opponents felt the federal government would be setting an enlightened example by not imposing this
sanction. Both sides perceived the content and function of the model as important because the legislation was thought to exemplify
by creating the impression that Congress is attempting to deal
good criminal justice policy. Moreover.
with the problem and can demonstrate how to do so, Congress may, at least symbolically .
enhance its power position vis-a-vis the states . The need for the federal government to
generate such an impression of power may explain why some proponents interviewed
expressed concern over the failure of Congress to act on the death penalty. They suggested that inaction
created an image of the federal government as “behind” the states. Similarly. the failure of
Congress to pass criminal-code-revision legislation, when many of the states have revised their
codes, diminishes Congress’s symbolic position as a leader .”

States follow on – Florida

Paolillo & Zalewski 19 [Jacob Paolillo Spring 2019 member of the Young Leaders Program at
The Heritage Foundation Jonathan Zalewski Visiting legal fellow and Koch associate at The
Heritage Foundation. "Florida Set to Follow Congress’ Lead On Criminal Justice Reform."
https://www.heritage.org/crime-and-justice/commentary/florida-set-follow-congress-lead-
criminal-justice-reform]

Criminal justice reform in Florida is poised to follow in the footsteps of federal legislation
signed into law by President Donald Trump in December.

It’s an issue that has gained substantial traction at both the state and federal level. The Florida First
Step Act, drafted by Florida state Sen. Jeff Brandes, was passed unanimously by the Criminal Justice Committee of the Florida
Legislature on March 4, and is now pending consideration by two other committees. Brandes, a Pinellas County Republican, has
been a leader on criminal justice reform, introducing nine other bills this year focused on improving the system. But the Florida First
 Modeled after the federal First Step Act, which Congress passed in
Step Act is the most comprehensive.
late December with strong bipartisan support, the Florida bill includes only the “ best ideas ” from its
federal counterpart, he says. Among those reforms, the bill would give judges more discretion
over the sentencing of certain nonviolent drug offenders, in lieu of mandatory minimum sentences. Additionally, the bill
provides reductions of up to 60 days in the sentences of inmates who complete a Prison Entrepreneurship Program, or receive a
GED or certain vocational certifications. The bill would also create a “release orientation program” that links prisoners to community
resources upon release. If enacted, the bill would significantly reform Florida’s criminal justice system in
other ways as well.
 2NC – AT: Perm do Both
It links to the DA because it requires a controversial ruling in the middle of
a contested judicial session –

The perm links more – courts are intentionally avoiding involvement in

Congressional disputes
Carlson 19 [Kirsten Carlson Associate Professor of Law and Adjunct Associate Professor of
Political Science, Wayne State University. "Courts have avoided refereeing between Congress
and the president, but Trump may force them to wade in." https://theconversation.com/courts-
have-avoided-refereeing-between-congress-and-the-president-but-trump-may-force-them-to-
wade-in-128269]

The courts’ reluctantly started to intervene in power struggles between the president and
Congress in 1973, when President Richard Nixon asserted absolute presidential immunity – or what’s called “executive
privilege” – in response to a congressional subpoena to hand over tapes related to the Watergate
scandal. The United States Constitution divides powers among three co-equal branches: the executive, judicial and legislative.
This separation of powers is meant to ensure that no one branch gains too much power. Based on these constitutional principles,
executive privilege allows the president to withhold certain information from Congress, the courts and the public. Full transparency,
the argument goes, could endanger the nation or prevent the president from getting candid advice from his advisers. But executive
privilege often clashes with Congress’s oversight role. The Constitution gives Congress the power to review, monitor and supervise
Trump has championed a more expansive view of
implementation of public policy by the executive branch.
executive power than most other presidents. He has asserted executive privilege over a dozen
times in refusing to provide information to Congress. Trump’s attempts to limit congressional power extend
beyond executive privilege claims. He has issued executive orders in the face of congressional opposition and even sued his own
personal and business accountants to prevent them from handing his tax information over to Congress. Unlike previous presidents,
Trump is unwilling to negotiate with Congress over their requests for materials. He is determined to take his fight with Congress to
the courts.Nixon’s case United States v. Nixon is mentioned frequently now as the most relevant case in the fight between Congress
and Trump over executive privilege. But United States v. Nixon did not consider a claim of executive privilege in response to a
the
congressional subpoena. It was about a subpoena issued by a federal prosecutor in a criminal investigation. Astonishingly,
Supreme Court has yet to weigh in when a president refuses to comply with a congressional
subpoena – even though presidents since George Washington have resisted congressional
demands for information. Washington refused to give documents to Congress. Every president since Nixon
has asserted executive privilege to avoid giving various kinds of information to Congress.
Federal courts have largely stayed out of these disputes .
 2NC – Theory – Lit
Discussing the Congressional role in CJR is essential to understanding the
topic effectively – their interp skews the debate
Stolz 85 [Barbara Ann Stolz. School of Justice The American University. "CONGRESS AND
CRIMINAL JUSTICE POLICY MAKING: THE IMPACT OF INTEREST GROUPS AND
SYMBOLIC POLITICS." Journal of Criminal Jusrice, Vol. 13. pp. 307-319 (1985).
https://www.sciencedirect.com/science/article/pii/0047235285900017]
Although criminal justice administration in the United States is primarily a state and local, rather than a
federal, function, Congress does make criminal justice policy . Little attention, however, has been
paid to how it does so. This article examines congressional criminal justice policy making in the context of efforts toward
federal criminal-code revision and capital punishment. Repeatedly, Congress has tried and failed to pass legislation in these two
areas. Specifically, the article focuses on how interest groups and symbolic politics have affected these policy efforts. Such an
Based on the findings
analysis contributes to our understanding of the political realities of criminal justice policy making.
reported here, an approach to criminal justice policy making is recommended . It builds on the
disjointed incremental model found in the political science literature and may help criminal-
justice-policy advocates become more effective participants in the legislative process.
 2NC – AT: No Jurisdiction
They can use necessary and proper to encourage state activities
CRS 18 [Congressional Research Service. "What Role Might the Federal Government Play in
Law Enforcement Reform?” https://fas.org/sgp/crs/misc/IF10572.pdf]
Congress may spend for the general welfare and thereby encourage states to take or refrain from various
activities. In doing so, however, the encouraged state action must relate to the purpose for which federal funds are spent.
Moreover, state action may be encouraged, not commandeered or compelled. Commandeering and compulsion are also beyond the
scope of the Commerce Clause, which otherwise empowers Congress to regulate the flow, instrumentalities, and substantial
impacts of interstate and foreign commerce. Congress may enact model legislation for federal enclaves, but its reach there is
geographically limited. The Necessary
and Proper Clause permits implementing legislation, but only to the
extent this legislation reasonably relates to powers that the Constitution elsewhere grants to the
federal government . Finally, each of the Civil War Amendments—the Thirteenth, Fourteenth, and Fifteenth
Amendments— conveys the power to enforce its provisions by appropriate legislation , but that
power is cabined by the terms of the amendment and by judicial interpretation of its breadth.
 2NC – AT: Judicial Leadership AO
Botched modeling’s likely – undermines court legitimacy
Krotoszynski 6, [Professor of Law and Alumn i Faculty Fellow, Washington & Lee University
School of Law, "I'D LIKE TO TEACH THE WORLD TO SING (IN PERFECT HARMONY)":
INTERNATIONAL JUDICIAL DIALOGUE A ND THE MUSESREFLECTIONS ON THE PERILS
A ND THE PROMISE OF INTERNATIONAL JUDICIAL DIALOGUE,
https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1516&context=mlr]
In my view, Judges in Contemporary Democracy provides strong support for advocates of the weak form of IJD. The participants--
even from neighboring countries-knew relatively little about the membership, selection, and operation of each other's courts. The
conversations plainly enhanced mutual understanding of how foreign constitutional courts function, the role that the courts play in
domestic government, and the problems that the various courts confront in going about their job of safeguarding constitutional
values. At the same time, however, this lack
of knowledge has rather serious implications for advocates of the
strong form of IJD: how can one reliably "borrow" a precedent when one lacks even the most
rudimentary understanding of the institution that issued the opinion and the legal , social ,
and cultural constraints that provided the context for the decision? A precedent is more than
bare words on a page. A precedent is the product of a socio-legal culture: reading a text as
nothing more than a text risks grave misunderstandings that could prove embarrassing to
the borrowing court. 18

Although the problems associated with the strong form of IJD begin with the problems of understanding the context and meaning
of foreign legal precedents, they do
not end there. Even if one could "teach the world to sing in perfect
harmony" by overcoming the practical difficulties of understanding a foreign legal precedent in its
proper doctrinal, institutional, and cultural context, one would still have to deal with another
problem. Contrary to the song's suggestion, Coke is not necessarily what "the world wants today," if by
"Coke" one means a fundamental rights jurisprudence that more or less mirrors the substance of contemporary U.S. human rights
law.

No modeling – we no longer have influence, others look to avoid flaws not

imitate, citations down
Law and Versteeg 12, [David S. Law Professor of Law and Professor of Political Science.
Washington University in St. Louis. B.A., M.A., Ph.D., Stanford University; j.d.. Harvard Law
School; B.C.L. in European and Comparative Law, University of Oxford and Mila Versteeg
Associate Professor, University of Virginia School of Law. BA., LL.M.. Tilburg University; LL.M,
Harvard Law School; D.Phil., University of Oxford. 2012 “The Declining Influence of the United
States Constitution”
http://www.law.nyu.edu/ecm_dlv2/groups/public/@nyu_law_website__journals__law_review/doc
uments/documents/ecm_pro_072892.pdf]

It is widely assumed among scholars and the general public alike that the U nited S tates remains "the
hegemonic model" for constitutionalism in other countries.7 The U.S. Constitution in particular continues to
be described as "the essential prototype of a written, single-document constitution."5 There can be no denying the popularity of the
Constitution's most important innovations, such as judicial review, entrenchment against legislative change, and the very idea of written
constitutionalism.9 Today, almost 90% of all countries possess written constitutional documents backed by some kind of judicial enforcement.10 As a
result, what Alexis de Tocqueville once described as an American peculiarity is now a basic feature of almost every state.11 ¶ There are growing
suspicions, however, that America's days as a constitutional hegemon are coming to an end .12 It has
been said that the United States is losing constitutional influence because it is increasingly out of sync with an evolving global consensus on issues of
human rights.15 Indeed, to the extent that other countries still look to the U nited S tates as an example, their goal may
be less to imitate American constitutionalism than to avoid its perceived flaws and mistakes.14 Scholarly and
popular attention has focused in particular upon the influence of American constitutional jurisprudence. The reluctance of the U.S. Supreme Court to
pay "decent respect to the opinions of mankind"15 by participating in an ongoing "global judicial dialogue"16 is supposedly diminishing the global
Studies conducted by scholars in other countries have
appeal and influence of American constitutional jurisprudence.17

begun to yield empirical ev idence that citation to U.S. Supreme Court decisions by foreign courts is in fact

on the decline .15 By contrast, however, the extent to which the U.S. Constitution itself continues to influence the adoption and revision of
constitutions in other countries remains a matter of speculation and anecdotal impression.

Prefer our ev – they overlook non-Western models and single examples are
cherry-picked
Hirschl 18, [Ran Hirschl is a Professor of Political Science & Law, University of Toronto and
Alexander von Humboldt Professor of Comparative Constitutionalism, University of Göttingen.
Fellow of the Royal Society of Canada, Comparative Constitutional Law & Religion,
https://tspace.library.utoronto.ca/bitstream/1807/89369/1/Hirschl%20Judicial%20Review.pdf]
Second, the available evidence
on comparative reference refers almost exclusively to constitutional
settings in the Western, liberal-democratic world and a handful of major jurisdictions elsewhere
(Hirschl 2014a, 192–223). Patterns of comparative reference in entire regions —from sub-Saharan
Africa to Central America and Eurasia —remain largely a terra incognita ,
understudied and generally overlooked . Those regions include large and constitutionally
vibrant settings such as Indonesia (population 250 million), Brazil (200 million), Pakistan
(185 million), Nigeria (160 million), Bangladesh (155 million), the Philippines (100 million) and

Vietnam (90 million), to pick just a few glaring omissions. The unfortunate yet inevitable result is that
purportedly universal insights concerning voluntary judicial reference to foreign sources are
based, more often than not, on a handful of frequently studied and not always representative
settings or cases.
Third, there is the obvious challenge of “cherry-picking.” While increasingly common and certainly more intuitively “comparative”
than freestanding, single-country studies, the comparative
reference approach is still lacking in
methodological coherence . When executed poorly, it amounts to little more than result-oriented
“cherry-picking” of favorable cases , which is precisely the kind of practice that opponents of reference to foreign
law, most notably Justice Antonin Scalia of the US Supreme Court, base their objections on. In that respect, I concur with those who
argue (e.g., Haupt 2016) that when separated from his confrontational rhetoric, Justice Scalia’s criticism of “cherry-picking” might
compel comparative constitutional law scholars and constitutional jurists alike to think more rigorously about and pay closer attention
to questions of methodology and case selection.
Aff Answers
 2AC – Cong CP – Sentencing
Sentencing reform in courts is key – otherwise differentials in prosecutor
experience militate against defendants
Epps & Ortman 20 [DANIEL EPPS is an associate professor of law at Washington University
in St. Louis. WILLIAM ORTMAN is an assistant professor of law at Wayne State University.
"One Change That Could Make American Criminal Justice Fairer."
https://www.theatlantic.com/ideas/archive/2020/03/america-needs-defender-general/608002/]

given the one-sided, “tough on crime” attitudes

This state of affairs isn’t inherently objectionable. Indeed,
that often seem to dominate political discussions, the idea that life-tenured judges are positioned to
make fairer rules than politicians seems reasonable . The problem, though, relates to the Supreme
Court’s rule-making process.
The Court doesn’t issue decisions on important policy questions in the abstract. Instead, it decides cases—specific disputes
between individual defendants and government prosecutors. The Miranda warnings, for example, are so named because they come
This process of case-by-case adjudication favors the
from a case involving a defendant named Ernesto Miranda.
prosecution in subtle, but profound , ways.

Attorneys from the solicitor general’s office appear in most criminal cases that come up to the
Supreme Court, either as prosecutors themselves, in federal cases, or as an amicus curiae
(“friend of the court”) in support of state prosecutors. On the other side are lawyers for individual defendants.
Often this results in an experience gap between the two sides.
 2AC – Cong CP – Courts
Courts are the essential institution for managing criminal justice – they’re
the backbone of the entire system
Epps & Ortman 20 [DANIEL EPPS is an associate professor of law at Washington University
in St. Louis. WILLIAM ORTMAN is an assistant professor of law at Wayne State University.
"One Change That Could Make American Criminal Justice Fairer."
https://www.theatlantic.com/ideas/archive/2020/03/america-needs-defender-general/608002/]

no
Understanding that job, and that person’s role in shaping criminal law in this country, reveals a serious, hidden problem:
equal office exists for the country’s defendants . Over time, that imbalance has worked to undermine the
Supreme Court’s acknowledged responsibility to provide “equal justice under law.”

the Supreme Court is the most important institution —for

To see how this plays out, begin with the fact that
all practical purposes, the only institution —that regulates criminal justice for the nation as a
whole. By interpreting the Constitution, the justices set rules for criminal cases at the federal, state, and
local levels. If you’ve ever watched a cop show on TV (or, for that matter, been arrested), you’ve heard the Miranda
warnings. Those come from the Supreme Court. So do many more rules that govern police investigations,
the use of forensic evidence, punishment for crimes, and many other crucial parts of the
process that determines potentially life-changing legal consequences for millions of people each
year.

Expanding on court discretion for rulings now is key

Beckett 18 [Katherine Beckett Department of Law, Societies & Justice and Department of
Sociology, University of Washington, Seattle. "The Politics, Promise, and Peril of Criminal
Justice Reform in the Context of Mass Incarceration."
https://www.annualreviews.org/doi/full/10.1146/annurev-criminol-032317-092458]

Historically, prisoners
and advocates of criminal justice reform have often turned to the courts for
relief. Although the courts provided little recourse to prisoners seeking protection in the early and mid-twentieth
century, they did play an important role in protecting prisoners’ rights in the 1960s and 1970s.
However, the enactment of the Prison Litigation Reform Act in 1986 has severely limited the ability of prisoners and their advocates
to use the courts to address conditions of confinement or other relevant issues (Schlanger 2016).

the Supreme Court ruled in Brown v. Plata

It is in this context that recent events in California loom large. In 2011,
that overcrowded conditions in California state prisons violated the Eighth Amendment and
ordered the removal of roughly 40,000 inmates from its prisons (Simon 2014). The number of people
admitted to California state prisons dropped markedly in the wake of this ruling. And as Simon (2014)
argues, the Court's abundant references to prisoners’ right to dignity , its recognition of the affront
that California prison conditions represented to this right, and imposition of a population cap as
a means of addressing overcrowding in Brown v. Plata may mean that this ruling will serve as
the legal basis of the nationwide dismantling of mass incarceration .
 2AC – Cong CP – Partisanship
Latent partisanship and low level ideology undermines implementation –
that guts the CP
Phelps 19 [Michelle S Phelps Assistant Professor of Sociology and Law, University of
Minnesota. "Congress’s First Step Act reflects a new criminal justice consensus, but will it
reduce mass incarceration?” https://theconversation.com/congresss-first-step-act-reflects-a-
new-criminal-justice-consensus-but-will-it-reduce-mass-incarceration-109937]

Yet by December 2018, Jeff Sessions had

resigned and the federal government passed a criminal justice
reform bill, the “First Step Act.” The law reduces prison sentences, by changing the sentencing guidelines and facilitating
early release, and supports education and treatment programs in prison.

The bill was supportedby the White House , Republican and Democratic leaders, and an unlikely
set of advocates from progressive non-profits like the Brennan Center and American Civil
Liberties Union to the conservative Koch Brothers.
The following month, Trump seemingly reversed course again, appointing William Barr – another staunch supporter of the “tough on
crime” approach – to replace Sessions.

How do we make sense of these seemingly contradictory developments and alliances?

criminal justice policies and practices in the United States have often followed
I have found in my research that
complex trajectories. Reforms often receive support from unlikely coalitions . But, by focusing on
these strange bedfellows , commentators and advocates sometimes paper over the deeper
disagreements in ideas about who , how and how much to punish . Fights over these
differences ultimately shape how policies get put into practice – and whether the bill ultimately
achieves its intended outcomes .

While the
First Step Act’s passage may look like a clear victory for more moderate punishment, its
implementation and impact under the Trump administration is likely to be quite limited .
 2AC – AO – Judicial Leadership
Judicial leadership is a threat multiplier that determines the trajectory of
global peace
Breyer 15 [Stephen Breyer, born in San Francisco in 1938, is a graduate of Stanford, Oxford,
and Harvard Law School. He taught law for many years as a professor at Harvard Law School
and at the Kennedy School of Government. He has also worked as a Supreme Court law clerk
(for Justice Arthur Goldberg), a Justice Department lawyer (antitrust division), an assistant
Watergate special prosecutor, and chief counsel of the Senate Judiciary Committee. In 1980 he
was appointed to the United States Court of Appeals for the First Circuit by President Carter,
becoming chief judge in 1990. In 1994 he was appointed a Supreme Court justice by President
Clinton. "The Court and the World."]

Why is it so important that American courts meet these challenges ? As I have suggested, the simplest
answer is that they cannot be avoided . The increasingly international nature of so many routine transactions, from car
and home rentals to major financial investments, along with instantaneous communications and the increased global flow of
individuals—all these new realities give rise to legal questions affecting not just foreigners but Americans as well. There is no
to answer them ourselves, with sound legal
Supreme Court of the World to answer those questions for us. Yet
judgments , requires information and understanding that often lie outside our borders . We no
longer have the luxury , even if we once did, of operating solely within the confines of our own
country , as if the only law that mattered were our own.

the interdependent world

If that answer is too simplistic, perhaps a more satisfying one begins with the observation that
of which we are part is characterized by, among other things, a fragile international economy , economic
divisions between North and South , increased environmental risks , insecurity , and in some
places anarchy , fanaticism, and terrorism . Little wonder that in many countries cynicism
abounds about the efficacy and honesty of government and its institutions. If there is any hope of solving
such complex problems, which belong to no one nation, the effort will have to be a collective one .

We Americans have an essential contribution to make to that effort. And it is a contribution strongly tied to who
As a lawyer and judge, I see our
we are, in that who we are has much to do with the nature of our government.
government as a kind of experiment in which Americans have long engaged. At a time when
democracy was to be found nowhere else in the world, Thomas Jefferson described the experimental hypothesis generally when he
wrote that we Americans thought it “self-evident that all men are created equal,” that “they are endowed by their Creator with certain
inalienable rights,” that “among these are life, liberty, and the pursuit of happiness,” and that “to secure these rights governments
are instituted among men deriving their just powers from the consent of the governed.”

The Founders filled in the details when they created a constitutional system, which managed to maintain a democratic form of
government, to protect basic human rights, to ensure a degree of equality, to divide power among numerous states and three
federal branches, lest any single group of officials become too powerful, and to require that government action be taken only in
accordance with law. The experiment continued. Abraham Lincoln would reiterate its hypothesis at Gettysburg when he began,
“Four score and seven years ago our fathers brought forth upon this continent a new nation, conceived in liberty and dedicated to
the proposition that all men are created equal.” But he spoke well aware that the Founders’ experiment was still fragile and
uncertain: “Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can
long endure.” 1 The Civil War proved that a nation “so conceived” could at least survive. And we Americans have continued to be
identified as the people who persist at that experiment. Despite many ups and downs, it has survived. As I often explain to foreign
judges, from Ghana to Romania to Burkina Faso, our constitutional system now holds together a diverse group of 315 million
citizens committed to resolving their disputes through law. It has created a judiciary, including a Supreme Court, which over two
centuries has made many unpopular and sometimes incorrect decisions that the public has nonetheless followed without resorting
to violence. That history may not explain our system’s success, but it should at least promote confidence that we can (though often
with difficulty) handle problems of the kind discussed in this book without compromising our most basic values.
Other nations continue their long-standing association with our experiment or have joined it
anew : England, which planted the seeds of our inviolable rights with the Magna Carta and effected substantial democratic reform
in the early nineteenth century, in the wake of American independence; France, whose revolution, shortly after our own, toppled
their monarchy; and ever more nations since the end of World War II. Nevertheless, there are open questions that remain critical to
the experiment’s success. Can
Europe, for example, maintain a union committed to democracy ,
widespread prosperity , and the avoidance of war ? Can fledgling democracies sustain
themselves in the face of the new challenges I’ve mentioned?

One major reason I believe it vital that our Court meet these challenges is for the sake of our
nation’s defining experiment: to show that our system , far from being a hindrance, or worse, in the face of new
realities, is perfectly well equipped to meet them . If in addition to sustaining a strong economy
and a well-educated workforce , and holding together a highly diverse nation, our system can
also address the world’s common problems , our example will continue to be influential. Thus we can
maintain our “ soft power ,” or what used to be called the “prestige” that our legal system enjoys abroad, as
matters of security , trade , the environment , and so on are resolved . But as I have said, the world will
follow someone’s example if not ours. Failing to lend our voice, we may find ourselves not so well served by, or
happy with, the results.
This brings us to perhaps the most pertinent reason for attempting to address today’s transnational problems through law: any
success in that effort helps to advance the rule of law itself . The rule of law represents the polar opposite of
the “arbitrary,” which the dictionary equates with the unjust, the illegal, the unreasonable, the autocratic, the despotic, and the
tyrannical. Like democracy and human rights, the rule of law is something more than an ideological commitment for Americans; it is
a sine qua non for our system, and where it does not exist, our interests cannot be secure. At the time of 9/11, Justice Sandra Day
O’Connor and I were in India, about to discuss the rule of law with Indian jurists. Our reception there made clear to us that the
important divisions in the world are not geographical, racial, or religious but between those who believe in a rule of law and those
who do not. Jurists
across the world help to weave this fabric in their dayto-day work , persisting in
their labors even if, in the manner of Penelope’s handiwork, what is woven by day sometimes unravels
during the night . Yet we continue working, not as politicians but as technicians , hopeful but
uncertain of success.

Our perseverance is not merely a matter of an inexhaustible hope but reflects the vulnerability of what we
create. At the end of his book The Plague, the French writer Albert Camus offers a parable of the Nazi
occupation of France. “[ T]he germ of the plague ,” he writes, “never dies nor does it ever disappear.
It waits patiently in our bedrooms, our cellars, our suitcases, our handkerchiefs, our file cabinets. And one day,
perhaps, to the misfortune or for the education of men, the plague germ will reemerge , reawaken its rats, and send
them forth to die in a once happy city.” 2

The rule of law is but one defense against the plague germ, but it requires constant use to
prevent the arrival of that unhappy day Camus describes. It is vital to our struggle to build a humane ,
democratic , and just society . I have written this book in order to show how the interdependence of today’s world, as it
has become manifest in our Court’s docket, poses considerable challenges for our judiciary. It is above all the need to maintain a
rule of law that should spur us on, jurists and citizens, at home and abroad, to understand these challenges and to work at meeting
them together.
 1AR – AT: Clog
The thesis of court clog is wrong
Stern 3, J.D. Candidate, 2003, (Toby J. Stern, “Federal Judges and Fearing The ‘Floodgates
of Litigation’,” University of Pennsylvania Law School; B.A., 2001, The Johns Hopkins
University,
https://www.law.upenn.edu/journals/conlaw/articles/volume6/issue2/Stern6U.Pa.J.Const.L.377(
2003).pdf, accessed on 7/12) AB **edited for glang**
One of the most easily identifiable problems with the floodgates argument is that it is rarely, if ever, followed by a true analysis of the
potential litigation of which it speaks. That is, one response to a floodgates argument might be, "Are you sure that a contrary
position would yield a flood of litigation?" 82

This criticism is frequently leveled against the floodgates argument, especially in the realm of tort litigation. For example, as one
commentator has argued:

The "floodgates of litigation" argument has proven wrong time and again . The lifting of the
"impact" rule in rewarding damages for mental anguish, allowing third parties to recover under
contracts, and the recognition of the right to privacy, were all prophesied to overwhelm the
courts with frivolous claims. They have not.
This argument, one should think, is relatively strong. While
the floodgates argument is generally based on
policy considerations,8 5 policy arguments are rarely so indeterminate. While moral arguments are
certainly not precise--one cannot quantify, say, "fairness" or 'justice"-they are simply used differently. That is, when a
judge says that a decision "promote [s] justice,"8 6 he or she [they] is not speaking about a tangible,
actual result. In contrast, when a judge expresses that a decision will open the floodgates of
litigation, he or she [they] is saying that there will be actual, cognizable caseload results from
the decision.
Given how often the floodgates do not open when we are warned that they will,"' making the
argument without a proper foundation is dangerous. While there certainly are situations in which a judge should
consider the implications of a decision on his or her [their] caseload, 8 doing so without considering the factual bases of those
implications is problematic.'8 9 And while uncertainty is an unavoidable part of the law,' 90 the language with which the floodgates
argument is regularly employed expresses anything but conjecture and uncertainty. The arguments are forceful; they are intended to
conjure "[i] mages of a destructive, elemental force."'9' After all, as Judge Posner notes, " So
irregular has been the
growth of the caseloads of each of the three tiers of the federal judiciary in the past, and so
many and poorly understood are the causes of changes in judicial caseloads, that it is
impossible to make responsible predictions about future changes .' 92 The failure of judges
to recognize this limitation of the argument reduces the weight afforded thereto.

Clog is inevitable and no impact

Marcum 18, Research associate for the R Street Institute’s Governance Project (6/20, The
federal courts need more judges — magistrates can help, Anthony,
https://www.washingtonexaminer.com/opinion/the-federal-courts-need-more-judges-
magistrates-can-help)

There is a crisis in the federal judiciary — 75 of them to be exact. That is the number of federal
courts,
according to the Judicial Conference (the policymaking body for the federal courts), facing “ judicial emergencies”
due to crushing caseloads and long-term judicial vacancies .
To address some of these challenges, the Judicial Conference has asked Congress to create 57 new federal judgeships. These
Since the last major increase in judgeships nearly 30 years ago,
additional judgeships are greatly needed.
filings in federal court have increased by approximately 40 percent . Mounting caseloads
create significant case delays and unneeded legal uncertainties, which fuel greater litigation costs and
impose significant hardship on individuals and businesses across the country.
Much of the trouble starts in the overburdened lower district courts. In 2017 alone, litigants filed more than
344,000 civil and criminal cases in federal district court. And although district courts managed to resolve more than 365,000 cases
last year, more than 439,000 cases remain pending , including approximately 100,000 criminal cases. If
Congress approved the Judicial Conference’s request, 52 of the 57 requested judgeships would serve the neediest of these district
courts.
 1AR – AT: Trump
He’ll comply – courts work with other actors and the travel ban proves
Goldsmith 17, [professor at Harvard Law School and a senior fellow at the Hoover
Institution. He is a former assistant attorney general in the George W. Bush administration, Will
Donald Trump Destroy the Presidency?, October,
https://www.theatlantic.com/magazine/archive/2017/10/will-donald-trump-destroy-the-
presidency/537921/
Thus far, however, Trump
has been almost entirely blocked from violating laws or the Constitution.
The courts, the press, the bureaucracy, civil society, and even Congress have together robustly
enforced the rule of law.
Trump’s initial executive order on immigration—a temporary ban on entry for people from seven Muslim-majority countries that were
not obvious sources of terrorist activity inside the United States—was widely seen as his first step toward authoritarianism. Issued
seven days into his presidency, the ban was sloppily written, barely vetted inside the executive branch, legally overbroad, and
incompetently rolled out. The administration gave the people subject to the ban’s edicts no notice, which led to bedlam at airports.
Many observers believed the immigration order indulged the “symbolic politics of bashing Islam over any actual security interest,” as
Benjamin Wittes of the Brookings Institution put it at the time.

A crucial moment occurred during the week after Trump issued the order. Civil-society groups such as the ACLU quickly filed
habeas corpus petitions asking federal courts to enjoin the order in various ways, which they did. For several days, it was unclear
whether border agents were complying with the injunctions, and rumors that Trump or his Department of Homeland Security had
ordered them not to filled the news. When a federal district-court judge in Seattle named James Robart halted the entire immigration
order nationwide in the middle of the afternoon on Friday, February 3, Twitter and the cable shows were aquiver for several hours
with the possibility that Trump would defy the court.

“What would happen if the administration were to simply ignore this court order and continue to deny people entry?,” MSNBC
national correspondent Joy Reid asked her guests on All In. Washington State Attorney General Bob Ferguson, who had brought
the case against Trump, treated the question as a live possibility. “I don’t want to be overly dramatic, Joy,” he said, “but you would
have a constitutional crisis.”

The hardest question in American constitutional law was suddenly raised: Why does a president,
who controls what Alexander Hamilton described as “the sword of the community,” abide by a judicial
decision he abhors?
Trump wouldn’t have been the first president to flout a court order. Six weeks into the Civil War, Abraham
Lincoln defied a ruling by Chief Justice Roger B. Taney that the president lacked the authority to
suspend the writ of habeas corpus, and Franklin Roosevelt threatened to ignore the Supreme Court
in a World War II case involving Nazi saboteurs. But during the next few decades, judicial authority solidified. Though many worried
that Nixon would disobey the Supreme Court in 1974 when it ordered him to turn over his incriminating tapes to a special
prosecutor, Nixon famously acquiesced. Would Trump?

We can imagine that he didn’t want to. We can imagine him ranting deliriously after Robart issued his decision. But at 10:05 p.m.,
the White House put out a statement declaring that the Justice Department would seek to stay the “outrageous order,” which meant
that the executive branch would pursue review in higher courts. And 10 hours later, at 8:12 a.m., the incensed chief executive
tweeted the first of many attacks against Robart. “The opinion of this so-called judge, which essentially takes law-enforcement away
from our country, is ridiculous and will be overturned!,” Trump wrote. He would appeal, rather than defy, Robart’s injunction.

ignoring the ruling would spark

We don’t know why Trump acquiesced. Perhaps his staff convinced him that
resignations in the White House and the Justice Department, as well as congressional reprisal,
which would jeopardize his two-week-old presidency. Whatever the reason, the most powerful man in the
world complied with the edict of a little-known federal trial judge on an issue at the top of his
agenda. The Constitution held.