You are on page 1of 85

SDI 2008 1

WHAM! 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.........................................................................................................12


States  Federal Modeling....................................................13

States  Federal Modeling.........................................................................................................13


AT: States Don’t Have Money...............................................14
AT: States Don’t 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
SDI 2008 2
WHAM! States/Fism Core

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.................................................................................................................27
States Can’t Get Modeled.......................................................28
States Can’t 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..........................................................................................................................31
California 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
SDI 2008 3
WHAM! States/Fism Core

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.....................................................................................................................45
Federalism 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.....................................................................................49
Federalism 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
SDI 2008 4
WHAM! States/Fism Core

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...........................................................................63
Russian 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...............................................................................................67
Indonesian 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
SDI 2008 5
WHAM! States/Fism Core

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 Doesn’t Model US Federalism....................................80
Russia Doesn’t 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
SDI 2008 6
WHAM! States/Fism Core

States CP 1NC
The Fifty States of America and United States territories should
_________________________________________________(Insert Mandates Of Aff Plan)

( ) States can solve any alternative energy mechanism as well as the federal government –
they have experience with everything
Michael Northrop and David Sassoon, Program Director for Sustainable Development at the Rockefeller
Brothers Fund and administrator of SolveClimate.com, Yale Environment 360, 6-3-2008,
http://e360.yale.edu/content/feature.msp?id=2015
The decisive action of many states — 27 currently have or are developing comprehensive climate action
plans — is taking on added importance for another reason: Innovative state climate and energy policies
are showing skeptics in this country and in Congress that, rather than being a burden, ground-
breaking energy conservation and renewable energy programs can create economic opportunity. Many
of the more than 300 climate policies and mechanisms devised by various states will provide new
business opportunities, as all sectors of society — housing, industry, commerce, energy, agriculture,
forestry, transportation, waste management — adopt greater energy efficiencies and move to alternative
sources of energy. Against the backdrop of inaction by the Bush administration and Congress, the states
have moved farther and more rapidly than most people realize. Indeed, this September, ten mid-Atlantic
and Northeastern states will begin implementing a cornerstone of effective national or global climate
policy: A so-called “cap-and-trade” system under which emitters of greenhouse gases — in this case, power
plants — must begin steadily reducing carbon emissions and can sell a portion of their emissions allotment
once they begin implementing efficiencies. Power plants that fail to meet their emissions targets could buy
allotments from more efficient utilities.
SDI 2008 7
WHAM! States/Fism Core

States Solve – Alternative Energy


( ) States have tons of experience with alternative energy programs – they can solve
Barry G. Rabe, University of Michigan, November 2002, 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 have
expanded and intensified in the past several years. In some cases, states have considered climate change
mitigation explicitly while in others it has been an incidental benefit. Reflective of the vast scope of activity
that generates greenhouse gases, state policies have been enacted that reduce these emissions in such
areas as promotion of renewable energy, air pollution control, agriculture and forestry, waste
management, transportation, and energy development, among others. In almost all cases, there have
been multiple drivers behind and multiple benefits from these state policies. In Texas, for example, the
desire for energy independence, economic development, and air pollution control drove the state to promote
renewable energy. Not all states have demonstrated interest in these initiatives and some legislatures have
taken 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 late
1990s, reflected in their current operation in every region of the country. Collectively, they constitute a
diverse 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, Patrick Quinlan, Harvey M. Sachs, and Daniel Williams, Am. Council for an Energy-
Efficient Economy, March 2002, “Tax Credits for Energy Efficiency,”
http://aceee.org/pubs/e021full.pdf?CFID=1059758&CFTOKEN=72603414
States play a fundamental role in addressing energy use and the adoption of energy efficiency measures
at the regional and local level States can provide tax incentives that foster technology options matched to
the needs of their residents. This report describes the current status of energy efficiency and “green
buildings” tax incentives that states offer. Our goal is to assist state policymakers in designing and evaluating
their own programs by providing insights about current programs in other states. A properly designed state
tax incentive has both short-term and long-range benefits. In the short run, the incentive can effectively
increase market share of an advanced technology or practice that otherwise would be harder for the
state’s residents, businesses, and other organizations to find. By itself, the state’s action increases the
visibility of the technology or practice and validates it with the state’s credibility. Greater market share
bunches a “virtuous circle.” As market share increases, more market actors (salespeople. specifiers.
installers, etc.) become vested in the technology or practice because it can be more profitable than the
status quo and can increase customer satisfaction. This vestment induces more firms to enter the market
and the resulting competition can drive down prices and further increase market share. At some point,
market share is large enough that the technology or practice is clearly cost-effective and has broad support
from those who profit from it. By then, a state tax credit is no longer needed and building codes and other
regulatory mechanisms can be revised to make use of the technology or practice mandatory. State-funded
energy efficiency incentive programs increase consumer choices by inducing innovation in the private sector.
The programs thus benefit state energy, economic, and environmental objectives. The private sector needs
encouragement to provide products and services that address broader energy security, system reliability.
environmental, and economic goals. In particular. marker failures limit private investment in cost-effective
efficiency measures: for example. projected returns may be lower than for other, non-energy investments or
technology deployment timeframes may be too long. Tax credits can accelerate customer acceptance and
increase market share for high-efficiency products and services. Benefits accrue to the state and its
residents. the United States and its citizens, and the global climate.
SDI 2008 8
WHAM! States/Fism Core

States Solve – Alternative Energy


( ) State tax incentives foster alternative energy technology
Elizabeth Brown, Patrick Quinlan, Harvey M. Sachs, and Daniel Williams, Am. Council for an Energy-
Efficient Economy, March 2002, “Tax Credits for Energy Efficiency,”
http://aceee.org/pubs/e021full.pdf?CFID=1059758&CFTOKEN=72603414
The objectives of state-funded energy efficiency incentive programs are to foster consumer choices that
benefit statewide energy. economic. and environmental objectives. Market barriers impede the ability of
the 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 the
market 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, Summer 2006, “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 of
RE projects and make them more cost-competitive with other fuel methods. Many states have adopted
tax incentive systems that can be applied to corporate, income, property or sales taxes. n90 Such
corporate and income tax incentives provide deductions or credits for purchased RE equipment. For
instance, some states provide Investment Tax Credits (ITC) for either centralized or decentralized wind energy systems. n91 Property
and business owners who invest in wind energy systems are granted ITCs equal to a [*778] percentage, as established by the state
legislature, of the amount invested in the project. n92 Some states have adopted sales tax incentives that either exempt or reduce the
sales tax on RE equipment. n93 Sales tax reductions may be placed on land assets, materials or equipment, and energy transfer. Yet
another, 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 assessed
value 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,” muse
Scholars 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 indirect state and local governments efforts to mitigate GHG emissions
have intensified and expanded. By 2007, more than 20 states had adopted legislation or issued
executive 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, California
Governor Arnold Schwarzenegger issued an executive order calling for the state to reduce its GHG emissions to 1990 levels by 2020.56
Denver stands out as a city government that has explicitly integrated emissions-mitigation considerations into its core policies and
organizational structure.57 In 2006, voters in Boulder, Colorado, approved a carbon tax based on kilowatt hours that will generate
revenue 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
problem and that unsustainable organizational and personal consumption exacerbates the problem. However, durable state/local
policy and population behavioral changes that limit or reduce GHG emissions remain the exception rather than the rule in the United
States (and China) because the benefits of global climatic stabilization are not immediately discerned or appreciated by most consumers
and policy makers.59 In some policy-making situations, visible emphasis on GHG-emission reductions alone would be
counterproductive. 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 with
greenhouse gases, it would have hurt the bill's chances. So we didn't."60
SDI 2008 9
WHAM! States/Fism Core

States Solve – Cap And Trade


( ) States can solve cap and trade – they’re already setting it up
Robert K. Huffman, lawyer, and Jonathan M. Weisgall, VP at MidAmerican Holdings,Winter 2008, “Climate
Change and the States,” Sustainable Development Journal,
http://www.wcl.american.edu/org/sustainabledevelopment/2008/winter08.pdf?rd=1
Although the United States is not a signatory to the Kyoto Protocol, there are several efforts underway to
establish state- or regional-level trading systems. These follow not only the model of the EU-ETS, but
also other successful domestic cap-and-trade programs administered by the EPA, including the Acid Rain
Program.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 state’s 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 the
process of adopting a scoping plan to identify California’s primary strategies for reducing GHG emissions under A.B. 32. The goal
would be to have the cap-and-trade program operating by January 1, 2012.26 Governor Arnold Schwarzenegger has openly expressed an
interest in linking any cap-and-trade program, once it is open for business, with the EU-ETS market.27 In addition to California’s
intrastate efforts, three interstate groups are currently in the process of establishing carbon markets. One
project, known as the Regional Greenhouse Gas Initiative (“RGGI”),28 was initially formed in 2003 and is now made up of ten states in
the 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 consortium
administering 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 market
will 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 to
resolve in the early stages of the program. The second multi-state group, known as the Western Climate Initiative (“WCI”), consists of
seven Western states and two Canadian provinces: Arizona, California, Montana, New Mexico, Oregon, Utah, Washington, British
Columbia, and Manitoba. The WCI was established in February 2007, and as a result is not as far along in the process as RGGI. WCI is
currently in the design phase, having completed basic design principles and established a year-long work-plan.29 Its goal is to have the
design of the market-based mechanism completed in August 2008. Based on this timeline, it is unlikely that the WCI will be able to
establish a functioning market before 2011 or 2012. A third group, consisting of nine Midwestern states and the Canadian province of
Manitoba, signed the Midwestern Regional Greenhouse Gas Reduction Accord in November of 2007, which is designed to establish
greenhouse gas reduction targets, a regional cap-and-trade protocol, and a regional system to track and manage greenhouse gas
emissions.30

State’s solve cap and trade – they can impose stronger requirements on emitters
Franz T. Litz, Esq., Senior Fellow at the World Resources Institute, June 2008, World Resources Institute for the
Pew Center, “TOWARD A CONSTRUCTIVE DIALOGUE ON FEDERAL AND STATE ROLES IN U.S.
CLIMATE CHANGE POLICY”, rks, http://www.pewclimate.org/docUploads/StateFedRoles.pdf
Although a state cannot directly impede the workings of the ARP cap-and-trade program, the Clean Air Act
does allow a state to impose more stringent requirements on the plants subject to the ARP program. A
state may, in fact, implement a statewide cap-and-trade program that requires reductions more
stringent than the federal ARP from the same sources. The State of New York chose to implement an
aggressive statewide cap-and-trade program to reduce sulfur dioxide emissions from power plants in
the state—from the very same plants subject to the federal program.40

States solve cap and trade – they will be able to find the best solvency mechanism and will
be specific to the state itself
Franz T. Litz, Esq., Senior Fellow at the World Resources Institute, June 2008, World Resources Institute for the
Pew Center, “TOWARD A CONSTRUCTIVE DIALOGUE ON FEDERAL AND STATE ROLES IN U.S.
CLIMATE CHANGE POLICY”, rks, http://www.pewclimate.org/docUploads/StateFedRoles.pdf
The Heavy State Role option presents some advantages. The federal action would deliver two key
benefits: there would be clear national reduction targets and all states would have to contribute their share to
the effort. Beyond these benefits, all 50 states would be allowed to experiment with individual state
approaches to reduce emissions, much as many states have done to date. This would tend to be positive
for those policy mechanisms that are best tailored to specific state circumstances. The approach would
also engender a potentially productive competition among states to develop policies that best achieve
the results while meeting other state goals.
SDI 2008 10
WHAM! States/Fism Core

States 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 centralized
regulatory regimes. Decentralization can enhance the efficiency and effectiveness of environmental
controls. 582 No less important, decentralization can allow for experimentation with alternative
approaches to environmental protection with which there is relatively little practical experience. 583 "By
decentralizing environmental decision making, we may be able to obtain improved responsiveness to
changing circumstances and new information," notes Professor Farber. 584 There is no reason, a priori, to
view the decentralization of environmental protection as a threat to environmental protection, as opposed
to a way of making it "more effective." 585 The potential environmental benefits of decentralization are
not merely theoretical. The history and current practice of state and local environmental protection
provide ample reason to question the assumption that lessening federal environmental regulatory authority
necessarily results in [*465] lessened environmental protection. While the federal government is the most
conspicuous actor on the environmental stage, state and local governments are the avant garde, developing
innovative efforts to enhance the ecological and economic performance of environmental protection. 586
From 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 on
investments in environmental policy. 587 The conventional wisdom holds that federal environmental
regulation was necessary because states failed to adopt adequate environmental measures. This view ignores
the substantial environmental progress in many areas due to state and local efforts adopted prior to the
enactment 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 substantial
improvement in water quality in major waterways over the preceding decade. 589 While water quality
problems persisted, the evidence suggests that states began addressing those water quality problems that
were clearly identified and understood well before the federal government. Several studies of air pollution
similarly find evidence of significant environmental improvement prior to the adoption of federal
environmental regulation. Historically, the first municipal smoke ordinances were adopted in the late
nineteenth 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 of
federal controls than after. 592 A study by Paul Portney of Resources for the Future also found that "at least
some measures of air quality were improving at an impressive rate before 1970." 593 Research by Robert
Crandall of the Brookings Institution similarly concluded that pre-federal air pollution control efforts were
more successful than is typically assumed: "Pollution reduction was more effective in the 1960s, before there
was a serious federal policy dealing with stationary sources, than since the 1970 Clean Air Act
Amendments." 594 These studies suggest that state and local governments had the ability and motivation to
address identified environmental concerns, such as air pollution. 595 As with water pollution, once a given
air pollution problem was clearly identified and understood, state and local governments began enacting
measures to address these concerns before the federal government got into the act. Indeed, in some
cases the early state efforts became the model for subsequent federal measures. In others, federal
regulations 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 state
and local efforts "failed" to protect environmental quality, the historical record is more ambiguous. Prior to
the 1970s, the federal government failed to fulfill many of its preexisting environmental obligations. Yet, as
discussed above, some state and local governments were beginning to make substantial progress in
addressing local environmental concerns. 597
SDI 2008 11
WHAM! States/Fism Core

States Solve – International Modeling


( ) States solve international modeling and perception arguments – they’re perceived just
as much, even if it’s not national action
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
Individually, the size of many of these state economies rivals those of most countries. State climate
policy initiatives — though not yet implemented on a national scale — are collectively among the most
advanced 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 waited
patiently for the United States to engage meaningfully in international climate efforts.
SDI 2008 12
WHAM! States/Fism Core

States  Federal Modeling


( ) States are empirically modeled by the federal government on environmental policies –
and new policies will provide experience for the feds
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 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 acid
rain. 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 by
the ten Eastern states in the Regional Greenhouse Gas Initiative (RGGI), two other regional groupings of
states are working to establish carbon trading — the Western Climate Initiative and the Midwestern Governors
Association. 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 as
lawmakers debate Lieberman-Warner, which would create a national cap-and-trade program. One important element of the debate on
Capitol Hill concerns the formula for allocating or auctioning carbon credits, and a number of states have developed valuable expertise
on this issue. A RGGI expert working group, for instance, conducted an in-depth analysis on the subject, and many states have already
made the crucial choice to auction 100% of carbon credits under RGGI trading. Under this system, northeastern utilities would purchase
credits, or allowances, permitting them to emit CO2 at current levels, with requirements for steady reductions. As the utilities lower CO2
emissions, they can sell the credits to utilities that have made slower cutbacks. The RGGI auction proceeds would be used to help
vulnerable 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. But the states have far more to offer. They also
have approved a host of energy-efficiency measures affecting all sectors of the economy. For example, one set of policies provides both
emissions reductions and substantial economic savings from the building sector through improved building codes, insulation and
weatherization programs, and lighting retrofits. From the waste management sector, waste reduction and recycling programs yield
similar two-pronged benefits. These policies go hand-in-hand with others mandating that an increasing percentage of a state’s energy
come from renewable sources, such as solar and wind power. Many states — chief among them California — have
shown similar national leadership by significantly toughening auto emissions standards, leading Congress
to increase national vehicle standards last December and the Environmental Protection Agency (EPA) to
challenge the states in court.

( ) States are best at implementing alternative energy – they’ve done hundreds of projects
and spillover to the federal government in the long run
Rusty Haynes, Policy Analyst @ NC State, 2005, “Systematic Support,” DSIRE,
http://www.dsireusa.org/documents/PolicyPublications/Haynes_KIER_Keynote.pdf
In the absence of strong, continuous federal support for renewable energy, dozens of U.S. states have
stepped in to fill the void. Indeed, states collectively have implemented hundreds of policies to promote
the adoption of renewable energy, for reasons ranging from energy diversification, to economic
development, to air-quality improvement. It is important to recognize that some of these policies could
become part of the “long-standing tradition in American governance whereby states serve as
laboratories for subsequent federal policy.”10

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


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 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 Washington’s inaction: Many states have been stepping
into the void and adopting comprehensive climate change policies that can be a model for the coming
federal 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 climate
legislation that will no doubt be adopted under the next presidential administration. State action is also
vital because among the top 75 emitters of greenhouse gases worldwide, half are U.S. states.
SDI 2008 13
WHAM! States/Fism Core

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#PaperDownload
This article identifies the key state/federal issues that should be addressed in any comprehensive national
climate change legislation. It also provides recommendations for resolving these issues. The premise is that
we cannot hope to successfully address climate change without fully engaging states and their local
governments as partners in the national effort. In the early 1970s, Congress passed national air quality,
water quality, surface mining, solid and hazardous waste, and other legislation based on models
created by prior state action. This federal legislation created floors and requirements for states that had
failed to do the job, but left a significant role for states both in implementing the federal model and
continuing to act. As a result, state environmental protection and natural resource agencies have become
larger, better funded, more professionally staffed, and more effective than they were in 1970. And on climate
change, 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, ln
The California initiative has also created international ripples. On Oct. 29, California, New York, New
Zealand, Norway, and several European countries and Canadian provinces formed an International
Carbon Action Partnership to create a global cap-and-trade carbon market to build demand for low-
carbon services and products. In September, Governor Schwarzenegger joined more than 80 leaders at a
United 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. "The
governor plays a great role by being a cheerleader for global warming," says Jim Metropulos of the
Sierra Club. "He's a Republican in the biggest state, and to say that ... we are going to do what we need to do
to get these goals met has a big impact."

( ) State initiatives spillover to other states and the federal government


Barry G. Rabe, University of Michigan, November 2002, 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 climate
change strategy for the United States. Diffusion of innovation from one state to others is already
occurring 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 tradition
in 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.
SDI 2008 14
WHAM! States/Fism Core

AT: States Don’t 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.pdf
The 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 energy
future. In terms of designing a financial-incentive program for renewables based on U.S. state governments’
experiences, 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 country’s most generous financial incentives—including rebates, grants, production incentives
and low-interest loans—that support the development of renewable energy. These policies have had a
significant impact on the renewable-energy industry, particularly in California, New York and New
Jersey.

( ) States can easily raise money for renewables using a system benefit charge
Steven Ferrey, Law Prof @ Suffolk, March 2006, Electricity Journal, 19.2, “Renewable Orphans,” p.
sciencedirect
The system benefit charge is a tax or surcharge mechanism for collecting funds from electric
consumers which can then support a range of activities.2 In order to support demand-side management
or renewable resources, funds are collected through a nonbypassable system benfits charge to users of
electric distribution services. The money raised from the system benefit charge is then used to ‘‘buy
down’’ the cost of power produced from sustainable technologies, so that they can compete with more
conventional technologies. The overall design of the system is to allow electric utilities to recover certain
costs fromall retailelectricitycustomers. More than a dozen states have established renewable energy
subsidy programs funded by system benefit charges that over this decade should raise approximately
$3.4 billion.3 Between 1998 and 2012, approximately $3.5 billion will be collected by the original 14 states
with renewable energy funds.4 More than half the amount collected – at least $135 million per year – comes
from just California.5 The funding levels range from $0.07/MWh in Wisconsin up to almost $0.6/ MWh in
Massachusetts.6 The funds are disbursed as either investments, grants, other subsidies, or R&D grants
by the funding agency. Most only provide assistance to new projects, and not existing renewable projects.

( ) Public benefit funds ensure the states have a mechanism to fund alternative energy
incentives
Steven Nadel and Marty Kushler, Am. Council for Energy-Efficient Economy, October 2000, Electricity
Journal, “Public Benefit Funds,” p. sciencedirect
The principal public policy lesson learned thus far is that it is indeed possible to establish a statewide or
regional public benefit energy efficiency funding mechanism and achieve practical success in
administering and delivering valued services. Another lesson is that there does not appear to be any single
“correct approach” for the design of such a system. Some states are hav- ing success with utility-administered
programs (e.g., Massachusetts and California), while others are succeeding with programs administered by
state agencies (e.g., New York) or an independent entity (e.g., the Northwest). Likewise, most states are
coordinating at least some programs regionally, while most states are also implementing some programs on
their own. This translates into what might be the primary strategic and tactical lesson: Within an overall
policy of public benefit funding support for energy efficiency, each state should take advantage of its
own strengths and assets in designing the specific details of its energy efficiency programs.
SDI 2008 15
WHAM! States/Fism Core

AT: States Race To Bottom


( ) States don’t race to the bottom on the environment – no evidence supports their
arguments
Jonathan H. Adler, Law Prof @ Case Western, 2007, 31 Harv. Envt’l. 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" theory
posits that states will be discouraged from adopting the optimal level of environmental protections due to
interjurisdictional 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
empirical evidence demonstrating a race to
fail to offset the welfare losses from suboptimally lax environmental regulations. n47 Though possible,
the bottom in environmental policy is generally lacking. n48 There is evidence that state policy-makers consider the impact of
environmental regulations on their states' economic competitiveness. n49 Nonetheless, most empirical studies have failed to find any evidence
that 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. Envt’l. L. Rev. 67, “When is Two A Crowd,” ln
States can also be encouraged to adopt greater levels of environmental protection by the actions of
their 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 to
adopt 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 for
a negative "race to the bottom." n53

( ) States don’t race to the bottom – their argument is theoretically and empirically
bankrupt. Firms base siting decisions on other factors, federal standards don’t stop
competition, and states compete to improve the environment
Jonathan H. Adler, Assoc. Law Prof @ Case Western, Jan. 2005, “Judicial Federalism,” 90 Iowa L. Rev. 377, ln
A common concern voiced in environmental policy debates is that lessening federal authority will lead to
environmentally harmful interjurisdictional competition. Specifically, the lack of federal regulation will set off a "race to the
bottom" in which state jurisdictions compete for corporate investment and economic development by reducing [*467] environmental safeguards. 598 The theory is based upon
the intuitive notion, supported by some empirical evidence, 599 that firms are more likely to invest in states with less costly regulatory regimes. This concern is the "central
on
underpinning" of federal environmental regulation 600 and has been relied upon by courts to uphold federal environmental statutes against constitutional challenges. 601 Yet
both theoretical and empirical grounds, concerns about an environmental race to the bottom seem
overstated. Professor Revesz has demonstrated that the framework underlying the race to the bottom
theory has several analytical failings. 602 Firms base siting and relocation decisions on a wide range of
criteria, of which environmental regulation is only one, and there is ample evidence that other factors
typically play a greater role in such decisions. 603 Tax rates, infrastructure, availability, cost, skill of local labor, and other regulatory policies are also important
considerations for businesses. If the race to the bottom operates in the environmental sphere, there is every reason to expect it to operate to the same extent in these other contexts,
suggesting that federal regulation would be necessary across the board. 604 In this way, the race to the bottom theory - if taken seriously - proves too much. In addition, the adoption
federal environmental standards to prevent a race to the bottom in environmental policy would not
of minimum
eliminate the competitive pressures. Rather, it would shift them to other contexts, and the hypothesized welfare [*468]
losses would remain. 605 Professor Revesz also points out that the same dynamic that could theoretically produce systematic environmental underregulation could also produce
overregulation. 606 If states are more aggressive at competing for industry through tax policy than through environmental policy, the likely result would be suboptimal tax rates but
superoptimal levels of regulation. 607 The theory persists, despite its flaws, because it is reasonable to assume that jurisdictions will seek to create a comparatively more attractive
investment climate in order to better compete economically. Insofar as environmental regulations impose significant economic burdens on existing and prospective economic actors in
a given area, it is also reasonable to expect jurisdictions to act so as to lessen such burdens. 608 Recent empirical work suggests that this is in fact the case as government officials
acknowledge efforts to reduce the economic pinch of environmental regulation for economic purposes. 609 Yet for this to prove the race to the bottom hypothesis, it is necessary to
further assume that reducing the economic cost of environmental regulation necessarily reduces the level of environmental protection. While such a conclusion may be justified in
certain contexts, it cannot be assumed across the board. As not all environmental protection measures produce equivalent levels of environmental protection at equivalent costs, it
should be possible for many jurisdictions to reduce the economic cost associated with environmental measures without sacrificing environmental quality. 610 In addition, it is
states compete for citizens by seeking to improve their environmental performance.
important to recognize that many
Because many people may be more likely to move to a state with high levels of environmental quality, this
[*469] creates pressure for states to adopt more protective environmental policies. 611 In practice, the
race to the bottom has not been observed in environmental policy. 612 As already noted, state and local governments often
regulated well before the federal government became involved. While this fact alone does not disprove the race to the bottom thesis - such state regulations could still have been
suboptimal when compared to the federal alternative or some theoretical ideal - they demonstrate that competitive pressures do not preclude effective state regulation. More
significantly, where the race to the bottom thesis has been directly tested in the context of wetlands, the pattern of state regulation has been precisely the opposite of what the theory
would predict.
SDI 2008 16
WHAM! States/Fism Core

AT: Federal Preemption


( ) State alternative energy programs won’t be struck down – they have to be found
discriminatory
Steven Ferrey, Law Prof @ Suffolk, March 2006, Electricity Journal, 19.2, “Renewable Orphans,” p.
sciencedirect
Because there is no clear bright line separating regulation that does and does not discriminate, and the
judicial test and standard applied by the court is so distinct between the two, the critical determination is
the court’s initial conclusion as to whether or not a regulation is discriminatory, and if so, whether such
discrimination is based on point-of-origin regu- lation.25 Even in the absence of a discriminatory intent,
courts are able to outlaw Commerce Clause violations to prevent the ‘‘Balkanization’’ of various states’
regulations. 26 S o, what is legal? A renewable portfolio standard alone does not raise commerce clause
issues. A limitation on the in-state location of resources for inclusion in the portfolio could run afoul of the
commerce clause.27 As long as the state regulation does not discriminate on the basis of geography of
energy 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 won’t rollback state action


Jack Goldsmith, Prof @ Chicago, November 1997, Virg. L. Rev., ln
The rise in subnational foreign relations activity tells us little, of course, about the activity's normative
desirability. But we should also avoid the automatic assumption that this development is normatively
undesirable. This is especially true because the federal political branches have made clear that, in contrast
to traditional foreign relations activities which largely have been federalized through statute and treaty, they
do not always, or even usually, prefer federal regulation of these new foreign relations issues. The recent
increase in state and local involvement in such issues "has occasioned little reaction from Congress or
the Executive." 232 And when the political branches do react, they often choose to protect state
interests over foreign relations interests when the two appear to clash. A good example is the United States'
recent ratification of a variety of international human rights treaties. 233 These treaties create numerous
potential [*1675] conflicts with state law. 234 In the face of international pressure, the President and
Senate have consistently attached reservations, understandings, and declarations to these treaties to
ensure that they do not preempt or affect inconsistent state law. 235 Similarly, California's worldwide
unitary tax on multinational corporations has provoked enormous diplomatic controversy with our closest
trading partners since the 1980s. 236 The President negotiated a treaty that would have preempted this law,
but the Senate withheld its consent. 237 And in the face of substantial pressure from foreign governments,
Congress consistently failed to enact legislation preempting the unitary tax. 238

( ) Preemption doesn’t take out solvency


Jack Goldsmith, Prof @ Chicago, November 1997, Virg. L. Rev., ln
Even when the political branches enact preemptive federal foreign relations law, they often do so in a
manner that reflects the interests of the states and minimizes intrusion on their prerogatives. When
Congress codified the international law standards for determinations of foreign sovereign immunity, it
ensured that otherwise-applicable state law would continue to govern the merits of such suits. 239 Similarly,
in federal implementing legislation for the Uruguay Round of the General Agreement on Tariffs and Trade
("GATT"), "political sensitiv- [*1676] ity to state sensibilities were [sic] reflected in several ways." 240
Most significantly, the legislation "precluded the agreements from having any direct effect, and indeed
required an action by the United States Government for the purpose of striking down a state law." 241 In
addition, the federal government has actively cooperated with and supported the unilateral state
economic activities described above. 242 The overtly political international activities of states, such as
nuclear-free ordinances and state divestment movements, are more controversial. For example, Congress by
statute overruled several governors' resistance to allowing the participation of national guard troops in
Central American military activities in the mid-1980s. 243 But Congress declined to preempt the most
notorious recent state foreign relations activity - state sanctions against South Africa - when it enacted the
Anti-Apartheid Act of 1986, 244 and Massachusetts's recent sanctions against Myanmar 245 soon led to
similar sanctions by the federal government. 246
SDI 2008 17
WHAM! States/Fism Core

AT: Perm
( ) The perm would force preemption – it’s impossible for the plan and CP to exist
Robert K. Huffman, lawyer, and Jonathan M. Weisgall, VP at MidAmerican Holdings,Winter 2008, “Climate
Change and the States,” Sustainable Development Journal,
http://www.wcl.american.edu/org/sustainabledevelopment/2008/winter08.pdf?rd=1
The best case for federal preemption would arise if the federal government instituted a similar cap-and-
trade system or other form of comprehensive carbon emissions regulation. Any program that created a
nationwide price for carbon would likely be interpreted as directly conflicting with state programs; in
the alternative, courts would probably hold that federal efforts occupy the field of GHG regulation. But
lacking such a program, as is currently the case, it is difficult to see any way in which a state-organized cap-
and-trade program could be preempted under the Supremacy Clause. Some congressional leaders are
advocating for express preemption in any future comprehensive cap-and-trade bill. The Dingell-Boucher
white paper,68 which discusses the role of federal, state, and local governments in efforts to reduce GHG
emissions, makes the case for express preemption. “[O]nce a national, economy-wide cap-and-trade
program is adopted, State or regional cap-and-trade programs may interfere with the efficient
functioning of the Federal cap-and-trade program[.]”69 As a result, “Chairman Dingell has made it very
clear that he believes that motor vehicle greenhouse gas standards should be set by the Federal Government,
not by State governments[.]”70 In addition, the analysis finds that compliance costs and overall system
costs (including regulatory overhead) are likely to be higher in any duplicative system of federal and
state/regional regulation.71 While the current version of the Lieberman-Warner bill actually encourages and
provides incentives for states to take actions above and beyond the federal cap-and-trade program,72 there is
a possibility that an express preemption clause could be part of any final bill.
SDI 2008 18
WHAM! States/Fism Core

California Economy Alt-Causes


California’s 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 of
the 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 has
expanded sharply, in part, he believes, because stressed-out families seek more income to offset rising
housing, fuel and food costs. The housing meltdown is having both direct negative impacts – fewer
construction jobs, declining purchases of building materials, furniture, and so on – and indirect ones. Even
Californians whose incomes have remained steady must face rising prices and, if they're homeowners, are
seeing personal wealth in the form of home equity decline, so are cutting consumer purchases. The
economic 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.

California’s Economy is horrible; there’s a high deficit, high unemployment, and a horrid
housing crisis.
Evan Halper, Los Angeles Times Staff Writer, 6-30-2008, Los Angeles Times, “Brokaw needles Schwarzenegger
on spending, economy,” rks, http://www.latimes.com/news/local/politics/cal/la-me-arnold30-
2008jun30,0,595673.story
Gov. Arnold Schwarzenegger, usually a darling of the national media, found himself being told by the host
of NBC's "Meet the Press" that if he ran a private company the way he has run the state, he might have
been fired by now. Tom Brokaw, who will be moderating the program through the presidential election, put
a series of confrontational questions to the governor in an interview taped in California and aired this
morning. When you ran for governor in 2003, you ran as a fiscal conservative who would change the system,
who would bring business-like techniques," Brokaw said. "Now, you are facing a $15-billion deficit here
in California. Unemployment is running at about 6.8%; you've got the worst housing crisis since the
Great Depression. If you were the CEO of a public company, the board would probably say, 'It is time
to go.' "
SDI 2008 19
WHAM! States/Fism Core

Lopez CP 1NC
The United States Supreme Court should issue a narrow ruling that federal authority over
_____________________(Insert the area of the plan) exceeds the power of the federal
government under the 10th Amendment, and devolve this authority to the states. The Fifty
States of America and United States territories should
_________________________________________________(Insert Mandates Of Aff Plan).

( ) The Court can make this ruling and devolve power to the states –it won’t be rolled
back
Mark A. Miller, Lawyer @ Baker Botts, 1998, Cleveland State L. Rev., ln
The history of the Tenth Amendment is an appropriate starting point in the development of substantive
federalism. For a long period of time, the Tenth Amendment operated as nothing more than a plain statement
of the obvious that afforded little protection to the states. 249 In the aftermath of Garcia, state sovereignty
was left to the political processes. 250 Tenth Amendment power was reborn in New York v. United States
when the Court held that Congress could not commandeer the states' legislative function. 251 This
protection is decreed no matter how strong the federal interest in the legislation may be. 252 Protections
over state sovereignty were expanded again in the 1996 Term when the Court invalidated certain portions of
the Brady Act. 253 According to Printz, Congress cannot force the states' executive branches to enact federal
regulatory programs regardless of the federal interest involved. 254 Whenever the structural framework of
dual sovereignty is compromised, the Tenth Amendment steps in to prevent a usurpation of federalism.
255 Printz and New York held that Congress was incapable of commanding the states to take a course of
action that it could not undertake directly. 256 But what happens if Congress breaches the Tenth Amendment
through an Article I power like the Spending Clause? Do the Court's enunciated protections extend to Article
I? These are the questions that the theory of substantive federalism answers. The restraint on Article I began,
to large extent, in Garcia when Justice O'Connor predicted that the Commerce power would be affirmatively
limited [*191] by state autonomy. 257 The door was further opened in New York when the plenary nature of
the Commerce Clause was labeled as "subversive" to the interests of state sovereignty. 258 United States v.
Lopez put the first nail in the coffin when it struck down an exercise of the Commerce power as going
so far as to approach a "police power of the sort retained by the States." 259 The Commerce Clause, in other
words, authorizes control over interstate commerce, but does not authorize regulation of the states. 260
Seminole Tribe, however, lends the greatest support to the substantive federalism theory. The Eleventh
Amendment -- a core guardian of state sovereign interests 261 -- withstands any attempt by Congress
to pierce the shield of federalism with Article I. 262 Similar to the Tenth Amendment, the Eleventh
Amendment once provided little protection to the states when Congress flexed its Article I muscle. 263 Along
with the strengthening of the Eleventh Amendment, New York and Printz add to the growth of federalism
and the devolution of unrestricted congressional power. The same 5-4 majority 264 has written the
opinions in New York, Lopez, Seminole Tribe, and Printz, and it is only a matter of time before the rationale
in Seminole Tribe is extended to the Tenth Amendment as a limit on the Spending Clause. 265 Substantive
federalism presents the argument that the Tenth Amendment will be used in much the same manner as the
Eleventh Amendment was used in Seminole Tribe. If a core principle of state sovereignty will be encroached
upon by an Article I power, the Tenth Amendment prohibits the intrusion. 266 On the other side of the coin,
Congress must look to the Tenth Amendment and ask whether its proposed legislation will impinge upon
principles of federalism. If substantive federalism can operate to block congressional action under the
Commerce Clause, then it can also curtail the Spending power. 267
SDI 2008 20
WHAM! States/Fism Core

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, 1995
The prevailing wisdom is that the Supreme Court should abstain from enforcing constitutional limits on
federal power for reasons of judicial competence and because the Court should spend essentially all its
political capital enforcing the Fourteenth Amendment against the states instead. This view is wrong. First, the
rules of constitutional federalism should be enforced because federalism is a good thing, and it is the best
and most important structural feature of the U.S. Constitution. Second, the political branches cannot be
relied upon to enforce constitutional federalism, notwithstanding the contrary writings of Professor Jesse
Choper. Third, the Supreme Court is institutionally competent to enforce constitutional federalism. Fourth,
the Court is at least as qualified to act in this area as it is in the Fourteenth Amendment area. And, fifth, the
doctrine of stare [*831] decisis does not pose a barrier to the creation of any new, prospectively
applicable Commerce Clause case law. The conventional wisdom is that Lopez is nothing more than a
flash in the pan. 232 Elite opinion holds that the future of American constitutional law will involve the
continuing elaboration of the Court's national codes on matters like abortion regulation, pornography, rules
on holiday displays, and rules on how the states should conduct their own criminal investigations and trials.
Public choice theory suggests many reasons why it is likely that the Court will continue to pick on the states
and give Congress a free ride. But, it would be a very good thing for this country if the Court decided to
surprise us and continued on its way down the Lopez path. Those of us who comment on the Court's
work, whether in the law reviews or in the newspapers, should encourage the Court to follow the path on
which it has now embarked. The country and the world would be a better place if it did. We have seen that a
desire for both international and devolutionary federalism has swept across the world in recent years.
To a significant extent, this is due to global fascination with and emulation of our own American
federalism success story. The global trend toward federalism is an enormously positive development
that greatly increases the likelihood of future peace, free trade, economic growth, respect for social and
cultural diversity, and protection of individual human rights. It depends for its success on the
willingness of sovereign nations to strike federalism deals in the belief that those deals will be kept. 233
The U.S. Supreme Court can do its part to encourage the future striking of such deals by enforcing
vigorously our own American federalism deal. Lopez could be a first step in that process, if only the
Justices and the legal academy would wake up to the importance of what is at stake.
SDI 2008 21
WHAM! States/Fism Core

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, 27
Cap. U.L. Rev. 529, ln
Federalism is “a constitutional principle involving a distinctive territorial division of powers, usually a
special 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 law
centers on the division of authority between the federal and the state governments,” 4 or as the “dispersion of
political power,” 5 or “a system of authority constitutionally apportioned between central and regional
governments.” 6 The Constitution sets forth the boundaries of federalism with the enumeration of Congress’
powers in Article I, Section 8; the undefined powers implied by the Necessary and Proper Clause; 7 the
General Welfare Clause; 8 the Supremacy Clause; 9 and the Tenth Amendment’s reservation of powers to the
states “or to the people.” 10 By defining to whom powers not delegated are reserved, the Tenth Amendment
provides “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 the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” 12
This amendment has been the rallying cry for devolutionists in the political branches concerned with
excessive federal power. Moreover, the Tenth Amendment’s reemergence in constitutional decisions has
not gone unnoticed by Supreme Court watchers. The Court seems to be reestablishing itself as the
“umpire of federalism,” 13 a role it all but abdicated in Garcia v. San Antonio Metropolitan Transit
Authority 14 when it told the states they could find better constitutional protection from the “procedural
safeguards inherent in the structure of the federal system.” 15 [*531] In a series of recent cases-U.S. Term
Limits, Inc. v. Thornton, 16 United States v. Lopez, 17 and Printz v. United States 18 -the Court reversed its
thinking in Garcia and is umpiring the federal system once again. More importantly, the Court appears to
be 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 Term
Limits with United States v. Lopez.” 19 It is possible to add the recent Printz decision to such an analysis
because the same factions within the Court, with respect to federalism, formed to limit federal power
once again.
SDI 2008 22
WHAM! States/Fism Core

Ext – Federalism NB
( ) The Lopez precedent is critical to reinvigorate federalism
Steven G. Calabresi, Associate Professor, Northwestern University School of Law. “A Government of Limited
and Enumerated Powers,” Michigan Law Review December, 1995
The Supreme Court's recent decision in United States v. Lopez 2 marks a revolutionary and long overdue
revival of the doctrine that the federal government is one of limited and enumerated powers. After
being "asleep at the constitutional switch" for more than fifty years, 3 the Court's decision to invalidate an
Act of Congress on the ground that it exceeded the commerce power must be recognized as an
extraordinary event. Even if Lopez produces no progeny and is soon overruled, the opinion has shattered
forever the notion that, after fifty years of Commerce Clause precedent, we can never go back to the
days of limited national power. The Lopez Court has shown us that we can go back, if we want to, so long
as: 1) we can figure out a workable theory of the limits on the federal commerce power; 2) we can agree on
the propriety of vigorous judicial review in federalism cases; and 3) we can take proper account of the
important reliance interests that have accrued around certain key precedents decided in the past half century.

( ) Extending the Lopez precedent restores federalism


Steven G. Calabresi, Associate Professor, Northwestern University School of Law. “A Government of Limited
and Enumerated Powers,” Michigan Law Review December, 1995
The very real danger is that the Supreme Court will end up conferring legitimacy on congressional and
presidential usurpations of state power that might be resisted more vigorously in the absence of federal
judicial review. The advantages of constitutional federalism will not be obtainable if the Court hands
down decisions like Lopez only once every ten years. National judicial umpiring of federalism
boundaries will be useful only if the courts invalidate usurpations with some frequency, thus justifying
the public confidence that the judiciary really is doing its duty in this category of cases.

( ) The counterplan is a symbolic victory for federalism


Ernest Young, Law Professor, University of Texas, TEXAS LAW REVIEW, November 2004, pp. 135-6
The structure of the Court's current Commerce Clause doctrine bears this conclusion out. The Court has
conceded that the national economy has become integrated to the extent that there is no meaningful
distinction between intra-and inter-state commerce; rather, there is just "commerce." And the Court has also
eschewed any effort to compartmentalize the various forms of economic activity, as it once sought to
distinguish between "commerce" and "manufacturing" or "agriculture." Now all of these things are
"commerce"; that term, the Court has made clear, comprehends all "economic activity." Nonetheless, it is
important to maintain some enforceable limit on the Commerce Clause. Precisely because these cases
are so high profile, they play an important symbolic role. As I have already suggested, they may serve an
important process function of reminding Congress to consider the limits of its powers when it acts. At
the same time, limits on the Commerce Clause are closely linked to the states' autonomy; those limits,
after all, preserve a zone of regulatory authority that Congress may not preempt. This is true even
though the particular statutes at issue in Lopez and Morrison were not preemptive - that is, they did not
forbid parallel state legislation on the same subjects. If Congress were to attempt to supplant state autonomy
to make regulatory decisions over physician-assisted suicide or gay marriage, for example, Lopez and
Morrison would likely offer the most promising basis for challenging such legislation.
SDI 2008 23
WHAM! States/Fism Core

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 considerable
change in Miranda doctrine, but not a complete evisceration of Miranda. Neither Warren nor Rehnquist got to
have his first-best preference. What they did get was a second-best approach in which the suspect must be
given basic information as to his rights and has the power, by making (and sticking to) an unequivocal
request for counsel, to stop all questioning. Of course, the police have ample latitude to use persuasion or
clever, noncoercive means to cause suspects not to exercise that power and, ultimately, to make incriminating
statements that can be used against them at trial. n213 After Dickerson, it would appear that Miranda law is
finally at an equilibrium that almost all of the Justices - including supporters and critics of Miranda - can
accept, as shown by the fact that seven of the nine Justices signed onto without comment an opinion
reaffirming both Miranda and all of the limitations and exceptions adopted over the ensuing three decades.
n214 This is the advantage of reactivism - it provides an effica-cious means by which a Court that
fundamentally 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 the
unpleasant consequences of overruling that have historically made Justices so reluctant [*1112] to
overrule even the most indefensible decisions. n215 Thus, the law gets "fixed" in a way that avoids sharp
doctrinal shifts.

( ) The court can issue narrow rulings without overruling past precedent
Kenneth J. Vandevelde, Thinking Like a Lawyer, April 1, 1996, p.105
Third, the
court may create an exception. This is an explicit, but only partial, repudiation of the prior case.
The prior case remains good law, but it no longer controls all of the situations it once did. The last example
could be used to illustrate this technique as well. Assume that, in the first case, there had not been adequate assurances that the store’s
claim was well founded. In that situation, the second case, rather than overruling the prior case sub silentio, might simply create an
exception—holding that, although prior notice is generally required, subsequent notice is sufficient if the court has adequate assurances
that the store’s claim to a right of seizure is well founded. Obviously, lawyers may differ at times over whether the second case
represents an exception to the first case or an overruling of it sub silentio. To the extent that the two cases are truly different, the second
case may well be carving out an exception to the general rule set forth in the first case. To the extent that the two cases seem
indistinguishable, however, then the conclusion is almost inescapable that the first case has been overruled sub silentio. As has been
seen, lawyers may differ over whether two cases are distinguishable, and thus they may differ over whether the second case created an
exception to, or overruled sub silentio, the first case. Any exception changes the law with respect to those situations
embraced within the exception. Moreover, by defining the factual predicate of the exception broadly, the court can bring large numbers
of cases within the exception. Eventually, the exception may become more widely applicable than the so-called
general rule, with the result that the exception is said to swallow the rule.” At the time it was created, the exception
seemed a minor change in the law. but over time it proved to be a virtually complete repudiation of the earlier
rule. ‘
SDI 2008 24
WHAM! States/Fism Core

AT: No Test Case


( ) The court can always find a case
David Adamany, Professor @ Wayne State, The American Courts: A Critical Assessment, 1990, p.9
Since Congress adopted the Judges Bill of 1925, most cases on the appellate and miscellaneous dockets have
been by writ of certiorari — a request for the justices to hear cases that they may, but are not required, to
hear. Under Supreme Court Rule 17, which gives broad categories of cases that the Court may hear, at least
four justices must agree to hear a case before it is considered by the Court. Some cases on the appellate
docket have been “appeals by right,” certain cases involving the constitutionality of state or federal laws or
state constitutional provisions. By law, the Court was required to hear these cases; but the justices developed
broad discretion by rejecting cases that failed to pose a substantial federal question as defined by the justices.
In 1988, Congress revised the law virtually to eliminate appeals by right, thus giving the justices almost
complete choice about what cases to decide. With more than 5.000 cases pending annually, the
Supreme Court can almost always find a case to raise any policy issue that the justices wish to decide.
Chief Justice Earl Warren apparently asked his law clerks to fmd a case on the Court’s docket that
would allow the justices to overrule a previous decision holding that there was no right for the poor to
have an attorney in every criminal trial. The clerks found such a case, and the Court used it to announce
a new constitutional rule guaranteeing the right to counsel (Danelski and Danelski 1989, 508). The Court
has sometimes gone to great lengths to find the issue it wants to decide. In the landmark case of Mapp v.
Ohio (367 U.S. 617 [1961]), the Court held that illegally seized evidence could not be used in state criminal
trials. But the dissenting justices accused the majority of “reaching out” to find that issue in the brief of
amicus curiae, because the jurisdictional statements, briefs, and oral arguments of the parties had all been
devoted to First Amendment free speech issues. Where the Court cannot find an issue on its docket, it
may order parties to argue an issue that the justices want to consider. Over the strong objection of four
justices that the majority was raising “a question not presented” by the parties, five justices ordered the
parties in Patterson v. McLean Credit Union (485 U.S. 617 [1988]) to rearue the case to determine whether
the Court’s 1976 interpretation of a federal civil rights statute should be reconsidered and changed. The
majority pointed out four previous cases within the past twenty years when the Court had also ordered
reargument to determine whether an earlier decision should be reconsidered and changed.
SDI 2008 25
WHAM! States/Fism Core

AT: ESA DA – No ESA Overturn


( ) The ESA will be upheld on treaty power grounds, even if it violates the commerce
clause
Jacalyn R. Fleming, JD Albany, 2001, “The scope of federal authority,” 65 Alb. L. Rev. 497, p ln
Under Article 2, Section 2 of the U.S. Constitution, the power to make treaties is expressly delegated to the
United States. 167 Treaties made pursuant to the Constitution are "the supreme laws [*519] of the land."
168 In addition, statutes that are both "necessary and proper" to execute a treaty are deemed valid. 169
Thus, treaties and their implementing statutes may preempt state law. 170 For example, in Missouri v.
Holland, 171 the Supreme Court upheld the Migratory Bird Treaty Act against a state's challenge that the Act
was interfering with rights reserved to the states. 172 In so holding, the Court discussed the limits of the
Tenth Amendment and stressed the importance of the national interest at stake. 173 In addition, Justice
Holmes explained the special nature of the treaty-making power: We do not mean to imply that there are no
qualifications to the treaty-making power; but they must be ascertained in a different way. It is obvious that
there may be matters of the sharpest exigency for the national well being that an act of Congress could not
deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters
requiring national action, "a power which must belong to and somewhere reside in every civilized
government" is not to be found... . [especially] where the States individually are incompetent to act. 174 The
Court further explained that the Constitution should not be read as a static document but as an organism that
could evolve with a changing nation. 175 A national solution was needed to protect the great value of
migratory birds and the Court refused to find "some invisible radiation from the general terms of the
Tenth Amendment" to hamper national action. 176 In addition, the Court began the process of chipping
away at the states' power over wildlife by explaining that wild birds belong to no one, 177 while also [*520]
recognizing that "but for the treaty" the state could regulate the subject itself. 178 The authority of ESA is
based on federal treaties. Section 2 of the ESA acknowledges Congress's pledge to the international
community to protect species from extinction. 179 One express purpose of ESA is to "achieve the purposes
of the treaties and conventions set forth." 180 Six treaties are specifically listed in the statute, in addition
to a general reference to "other international agreements." 181 One of the named treaties is the
Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (Western
Convention). 182

( ) ESA won’t be overturned – Court will find it constitutional under both the commerce
clause and the treaty power
Jacalyn R. Fleming, JD Albany, 2001, “The scope of federal authority,” 65 Alb. L. Rev. 497, p ln
Congress's authority to enact the ESA under the Commerce Clause has been questioned, particularly in the
context of wholly intrastate species, because it is unclear how the taking of an endangered species could have
a substantial effect on interstate commerce. The Supreme Court, however, has held some activities, such as
the growing of homegrown wheat, to be within the realm of interstate commerce due to the aggregate effects
of the activity. 292 The question remains whether the Supreme Court will require that the regulated activity
itself be commercial, but even if so, the economic and commercial nature of protecting endangered
species and maintaining biodiversity should not be difficult to defend. All citizens depend on these species
for food, medicine, and every other economic measure independent of minerals. Biodiversity is an untapped
economic potential. As a renowned biologist has explained, "the more the living world is explored and
utilized, the greater will be the efficiency and reliability of the particular species chosen for economic use."
293 Someday the nation may come to appreciate fully the harm resulting from the loss of biodiversity, and
seek to prevent further loss. The ESA may be upheld as constitutional, even without Commerce Clause
authority. As an issue of critical national and economic concern, endangered species protections fall well
within the treaty power of Congress, and the ESA is a necessary and proper statute adopted domestically to
implement provisions of treaties with other nations. Consequently, the ESA is a valid act of Congress under
the treaty power and thus may preempt state and local laws to the extent local laws conflict with the ESA
pursuant to the Supremacy Clause.
SDI 2008 26
WHAM! States/Fism Core

AT: ESA DA – ESA Bad Turn


( ) ESA is on-balance worse for species – empirics prove it doesn’t stop extinction, and the
parts that would be struck down provide economic incentives to destroy habitat, resulting
in net losses
Jonathan H. Adler, Assoc. law Prof @ Case Western, Jan. 2005, “Judicial Federalism,” 90 Iowa L. Rev. 277, p ln
The Endangered Species Act ("ESA") is the federal regulatory statute most at risk under the Court's
Commerce Clause jurisprudence, but it would be a mistake to assume a threat to the Endangered Species
Act necessarily poses a threat to the survival of endangered species. Enacted in 1973 to save species from
the brink of extinction, the ESA has hardly been a success. In over thirty years, fewer than forty of over
1,000 species have been delisted as endangered or threatened. 553 In this time more species have been
delisted because they went extinct or never should have been listed as endangered in the first place than
have been legitimately "recovered" due to the Act. 554 Among the various factors that contribute to the
ESA's ineffectiveness as a conservation tool are the very regulatory strictures most at risk to
Commerce Clause challenge. Section 9 prohibits the "take" of endangered species, including significant
modification of listed species' habitat. The presence of a listed species can freeze the use of private land,
barring everything from timber cutting and ditch digging to plowing a field or building a home. In Riverside
County, California, the ESA even prevented private landowners from disking to clear firebreaks on their own
land lest they disturb the habitat of the Stephens' kangaroo rat. 555 Consequently, private landowners are
penalized for owning endangered species habitat. 556 In this fashion, the ESA creates economic
incentives for private landowners to engage in the deliberate destruction of actual or potential wildlife
habitat and to forego or prevent future habitat creation on privately [*460] owned land. 557 Professors
Lueck and Michael report that forest owners respond to the likelihood of ESA regulation by harvesting
timber and reducing the age at which timber is harvested. 558 Such preemptive habitat destruction could
well "cause a long-run reduction in the habitat and population" of endangered species. 559 In some
instances, it is likely that the economic incentives created by the Act result in the net loss of species
habitat. That is, in some cases the ESA may be responsible for more habitat loss than habitat protection.
560 Professors Lueck and Michael are not alone in their findings. A study in Conservation Biology further
reports that just as many landowners responded to the listing of Preble's meadow jumping mouse by
destroying potential habitat as undertook new conservation efforts. 561 It also found a majority of
landowners would not allow biologists on their land to assess mouse populations out of fear that land-use
restrictions would follow the discovery of a mouse on their land. 562 The Fish and Wildlife Service also
acknowledges that its own regulations can lead to habitat loss on private land. In the Pacific northwest, land-
use restrictions imposed to protect the northern spotted owl made private landowners fear the lost use of their
land and that "this concern or fear has accelerated harvest rotations in an effort to avoid the regrowth of
habitat that is useable by owls." 563 Insofar as ESA regulation discourages private land conservation, it is
undermining species conservation efforts. The majority of endangered and threatened species depend on
private land for some portion of their habitat, 564 so by discouraging private land conservation, the ESA
could well have a devastating impact on species conservation efforts. While there is no conclusive
evidence as to the net effect of the ESA on species conservation on private land, there is more than enough
evidence to challenge the prevailing [*461] assumption that limitations on ESA regulation of private land
will result in net harm to endangered species. If courts hold that the Commerce Clause limits federal
regulation of private land, it may even prompt the federal government to adopt alternative approaches
to species conservation that do not produce the same unintended consequences and conserve species in
a more effective and equitable manner. The imposition of federal priorities on unconsenting states can also
have negative environmental results. In many cases, the assertion of federal regulatory authority to advance
environmental goals will safeguard important environmental concerns. But in other cases, federal authority
can prevent states from adopting environmentally preferable alternatives. Federal preemption of more
protective state environmental standards can inhibit more effective environmental protection, as well
as experimentation with new approaches of addressing environmental concerns. 565
SDI 2008 27
WHAM! States/Fism Core

Feds Will Preempt CP


( ) Congress would preempt the counterplan – they regulate energy
Steven Ferrey, Law Prof @ Suffolk, March 2006, Electricity Journal, 19.2, “Renewable Orphans,” p.
sciencedirect
A. Balancing and the ‘‘per se’’ court test The generation and transmission of electric energy is an activity
particularly likely to affect more than one state. Congress could federally preempt energy policy under its
powers over interstate commerce, if it so chose, and often does so. It has reserved certain energy
matters to federal jurisdiction. Under the Federal Power Act of 1935, the federal government exercises
regulatory power over the wholesale power market, while the states are left alone to regulatemost retail
transactions.11 The regulation of utilities is a traditional function of the local police power of the states.12
While the Commerce Clause grants affirmative powers to Congress to regulate in a variety of areas,
the so-called ‘‘dormant’’ Commerce Clause also is interpreted as a limitation on the power of states to
regulate in particular areas. The Commerce Clause provides that ‘‘[t]he Congress shall have the Power . . .
[t]o regulate Commerce among the several States.’’13 In creating this power, the framers sought to ‘‘avoid
the tendencies toward economic Balkanization that had plagued relations among the Colonies and later
among the States under the Articles of Confederation.’’ 14 Although the Commerce Clause is an affirmative
grant of power, the Supreme Court also interpreted it as limiting the states’ ability to ‘‘unjustifiably . . .
discriminate against or burden the interstate flow of articles of commerce.’’15 The construction of the
dormant commerce clause is one of the most litigated environmental and energy issues before the Supreme
Court in the last quarter century.16 State statutes that clearly discriminate against interstate commerce
are routinely found to be impermissible.17 Under the dormant Commerce Clause: This ‘‘negative’’ aspect
of the Commerce Clause prohibits economic protectionism—that is, regula-tory measures designed to benefit
in-state economic interests by burdening out-of-state competitors.18

( ) The federal government will preempt the CP – negating the effect of any state action
Jonathan H. Adler, Law Prof @ Case Western, 2007, 31 Harv. Envt’l. L. Rev. 67, “When is Two A Crowd,” ln
Preemption operates to prevent state regulatory activity. The net effect of federal preemption is often
for there to be less regulation than there would have been otherwise. n70 Federal laws precluding state regulation
of automobile or oil tanker design mean that manufacturers need only comply with one regulatory standard. Federal regulations in such
cases serve as a regulatory "floor" and a regulatory "ceiling" at the same time. In other cases, preemption may serve to ensure that there
is no regulation governing a particular subject matter, where federal law precludes states from adopting particular rules but the federal
government does not adopt rules of its own. n71 Where implied preemption is found, this will typically preclude any state or local
regulation whatsoever. n72 Where Congress explicitly preempts state regulation, however, the scope of the preemption usually will be
limited to the extent provided for in the statutory text. n73 Given that preemption operates to reduce aggregate regulatory burdens, it
should be no surprise that federal preemption of state environmental regulatory standards is often sought by
business interests seeking to establish regulatory uniformity, a "ceiling" on regulatory stringency, or
both. n74 [*85] Federal preemption of state automotive emission regulations, for example, resulted
from lobbying by U.S. automakers fearing the potential for different emissions standards to be adopted
in different states--and believing that federal standards would be less stringent than those developed in
the states. n75 This is not to say that there are not sometimes economic justifications for preempting variable
state standards with a single federal standard, only to note that this pressure for federalization often comes
from industry rather than from environmentalist interests.

( ) State programs will be struck down by the court – they’re used to discriminate against
interstate commerce
Steven Ferrey, Law Prof @ Suffolk, March 2006, Electricity Journal, 19.2, “Renewable Orphans,” p.
sciencedirect
There are serious Constitutional trip-wires lurking before some of innovative state initiatives. While the
many varied state programs create wonderful laboratories for experimentation, only by fostering renewable
energy without Constitutional violations can the energy future be founded on a sustainable base. Some
of the states through these initiatives treat interstate power sales as a piggy bank to subsidize in-state
enterprises, while beggaring their neighbors. The U.S. Supreme Court consistently strikes down as
unconstitutional similar programs involving interstate goods taxed by states so as to provide local
subsidy. This article parses which of the key state renewable energy initiatives commit Constitutional
violations and are not legally sustainable, and how to remedy this so that these renewable programs aren’t
orphaned by legal challenge.
SDI 2008 28
WHAM! States/Fism Core

States Can’t Get Modeled


( ) Attempting to link state programs internationally would make them unconstitutional
under the Compacts Clause – either they don’t solve modeling or the CP is struck down
Robert K. Huffman, lawyer, and Jonathan M. Weisgall, VP at MidAmerican Holdings,Winter 2008, “Climate
Change and the States,” Sustainable Development Journal,
http://www.wcl.american.edu/org/sustainabledevelopment/2008/winter08.pdf?rd=1
However, it is difficult to see how a linked international cap-and-trade framework could be crafted so
as not to constitute a compact or even a treaty, which would be impermissible under Article I, § 10, cl.
1, regardless of the presence or absence of congressional approval. In order to have a properly
functioning linkage between markets, there would need to be guarantees regarding enforceability and
permanence. Without legally enforceable guarantees about the quality of the credits being traded, the
markets are unlikely to succeed. There would be a serious problem, for example, if an offset project in
California created credits that were purchased by a steel manufacturer in France, and California de-linked
itself from the markets. The problem of how the French manufacturer would account for the credits in the
absence of a monitoring or verification mechanism to account for what is happening in California is a
significant one. The only way to ensure the integrity of the credits being traded in the marketplace is to create
a framework that is robust enough to protect all of the parties involved. This would presumably include the
inability to voluntarily leave the program and would be most easily accomplished with some sort of central
emissions registry that aggregates and processes data from all participants. These components are almost
certain to create a compact under the Compacts Clause, which would then require congressional
approval in order to be valid.
SDI 2008 29
WHAM! States/Fism Core

Federal Key – General


( ) States are worse for alternative energy than the feds – hostility, lack of resources, and
patchwork increases compliance costs
Barry G. Rabe, University of Michigan, November 2002, Pew Center, “Greenhouse and Statehouse,”
http://www.pewclimate.org/docUploads/states_greenhouse.pdf
There are, however, significant limitations facing any long-term strategy that relies primarily on the
initiative of states. Many cases of state policy innovation in climate change are matched by other states that
have proven indifferent or hostile to the issue. In turn, limited fiscal resources deter innovation,
particularly given the current fiscal distress facing many states. Moreover, the very notion of a purely
decentralized approach raises basic questions of efficiency. A potential tapestry of standards and
programs that varied markedly from state to state could serve to heighten compliance costs for
regulated parties as opposed to a more uniform approach. Nevertheless, the recent evolution of state
policy poses a fundamental challenge to conventional thinking about the design of and political prospects for
climate change policy in the United States and, in the process, offers a variety of policy options for possible
adoption at the national level.
SDI 2008 30
WHAM! States/Fism Core

Federal Key – Environment


( ) Federal control of environmental regulation is key – states have failed, stops race to the
bottom, and checks interstate spillover
Dan L. Gildor, JD Berkeley, 2005, “Preserving the Priceless,” 32 Ecology L.Q. 821, p ln
Though much ink has been spilled on this question, 11 the answer is quite simple: there is a pressing need
for federal regulation of the environment, not only to make up for the inability of states to regulate the
environment themselves, but also to control for and prevent the "race-to-the-bottom" 12 and to
prevent interstate spillover effects. 13 [*825] These reasons, in fact, were the exact reasons Congress set
out when it adopted the bulk of the federal environmental statutory regime. For instance, in considering
"federalizing" air and water policy, it is clear from the legislative history that Congress was concerned with
controlling interstate spillovers and preventing races to the bottom. 14 It is also clear, however, that Congress
was specifically motivated by the inability of the states to otherwise perform. 15 For instance, the Senate
Subcommittee on Air and Water Pollution heard testimony that "the states simply have not moved." 16
Regarding air quality, Representative Vanik noted, "to date, [*826] the States have been left to establish
their own air quality standards. In all too many areas, there has been delay and foot dragging - and
ridiculously low standards set to accommodate local industries and interests." 17 It was necessary,
therefore, to federalize environmental policy. Revisionist economic theorists led by Professor Richard
Revesz, however, have challenged these rationales for federal environmental regulation and advocate,
instead, that environmental regulation devolve back to the states. 18 Importantly, though, the revisionists'
arguments fail to account for the general and continuing ineffectiveness of the states in regulating the
environment. 19 For instance, an analysis of state endangered species laws demonstrates that these acts
"fall far short of what is needed to adequately protect a state's imperiled species." 20 Likewise, an
analysis of state efforts toward attaining the Clean Air Act's goals found that only three states were "steadily
making progress." 21 By contrast, federal environmental law is generally considered quite effective. 22

( ) Federal control over endangered species is key to effectiveness – centralization,


uniformity, resources, and checking race to the bottom
Jacalyn R. Fleming, JD Albany, 2001, “The scope of federal authority,” 65 Alb. L. Rev. 497, p ln
Despite this history of deference to Congress, however, the Supreme Court is currently taking a hard look at
whether the federal law in question is within Congress's constitutionally delegated authority. 11 Yet in the
midst of this states' rights movement, one should remember that there is a need for a national policy in key
areas beyond national defense. For instance, federal authority is needed for issues that require a centralized
solution due to their national significance. Environmental regulation is one such area. The centralization of
environmental laws has numerous benefits, including uniformity and an increase in the pool of
resources available to resolve the [*499] problem. 12 Similarly, federal laws are needed to provide
minimum standards because states may face strong disincentives to enact or enforce environmental
laws. 13 For example, states may focus on the monetary benefits from the added taxes and jobs gained from
allowing development while ignoring the less obvious environmental effects such as cumulative impacts. 14
In turn, this may result in a "race to the bottom," where each local jurisdiction chooses short-term
economic gain over the long-term health of the nation and the planet. 15
SDI 2008 31
WHAM! States/Fism Core

Perm Solves Best


( ) Coordination between state and federal governments solve alternative energy best
Sanya Carleyolsen, PhD candidate Public Policy @ UNC, Summer 2006, “Tangled in the Wires,” 46 Nat.
Resources J. 759, ln
A transition to wide-scale RE deployment will require continued government efforts to develop feasible
and consistent economic incentives, comprehensive national- and state-level energy plans, and a stronger
regulatory environment. State governments need to enhance their energy plans with tighter environmental
targets and more extensive initiatives. Local governments need to expand the scope of planning initiatives to
include policies that protect, legitimize, and advance RE development. All levels of government and public
actors need to coordinate RE efforts in order to advance a more effective, cohesive movement.
SDI 2008 32
WHAM! States/Fism Core

California Economy DA 2AC


A. The California economy is on the brink because of budget deficits – the plan would
force shortfalls or raising taxes, ensuring there’s no change a budget gets passed
Evan Halper, LA Times, 7-1-2008, “State will pay,” ln
Legislators are making little progress closing a $15.2-billion shortfall. Democrats demand new taxes.
Republicans say that is out of the question. Meanwhile, their inability to strike a deal threatens millions
of Californians who rely on the government for healthcare and other services. Budget delays are not
unusual. But the consequences will be particularly harsh this year. Many of the healthcare clinics and
other service providers that have used private loans to get by during past budget stalemates are unlikely to
have easy access to such cash this year, as a result of the ongoing credit crunch brought on by the
mortgage crisis. Independent service providers aren't the only ones that could soon be scraping to find
money. Short-term bonds that finance officials rely upon to replenish state coffers cannot be sold without a
budget in place, and getting them to market takes at least a month. The state may have to turn to a
syndicate of investment banks for short-term financing, on terms that could prove costly, said H.D. Palmer,
deputy director of the state Department of Finance. The financing could cost $140 million more than bond
borrowing would have, he said. "In this budget environment," he said," I can think of a lot better uses
for that money." Despite the grim state of affairs at the Capitol, Gov. Arnold Schwarzenegger and
lawmakers Monday played down their failure to get a budget together and the dim prospects of reaching a
deal soon. "I don't know at what stage they are in at this time," Schwarzenegger said at a news conference. "I
know one thing, they are all working. . . . Everyone knows we are short on time. I think everyone knows it
is a complicated, difficult budget." Schwarzenegger, who has been playing only a minor role in budget
deliberations of late, turned the microphone over to Assembly Speaker Karen Bass. "We have been
working," she said. "We spent four hours yesterday working." Democrats in both houses have released budget plans that call for as
much as $11 billion in new taxes. But so far they have not identified which taxes they would like to raise. Bass demurred again Monday.
"We will see what happens as the process moves forward this week," she said. The governor later joked about his optimism that the state
will not run out of cash by pulling out a personal money clip full of bills. "I still have some left," he said. Not all Republicans were in
such good spirits. "Until we get to a spot where Democrats realize that taxes are not going to work, it will
be tough to move the budget forward," said Assembly Republican Leader Mike Villines of Clovis. Credit
agencies will be watching closely: California has the second-lowest credit rating among states in the
country, and some economists say a downgrade could be coming. The last time the state's creditworthiness was
downgraded was during the budget crisis of 2003, when its bond ratings fell to nearly junk status. The shortfall lawmakers faced then
was roughly the size it is now.

B. California is key to the US economy


Nutting, 11-9-2007, MarketWatch, “Could California be in recession?” lexis, tk
The state of California isn't taking any chances. Gov. Arnold Schwarzenegger has ordered state agencies
to plan for a 10% cutback in their budgets for next year, figuring that tax receipts could fall significantly
along with home prices. California matters to the national economy, but trends in California do not
necessarily presage what will happen nationally. About one in every eight Americans live in California. Its
state gross product was $1.6 trillion in 2005, representing about 13% of the nation's economic output,
slightly more than its 12% share of the population. In 2006, the median household income in California
was $54,385, compared with $48,023 nationally. Between 1997 and 2005, California household incomes
grew 4.4% annually, the fourth fastest growing state. Some of that growth came from the technology boom of
the late 1990s, and some came from the housing boom, which, in just five years, doubled average home
prices in the state to about $500,000. Now, of course, home prices are falling nationally, but especially in
California. California's economy has a lot going for it. It's incredibly diverse, from the highest of high
tech and Hollywood to the basic old-economy industries of agriculture, retail and manufacturing.
California is by far the biggest farming state, with its annual output nearly three times its nearest
competitor, Texas. California's agricultural output - nearly 20% of the nation's total -- matches the output of
all the Farm Belt states combined. California accounts for about 11% of U.S. manufacturing output by
value and 13% of construction. California accounts for 19% of the country's information services -
including media and software. And it contributes 12% of the national output of financial services, trailing
only New York in the financial sector.
SDI 2008 33
WHAM! States/Fism Core

California Economy DA – Links


( ) The counterplan would force California to raise taxes to pay for it – hurting their
economy
Rich Saskal, Bond Buyer, 7-10-2008, “California Democrats,” ln
The budget conference committee approved the plan on a party-line vote, with Republicans voting
"no." A final budget won't be so simple, because minority Republican votes are needed in each house to
obtain the required two-thirds majority. GOP lawmakers have said they will stand firm against tax
hikes. "As the conference committee concluded tonight, I have to say that I am disappointed," said Sen. Bob
Dutton, ranking Republican on the Senate Budget Committee. "With the California economy struggling,
now is not the time to raise taxes."

( ) The counterplan would raise taxes to cover budget deficits in California – jacking their
economy
States News Service, 7-10-2008, “Maze Reacts,” ln
Assemblyman Bill Maze (R-Visalia) reacts to the Democrats proposed billions in tax increases on
businesses and high earners to help bridge the California's budget shortfall. "California already has
the fourth-highest tax burden in the nation," said Assemblyman Maze. "We pay enough taxes and with
our economy struggling this is the wrong time to raise taxes, which will only hurt our families and kill
jobs in California. I cannot believe that during these tough economic times the Democrats want to
solve the budget shortfall on the backs of businesses and California's citizens."

( ) California can’t afford to spend more money – they’d have to raise taxes
Dan Walters, Fresno Bee, 7-6-2008, “State faces budget crisis,” ln
The budget, meanwhile, has become a markedly more complex document, largely because Proposition 13,
passed by voters in 1978 to slash local property taxes, thrust much more responsibility for financing schools
and local services onto the state. And Proposition 98, a school finance measure enacted in 1988, made the
process even more complex and rigid. Its effects were just beginning to be felt when Wilson was governor.
Finally, the fiscal problems that troubled those other governors primarily resulted from economic recessions,
but today's crisis primarily stems from voters and politicians spending more money than the revenue
system can produce, even in a good economy. It is what those in the Capitol call and what California
Forward identifies as a "structural deficit." This is, in brief, a unique situation and what any governor did in
the past means absolutely nothing today. Until California resolves its underlying crisis of governance, the
budget crisis will continue to bedevil us.

( ) California is key to the economy


Katherene Hansen, Exec. Dir. Los Angeles FEB, 6-26-2008, “Locality Pay,” CQ, ln
Given the regional complexity, national economic significance and large population, California is
critical to the security and economic health of the nation. Many of the Nation's most critical
infrastructures exist in California's high-cost cities. To protect them and the millions of residents in these
mega-cities, the full complement of Federal agencies is needed to keep them safe and secure. However there
is no incentive within the existing Federal pay system for employees to serve in these high- cost cities.
SDI 2008 34
WHAM! States/Fism Core

Federalism Link Turn 2AC


( ) The counterplan tanks federalism by over-delegating federal powers to the states
Stephen G. Calabresi, Law Prof @ NWU, March 2001, Annals of the American Academy of Political And Social
Science, v574, p. 33
I fully agree that the Court ought to approach enforcement of the commerce clause and Section 5 power with
restraint and that only in cases of egregious overreaching should acts of Congress be struck down.
Congressional efforts to enforce the commerce power or Section 5 deserve to be given the benefit of the
doubt both because of Congress’s greater information about the real world and because Congress is a coequal
interpreter of the Constitution to the Supreme Court. But giving Congress the benefit of the doubt does not
mean rubber-stamping everything that Congress has tried to do, as happened from 1937 to 1995.
Sometimes in extreme cases, it is valuable for the Court to remind Congress of the constitutional values
of federalism, and this is what I think happened in Lopez, City of Boerne, and Morrison. In each of these
cases, Congress was attempting novel federalism solutions to problems that a majority of the states
seemed to be handling very well. It was accordingly appropriate for the Court to slow Congress down by
forcing it to take a second look at what it had in haste done in each of these areas (Calabresi 1995).

( ) Sudden court extension of Lopez triggers a social backlash that undermines federalism
Steven G. Calabresi, Associate Professor, Northwestern University School of Law. “A Government of Limited
and Enumerated Powers,” Michigan Law Review December, 1995
First, I do not think the federal courts can ignore the powerful reliance interests that have grown up
around the statutes enacted during and after the New Deal in reliance on a broader understanding of
the Commerce Clause. Congress itself can repeal statutes for federalism reasons, as it is now doing, without
worrying about considerations of precedent. The legislative process is such that new laws can be phased in
over a period of many years thus accommodating reliance interests quite readily. The judicial process is much
more rigid, however, and sudden mass overrulings would cause social disruption that the Court could do
little to soften. The likeliest social reaction, in my view, to a sudden judicial abrogation of the New Deal
would be a constitutional amendment formalizing the currently flawed case law understandings of the
scope of congressional power. This result wrongly would upset the public while setting back if not
destroying the cause of federalism. I therefore think it would be a grave mistake for the Court to
overrule abruptly key New Deal precedents, many of which even may be defensible under the functional
theory of federalism set out in Part I.

( ) Enforcing Lopez won’t restore federalism


H. Geoffrey Mouton, Law Prof, April 1999, Minnesota Law Review, ln
Despite the Court's apparent nostalgia for a dramatically smaller national government, no judicially
enforced federalism doctrine is going to undo the last quarter of the nation's history. And while cases
like New York, Lopez, and Printz may on occasion stimulate important debate, such as the examination
of federal criminal law that has followed Lopez, they will never have more than the most marginal
relevance to the allocation decisions that matter most. Those who truly believe in the instrumental values
of federalism should therefore focus not on persuading courts to undo congressional "mistakes," but rather on
promoting wise institutional choice in the political process.
SDI 2008 35
WHAM! States/Fism Core

Lopez Will Be Rolled Back – Congress


( ) Congress can override the Courts devolution
Jack Goldsmith, Prof @ Chicago, November 1997, Virg. L. Rev., ln
Nonetheless, these concerns need not affect the legitimacy of the federal common law of foreign relations.
Although federal courts might be generally unsuited to make federal foreign relations law on both legitimacy
and competence grounds, the adverse consequences of state-by-state regulation in the face of federal political
branch silence might be worse. States suffer from many of the same disabilities as federal courts in this
context. Moreover, federal courts, in contrast to the states, have independence from local political processes
and, as a branch of the national government, are likely to be more sensitive to national foreign relations
interests. Even in the absence of strategic behavior by the states, one might think that, all things being equal,
suboptimal but uniform federal judge-made regulation of foreign relations is preferable to the nonuniformity
inherent in state-by-state regulation of a foreign relations issue. 213 Finally, the federal common law of
foreign relations is designed to protect political branch prerogatives in foreign relations that the
political branches themselves are structurally unsuited to protect. Any remaining concerns about the
legitimacy or competence of the federal common law of foreign relations are thus mitigated by the
political branches' ability to override judicial errors in the development of such law.

( ) Congress will roll back contravening judicial decisions


Steven G. Calabresi, Associate Professor, Northwestern University School of Law. “A Government of Limited
and Enumerated Powers,” Michigan Law Review December, 1995
Moreover, even when the Court is determined to resist the policy objectives of a lawmaking majority,
Dahl demonstrates that "Congress and the president do generally succeed in overcoming a hostile Court
on major policy issues." 193 Dahl shows that when the Court strikes down a major national policy
initiative, Congress and the President typically repass the law in defiance of the Court. These
arguments, confirmed in recent scholarship, 194 constitute an important rebuttal to those who profess
fear that national judicial activism someday might lead to a dangerous weakening of the constitutional
powers of the national government.

( ) Most Lopez rulings are overturned


Journal of Criminal Law and Criminology, Fall 2003, p. 770
Unfortunately for the judiciary, despite Lopez and its progeny, the drive to federalize crimes continues.
And though Lopez has been used to challenge many of these federal criminal laws, "to date, [Lopez]
has been of assistance to few defendants." In fact, as of the summer of 1998, of the 400 Lopez challenges
made to federal statutes, only three had been upheld.
SDI 2008 36
WHAM! States/Fism Core

Lopez Will Be Rolled Back – Executive


( ) Executive can rollback Lopez decisions
Jack Goldsmith, Prof @ Chicago, November 1997, Virg. L. Rev., ln
The executive branch has special monitoring capabilities and preemptive lawmaking powers when
foreign relations is at issue. As for monitoring, it is inconceivable that the executive branch will be
unaware of a state's action that adversely affects U.S. foreign relations or unduly burdens the federal
government's ability to conduct foreign relations. The President is the primary agent of U.S. foreign
relations and the primary organ of communication with foreign governments. 266 And the executive branch
receives all foreign government complaints about state activity. When the executive branch identifies harmful
state foreign relations activity, it is much better positioned than Congress to address it. Foreign relations is
(and is perceived to be) the President's responsibility. He is thus more accountable for foreign relations
problems than Congress, and has a greater interest in redressing state-created foreign relations difficulties.
The President also has a massive executive branch bureaucracy at his disposal to monitor and redress
such difficulties. Importantly, the executive branch's ability to respond to these difficulties is not burdened
by collective action problems to nearly the same degree as Congress. 267 In addition, the President's unique
role in foreign relations enables him to redress unacceptable state foreign relations activity in a variety of
ways. First, he exercises special influence on the congressional foreign relations agenda and the content of
foreign relations legislation. 268 Second, he or one of his subordi- [*1685] nates can communicate directly
with states on behalf of the federal government in order to influence or alter the offensive state activity. 269
Sometimes this communication is nothing more than an informal telephone call to the proper state or local
official. Other times the State Department will send a formal letter to the state urging it to cease its offensive
behavior. And sometimes the executive branch will file an amicus brief in state court. 270 These means of
"informal" presidential control are often employed and often, though not always, successful in changing the
offending state behavior. 271 Third, the President has limited but important federal lawmaking powers
that enable him, on his own, to preempt state law that adversely affects the nation's foreign relations or
the political branches' ability to conduct such relations. Some of these powers derive directly from the
Constitution itself. For example, incident to his power to recognize foreign governments, 272 the President
can enter into international agreements that preempt state law. The most famous instance is the Litvinov
Agreement, which officially recognized the Soviet Union and assigned all Soviet property in the United
States to the federal government. This "executive agreement" preempted inconsis- [*1686] tent state
property and creditor law. 273 It also ended state court uncertainty about the domestic effect of the Soviet
Union's extraterritorial confiscations. 274

( ) The President can quickly roll back the counterplan


Jack Goldsmith, Prof @ Chicago, November 1997, Virg. L. Rev., ln
Much more significant than the President's constitutionally derived powers are the broad and numerous
foreign relations lawmaking powers delegated to the executive by Congress. 275 Congress has delegated
these powers to the executive precisely because the President has access to superior expertise and
because structural advantages allow the President to take quick and decisive action. The broadest such
delegation is the International Emergency Economic Powers Act ("IEEPA"). 276 Presidential lawmaking
power under IEEPA is triggered by "any unusual and extraordinary threat, which has its source in whole or
substantial part outside the United States, to the national security, foreign policy, or economy of the United
States." 277 IEEPA enables the President to respond quickly to suspend or invalidate state law whose
application would interfere with or impede the federal government's conduct of foreign relations. The
best known example is President Carter's invocation of IEEPA to lift state-law judicial attachments on Iranian
assets and suspend private (largely state-law governed) claims against Iran as part of the deal to secure the
release of the hostages in Iran. 278
SDI 2008 37
WHAM! States/Fism Core

ESA DA 2AC
A. Striking down congressional power to regulate energy would require overturning all of
Congress’s powers under the Commerce Clause
Peter Moyers, Princeton, Spring 1998, “Drug Legalization,” Princeton U.L.J., v. 11, iss. 2,
www.princeton.edu/~lawjourn/Spring 98/
Wickard v Filburn (1942) affirmed the decision in NLRB and granted additional power. The respondent in the case was found
guilty of violating a law prohibiting the production of more than 11.1 acres of wheat. Even though he did not sell his extra wheat, the
Court found that the respondent along with others could possibly substantially affect the wheat market were they all to violate the quota.
Although Filburn’s acts did not themselves substantially affect interstate commerce, many "Filburns" could do so. The risk of substantial
effect was enough for congressional regulation. Therefore, Congress’ interest in stabilizing prices on the wheat market required farmers
not to exceed the quota, even if the surplus was not used for commercial purposes. This decision granted Congress the power
to regulate non-commercial, local activity if it presents the risk of "substantial economic effect on interstate
commerce." These cases bring us to the most recent decision of U.S. v Lopez (1995). In the majority opinion, Chief Justice Rehnquist
notes that three categories of activity may be regulated by Congress under the power of the Commerce Clause. First, the channels of
interstate commerce are open to congressional regulation. Second, Congress may regulate the persons or things, the instrumentalities, of
interstate commerce. Third, an activity may be regulated if it has a substantial relation to interstate commerce, or more specifically,
substantially affect interstate commerce. In Lopez, the government argued under the third category, attempting to show that the presence
of firearms on school grounds has substantial relation to interstate commerce. The Court found the argument to lack force, asserting that
the definition of substantial relation or effect the government was putting forth would transform Commerce Clause power into "a general
police power of the sort retained by the States." This decision does not categorically reject the federalization of police powers but rather
affirms the doctrine of substantial relation or effect. The Court was unwilling to build "inference upon inference" to see a substantial
economic effect; the presence of firearms on school grounds was found to be too far removed from interstate commerce to come under
the third category. The Court would be faced with a similar case in the congressional policy of outlawing the use,
sale and possession of drugs. In order for the congressional policy to prevail, it must show that the possession
and use of drugs, sanctioned by the state policy, substantially affect interstate commerce. However, in order
to be consistent with Lopez and Wickard, whose doctrine of substantial risk of effect has never been
overturned, and in the absence of empirical evidence, the Court must recognize that even the risk of an
activity substantially affecting interstate commerce is sufficient for legitimate congressional regulation.
I find the activities sanctioned by the state policy to be of sufficient risk of substantially affecting interstate commerce to find the
congressional policy a constitutional regulation denying the practice of the activities sanctioned by the initiative.
***Continues***
The state policy demonstrates the risks involved in allowing states, in the case of drug policy, to pursue different policies. As I argue
above, the legalization of drugs within one state almost certainly will substantially burden the effective pursuit of drug use and
possession prevention in other states. A neighboring state would have to create nearly impervious borders in order to remain faithful to
its anti-drug policy; one wonders if the free flow of people to and from the state, let alone commerce, would remain a possibility. By
upholding the constitutionality of the congressional policy, the Court would recognize and condemn the substantial burden a state
pursuing an independent drug policy places on neighboring states. Admittedly, to the casual observer, the Court’s decision would appear
to be a significant usurpation of states’ police powers and a step toward a unitary system. I agree that the Court ought to be wary of
assaults on federalism. The decision should not be looked upon by future Courts as a precedent for allowing the nationalization of police
powers, but rather as an affirmation of Congress’ power to regulate any activities, including crimes, that have a substantial effect on
interstate commerce. In this case, the state policy creates a risk of substantially affecting interstate commerce. To deny Congress’
power in this case would be to overturn nearly all Commerce Clause precedents as well as Marigold.
And to overturn Marigold would be to all but eliminate any non-enumerated means Congress requires to
pursue its powers and duties. Although to find for the federal government might blur the line of federalism,
to find for the state would strip Congress of its power, granted in Marigold, to act beyond its enumerated
means to pursue its enumerated duties. The latter I do not think our system can tolerate.
SDI 2008 38
WHAM! States/Fism Core

ESA DA 2AC
B. That would require striking down the ESA – it’s based on the commerce clause
Mollie Lee, 11-1-2006, Yale L. J., “Environmental economics,” http://goliath.ecnext.com/coms2/gi_0199-
6199333/Environmental-economics-a-market-failure.html
When Congress enacted the ESA, it did so with very little debate and with overwhelming public support.
(11) The environmental movement was at its peak, (12) and a nation of newfound environmentalists was
eager to respond to well-publicized stories about threats to the bald eagle, blue whale, polar bear, and other
"charismatic fauna." (13) Endangered species already received some protection from statutes enacted in the
prior decade, (14) but these statutes were limited in scope, and it soon became apparent that they were
inadequate to prevent further extinctions. (15) Thus, in 1973 Congress adopted the ESA as a comprehensive
approach to protecting threatened and endangered species throughout the nation. Congress relied chiefly on
its Commerce Clause powers in passing the statute, (16) but the legislative history contains no explicit
discussion of this constitutional authority. However, congressional findings and testimony suggest that
Congress understood species extinctions as a problem with both commercial causes (17) and
commercial consequences. (18) The causal link between commercial activity and species extinction is
particularly prominent in the legislative findings for the statute. There, Congress noted that "various
species offish, wildlife, and plants in the United States have been rendered extinct as a consequence of
economic growth and development untempered by adequate concern and conservation." (19) While this
finding suggests that Congress understood economic activity to be a primary cause of species extinction,
Congress did not choose to protect endangered species by directly regulating economic activity. Instead, the
ESA prohibited any activity that would jeopardize the continued survival of threatened and endangered
species.

C. The ESA is critical to prevent species extinctions


Union of Concerned Scientists 06 http://www.ucsusa.org/scientific_integrity/restoring/science-in-the-
endangered.html
Biological diversity provides food, fiber, medicines, clean water, and many other products and services we
depend upon every day. Yet nearly one-third of native species in the United States are at risk of
disappearing. "As children, small creatures endlessly fascinate us; as adults, we can protect them so as to
inspire future children." - Les E. Watling, Marine Ecologist It is clear that the ESA has given new hope for
sustained survival to numerous species that were on the brink of extinction—less than one percent of
species listed under the ESA have gone extinct since 1973, while 10 percent of candidate species still
waiting to be listed have suffered that fate. In addition to the hundreds of species that the Act has protected
from extinction, listing has contributed to population increases or the stabilization of population
declines for more than 30 percent of listed species, as well as the recovery of such signature species as
the peregrine falcon.

D. That causes extinction


Paul Warner, American University, Dept of International Politics and Foreign Policy, August, Politics and Life
Sciences, 1994, p 177
Massive extinction of species is dangerous, then, because one cannot predict which species are expendable to
the system as a whole. As Philip Hoose remarks, "Plants and animals cannot tell us what they mean to each
other." One can never be sure which species holds up fundamental biological relationships in the
planetary ecosystem. And, because removing species is an irreversible act, it may be too late to save the
system after the extinction of key plants or animals. According to the U.S. National Research Council, "The
ramifications of an ecological change of this magnitude [vast extinction of species] are so far reaching that no
one on earth will escape them." Trifling with the "lives" of species is like playing Russian roulette, with
our collective future as the stakes.
SDI 2008 39
WHAM! States/Fism Core

ESA DA – Energy Link


( ) It’s unquestionable that the federal government has the right to regulate energy under
the Commerce Clause – the CP would require eviscerating Congress’s commerce clause
powers
Steven Ferrey, Law Prof @ Suffolk, 4-14-2007, N.Y.U. Envt’l L.J., “Sustainable Energy,” p. ssrn
Energy policy has been a primary domestic news story during the last two years: the Enron scandal,1 terrorist
threats against nuclear power plants,2 the California electric energy market collapse,3 and the August 14,
2003 blackout affecting fifty million people in the eastern United States.4 Electric energy, although seldom
analyzed in the literature (especially compared to the column inches devoted to the geopolitical role of oil) is
the critical resource underwriting the modern post-industrial economy. Without adequate and reliable
electric energy, the computer age, the information society, many industrial processes, and even highrise or
moderate height buildings would be impossible. Electric power is the critical energy input in the
American economy. We are embarked on a significant and ultimately inevitable transition from fossil fuels
to renewable energy resources, by far the fastest growing source of new electric power in the U.S.5 The
leverage for these renewable power resources is fulcrumed at the state level by a host of renewable electric
power subsidies and requirements.6 Eighteen states, including every large state except Florida, are
deregulating their electric power sectors.7 The socalled “renewable resource portfolio standard” is adopted in
most of these deregulated states, as is the renewable energy system benefit charge trust fund subsidy.8 These
state policies drive American energy policy into the twenty-first century. This energy transition has profound
effects on the decentralization of power in America. It diversifies and strengthens the U.S. energy system
against attack and failure in the post-September 11 era. But despite the beneficial environmental and national
defense implications of this state-subsidized push into a renewable power future,9 there are serious
Constitutional tripwires lurking before some of these innovative state initiatives. This Article critically
analyzes application and violations of the dormant Commerce Clause and the Supremacy Clause of the U.S.
Constitution posed by these state renewable energy programs.10 In twenty-first century America, power is
the quintessential good (or service) in interstate commerce. Yet, some of the states through these
initiatives use interstate power sales to subsidize in-state enterprises, while beggaring their neighbors. The
U.S. Supreme Court has struck down similar programs involving interstate goods taxed by states to
provide local subsidies.11 This Article attempts to determine which of the key renewable energy
initiatives commit constitutional violations and are thus not legally sustainable. Given the pivotal role of
power in the American economy, this Article charts and outlines how states can accomplish a range of
renewable energy promotions without running afoul of Constitutional and other legal limitations. It also
suggests federal solutions. While the many varied state programs create wonderful laboratories for
experimentation, only by fostering the renewable energy future without constitutional violations can the
energy future be founded on a truly sustainable base.
SDI 2008 40
WHAM! States/Fism Core

ESA DA – ESA Based On Commerce Clause


( ) The ESA is based on the Commerce Clause – the CP would open the door to striking it
down
Mollie Lee, 11-1-2006, Yale L. J., “Environmental economics,” http://goliath.ecnext.com/coms2/gi_0199-
6199333/Environmental-economics-a-market-failure.html
When Congress passed the United States' major environmental statutes in the 1970s and early 1980s, (1)
it acted under its constitutional authority to "regulate Commerce with foreign Nations, and among the
several States, and with the Indian Tribes." (2) At the time, courts and Congress shared an expansive
understanding of the Commerce Clause. (3) The idea that there were limits on Congress's Commerce
Clause authority was an "intellectual joke," (4) and the standard law school treatment of Commerce Clause
powers boiled down to the explanation that "Congress can do whatever it wants." (5) However,
congressional authority to enact environmental legislation has been called into question by recent
Supreme Court cases suggesting that Commerce Clause regulation is valid only if Congress is regulating
"economic activity." (6) While lower courts applying this new doctrine have held that environmental
regulation is valid Commerce Clause regulation, they have had difficulty explaining why. In particular, they
have struggled to identify the economic activity regulated by certain environmental statutes. The Endangered
Species Act (ESA) is especially vulnerable under the Court's new Commerce Clause analysis. Many
environmental statutes may be upheld because they directly regulate industrial activity, which courts regard
as sufficiently "economic" for Commerce Clause purposes. (7) This logic is more difficult to apply to the
ESA, however, because the statute seeks to protect threatened and endangered species by prohibiting any
actions that harm designated species, rather than by regulating specific types of commercial activity. For
decades, the wide reach and strict prohibitions of the ESA have generated resistance, (8) and the Court's
new Commerce Clause doctrine has created an opening for a wave of legal challenges to the statute. In
response to the Court's renewed attention to the economic nature of Commerce Clause legislation, opponents
of the ESA have challenged applications of the statute that have only a questionable link to economic
activity.
SDI 2008 41
WHAM! States/Fism Core

ESA Good – Species/Economy


( ) ESA is key to check global species extinction and the economy, and doesn’t stop
development
Robert Perciasepe, chief operating office of Audubon, SF Chronicale, 12-23-2003, “The ESA at 30”,
http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2003/12/23/EDGJ33S6TO1.DTL
Americans recognized the danger to their natural heritage and collaborated across party lines to find a
solution. The Endangered Species Act slowed and halted a seemingly inexorable slide toward extinction
for too many of America's wild birds and animals. Signed on Dec. 28, 1973, by President Richard Nixon,
the act is a model worldwide for protecting wildlife and habitats. The ESA's effectiveness is obvious
today. California species such as the brown pelican, peregrine falcon and gray whale are again abundant enough to have been removed from the endangered
list. The state's sea otters and condors would simply not be here without this landmark bill. The bald eagle is among the act's most dramatic success stories.
Down to only a few hundred breeding pairs by 1973, this bird has bounced back thanks to ESA-mandated programs, bringing the number of nesting pairs
into the thousands. Now, American schoolchildren once again have a chance to see this most majestic of our birds flying over their communities. No myth,
no symbol on a flag or seal, but a living, breathing embodiment of our national spirit. It is something to be proud of for many reasons, not the least of which
is a lesson in the potential of American lawmaking. Though effective, the ESA is not without detractors. Critics want it gutted, claiming it protects
the act allows almost any development to go forward, as long as
"unimportant" species and halts development. In fact,
provision is made to protect imperiled species it affects. The law sets the bar high when a developer or
polluter wants to remove the last of a species from the planet forever, and it should. Despite critics'
arguments, the act actually pushes both the national and California economies forward. U.S. consumers
spent nearly $39 billion on wildlife watching in 2001. That year, $2.6 billion was added to California's economy by wildlife
watchers, many of whom took trips to see gray whales, condors, sea otters and other animals that can be viewed nowhere else in the country. That they can
be seen at all is to the act's credit. When naysayers make claims for weakening the law, they also reveal indifference to what we nearly lost forever -- and
what is still at risk. Since
the inception of the act, human impacts on wilderness have snowballed. Bird
populations such as the cerulean warbler (a species we believe should be listed as endangered) have declined
by as much as 75 percent since 1973. Sprawl increases daily, wetlands disappear and special interests seek to
undermine environmental protection to increase their short-term profits. The ESA needs to be in place to
act as a balance. Perhaps the best example of why is found in two species that haven't recovered. The act was needed, but came too late, for the
dusky seaside sparrow, a small bird found in the Cape Canaveral area. Its habitat was destroyed by unchecked coastal development in the 1960s; the last
bird died in captivity in 1987. But the California condor may yet be saved. Captive breeding, field studies and identification and removal of toxic threats,
along with the reintroduction of individual condors to Central and Southern California -- all mandated by the ESA -- are taking place to resurrect this bird.
It's a victory in progress: Nearly 50 of these imposing and stately creatures are back where they belong, when only a decade ago, this bird was officially
extinct in the wild. This is owing completely to the ESA. Why we would weaken a demonstrable success that has only positive benefits to wildlife and to
the economy -- and to the health of us all - is something the act's enemies have a hard time defending convincingly. Earlier this month, a celebration played
out on Capitol Hill in Washington. Lawmakers, conservationists and even wildlife came together to commemorate the 30th anniversary of the Endangered
the act is needed now more than ever. They
Species Act. They celebrated because it is a success. They celebrated because
celebrated because, when supported, the act does what it was designed to do: save species from
extinction. Significantly, the wildlife representing proof of the act's effectiveness was a bald eagle -- there
thanks to the ESA.

ESA is key to economy –empirical studies prove


SCOPP, Editor-in-Chief, U.S.F. Law Review, Volume 40, 05 (David W. Scopp, University of San Francisco of
Law Review, 39 U.S.F. L. Rev. 789, Spring, 2005, Lexis)
As Congress comprehended, preserving biodiversity positively impacts interstate commerce by
providing valuable resources, as well as by contributing to the availability of ecosystem services. A rich
variety of genes, species, and biological communities provide our economy with food, wood, fibers,
energy, raw material, industrial chemicals, and medicines. 201 For example, a species' genetic
information not only allows it to adapt to changing environmental conditions but is also used in genetic
engineering to produce new types of crops, foods, and pharmaceuticals. 202 These contributions funnel
billions of dollars into the world economy each year. 203 Furthermore, eco-tourism generates at least $
500 billion per year worldwide. 204 Empirical evidence supports these contentions and shows that the
ESA actually affects the national economy. In fact, an empirical study performed by a professor at
Massachusetts Institute of Technology indicates that the listing of a species under the ESA may have a
positive impact on the agricultural sector's performance. 205 Furthermore, another empirical study
indicates that the critical habitat designation under the ESA may enhance recreational activities and economic
development in other areas through the reallocation of water resources. 206
SDI 2008 42
WHAM! States/Fism Core

Economy DA 2AC
A. The CP would be send a massive signal of unpredictability and confusion from the court
Matthew Ford, Law Student at St John's University School of Law in New York. 9/15/05. “John Roberts, Stare
Decisis, and the Return of Lochner: An Impetus to Jump-Start the Labor Movement.” Mr. Zine Magazine, A Project
of the Monthly Review. http://mrzine.monthlyreview.org/ford180905.html
Our common law system is based largely on the idea of "stare decisis," the idea that the rulings of judges are generally binding. Such a
system is designed to create continuity so as to send a signal to society about what sort of behavior society will or will not
tolerate, to avoid confusion certain to arise if laws are constantly changing, and to diminish the
likelihood of agitating society as a whole or creating a backlash by overturning laws that are widely valued. However, as
Judge Roberts put it, "[S]tare decisis is not an inexorable command" ("Transcript: Day Two of the Roberts Confirmation Hearings," 13 September
2004). The Supreme Court can overturn precedent when it sees fit, or, in the words of Roberts, "You have to consider whether [precedent has]
created settled expectations that should not be disrupted in the interest of regularity in the legal system" ("Transcript: Day Two of the Roberts
Confirmation Hearings," 13 September 2004). If Roberts sticks to his word, large, well-organized, militant groups such as the Women's Rights
Movement should find comfort in the fact that Roberts has implicitly acknowledged that the overturning of such a key
precedent as Roe v. Wade would likely lead to large-scale upheaval by the well-organized feminist movement that would
shake society so forcefully that to even fathom overturning the ruling is to start trouble.

B. Legal certainty is key to the economy


Lars-Hendrik Röller, European policy perspectives, 2005, Economic Analysis and Competition Policy
Enforcement in Europe, http://ec.europa.eu/comm/competition/speeches/text/sp2005_011_en.pdf
The second challenge to economics and economists in competition policy is legal certainty. Predictability and legal certainty are
important aspects of competition policy law. There is real economic value to transparency and predictable
procedures. Running a successful businesses is all about the ability to be forward looking. Management
decisions about technology, markets, competitors are complex and determine the success or failure of companies. Increased
regulatory uncertainty raises costs, threatens survival and potentially reduces economic growth. More
generally, clarity and credibility are likely to increase the effectiveness of a policy. The effectiveness of an antitrust agency is not solely
determined by the decisions that it takes. To a large extent, the impact of an antitrust agency can be attributed to the decisions that it does
not have to take. Indeed, if competition rules were well understood, and the consequences of breaking these rules are reasonably
unattractive, less antitrust action would indeed be needed. In this sense, the credibility of the antitrust agency is a significant determinant
of its effectiveness. The challenge to economics is to ensure that economic analysis does not come at the
expense of legal certainty and predictability. As John Vickers recently pointed out,24 legal certainty and economic
principles are not substitutes but complements. In other words, given the current state of affairs, we can get more of both, in particular in
the context of guidelines. By enhancing predictability and legal certainty guidelines contribute towards the
effectiveness of competition policy.

C. Economic decline causes extinction


Lt. Col, Tom Bearden, PhD Nuclear Engineering, April 25, 2000,
http://www.cheniere.org/correspondence/042500%20-%20modified.htm
Just prior to the terrible collapse of the World economy, with the crumbling well underway and rising, it is inevitable that some of the
[wmd] weapons of mass destruction will be used by one or more nations on others. An interesting result then---as all the old strategic
studies used to show---is that everyone will fire everything as fast as possible against their perceived enemies. The reason is simple:
When the mass destruction weapons are unleashed at all, the only chance a nation has to survive is to desperately try to destroy its
perceived enemies before they destroy it. So there will erupt a spasmodic unleashing of the long range missiles,
nuclear arsenals, and biological warfare arsenals of the nations as they feel the economic collapse,
poverty, death, misery, etc. a bit earlier. The ensuing holocaust is certain to immediately draw in the
major nations also, and literally a hell on earth will result. In short, we will get the great Armageddon
we have been fearing since the advent of the nuclear genie. Right now, my personal estimate is that we have about a 99% chance of that
scenario or some modified version of it, resulting.
SDI 2008 43
WHAM! States/Fism Core

Economy DA – Yes Legal Predictability


The Supreme Court is predictable now.
The Economist, 12/13/06, “Shrinking Supremes”,
http://www.economist.com/printedition/displayStory.cfm?story_id=8413080
Modesty is at the core of Mr Roberts's judicial philosophy. It is first and foremost the antithesis of “judicial activism”. Mr Roberts
strongly believes that judges should restrict themselves to interpreting the law rather than solving society's problems. But modesty
entails some other things as well. Mr Roberts favours legal minimalism: deciding issues on narrow grounds
wherever possible. He favours predictability, or deciding cases on the basis of rules that can be used in the future. And he puts
a strong emphasis on building consensus. The best way to forge consensus among nine headstrong jurists is to adopt a limited view of
what the court is doing. During his confirmation hearings Mr Roberts hit on the metaphor of a baseball umpire. “It is a limited role,” he
explained. “Nobody ever went to a ballgame to see the umpire...It's my job to call balls and strikes and not to pitch or bat.” And he has
dropped more hints since becoming chief justice. He argued at Georgetown University law school that “If it is not necessary to decide
more to dispose of a case, in my view it is necessary not to decide more.” He told an interviewer that he re-read the constitution at the
end of the court's term in order to see how close the court was to the original document. Asked which founder he would most like to
have been, he said he would like to have been the one who “brokered the great compromises”. The most striking evidence
that Mr Roberts is stamping his philosophy on the court is the dramatic decline in business. The New York
Times reports that the court has taken 40% fewer cases this term than last, leaving big gaps in its calendar for late winter
and early spring. The number of cases which the court decided with signed opinions last term, 69, was the lowest since 1953, and fewer
than half the number that the court was deciding in the mid-1980s. Constitutional law professors are even complaining that they have too
few new cases to get their teeth into. Opinions are more often unanimous, too. In the 2005 term, according to the Cato
Institute, a libertarian think-tank, the court decided almost half its docket without dissents—a big improvement on
recent terms. In cases with dissents, Mr Roberts was most often in the majority. Some of these decisions concerned issues
where court-watchers had predicted fierce battles—most notably abortion, the death penalty and religious freedom.
SDI 2008 44
WHAM! States/Fism Core

Economy DA – Predictability Links


( ) Roberts has been clear that he won’t do anything crazy – plan makes him look
inconsistent and unable to maintain legal stability and predictability.
Michael J. Gerhardt, Distinguished Professor of Constitutional Law at the University of North Carolina at Chapel
Hill School of Law. Minnesota Law Review, May, 2006. 90 Minn. L. Rev. 1204. “THE FUTURE OF THE
SUPREME COURT: INSTITUTIONAL REFORM AND BEYOND: Essay: Super Precedent.”
Chief Justice Roberts was a model for avoiding pitfalls in the confirmation process. It is possible he may have been too good a model.
He constantly espoused respect for precedent throughout his hearings. He may or may not have been a firebrand when he
worked in the Office of the Attorney General, the White House, or in Office of the Solicitor General, but he was not a firebrand when he
appeared in front of the Senate [*1228] Judiciary Committee. He no doubt understands that President Bush would love to see him not
only vote as Chief Justice Rehnquist did but also move the Court further to the right. Yet, John Roberts the nominee accepted some
judicial decisions inconsistent with that political agenda, including those recognizing a marital right of privacy, 98 the framework for
analyzing separation of powers conflicts, 99 the constitutionality of the 1965 Voting Rights Act, 100 and heightened scrutiny for gender
classifications. 101 Roberts even acknowledged Roe as "settled law," and recognized that overruling a precedent
would be "a jolt to the legal system." 102 One has to assume that some overrulings would produce more of a
"jolt" to the system than others, and some might fatally electrocute the system. While Chief Justice
Roberts suggested it was not unthinkable for the Supreme Court to overrule settled law, he made abundantly clear that his
philosophy of judicial modesty is grounded, at least in part, on respect for what came before. Roberts acknowledged that
predictability, stability, consistency, and reliance are values to be taken into account in constitutional adjudication, and it
would seem to follow that these values ought to count in most cases. 103 It further follows that there may be at least some instances in
which the values promoted by fidelity to precedent become compelling. A Court that overrules too many precedents not only
sets a bad example for the Courts that follow (because it provides no incentive to respect the work of its
predecessors), but also signals permission for other branches to view its decisions with the same lack of
respect with which it views them. A healthy respect for precedent means learning to live with decisions with which you disagree.
When Roberts went further to describe himself as a "bottom-up" kind of judge, 104 he signaled that his inclination is to decide cases
incrementally and to infer principles from the records of the cases below. A bottom-up judge is willing to learn from experience, which
necessarily means that a good deal of our experience has to be left in tact.

( ) Businesses are watching Roberts closely – predictability is key.


Financial Times (London, England), June 29, 2006. “The Supreme Court has been bad for business.”
It is not that business wants every decision to go its way: many did this term, including an important ruling limiting securities class
action lawsuits. The most important thing for corporate America is to know what the rules are: certainty -
even the certainty of a loss - reduces litigation. Chief Justice Roberts has spoken of the need for judicial
modesty: he thinks courts should not decide more than is necessary, and he is right. But what they do decide, they
should do so clearly, if at all possible - or they risk deciding nothing at all. The court has plenty of time to rectify this situation in the
term that begins in October: the justices have already agreed to hear critically important cases in the area of punitive damages, antitrust,
patents and environmental regulation. As Miguel Estrada, a former Clinton administration lawyer, says, this Supreme Court seems
willing to give the business community a hearing, but it is not clear yet whether they will also give
business a break - or even more importantly, some answers to its questions.

( ) Legal uncertainty kills business confidence.


Thomas Healy, Associate, Sidley Austin Brown & Wood, Washington D.C. Former Law Clerk to Judge Michael
Hawkins on the United States Court of Appeals for the Ninth Circuit. West Virgina Law Review, Fall, 2001. 104 W.
Va L. Rev. 43. “STARE DECISIS AS A CONSTITUTIONAL REQUIREMENT.”
The most frequent claim made on behalf of stare decisis is that it fosters certainty in the law. 498 By agreeing to follow established
rules, the courts enable individuals to predict the legal consequences of their actions. 499 A person who writes a will according to
accepted procedures can be confident that the courts will enforce that will after his or her death. Likewise, a corporation developing a
new product can anticipate its liability for potential defects. This certainty is desirable in its own right: it satisfies a basic human need
for security and stability. 500 Certainty also has instrumental worth. When individuals and businesses are able to
predict the circumstances under which courts will enforce contracts, impose tort liability, or extend the protection of bankruptcy
laws, they are more likely to engage in the kinds of activities that lead to a prosperous and productive society. By
contrast, if courts routinely change legal rules, people will hesitate to risk their time and money in
pursuit of goals that might ultimately be thwarted.
SDI 2008 45
WHAM! States/Fism Core

Federalism DA 1NC
A. Unique internal link – federalism is on the brink, but state rights are winning because
of leadership over energy
Raymond C, Scheppach, Exec. Dir. Of Nat. Gov. Assoc., 7-9-2008, Stateline.org, “Will the 2008 election
improve state-federal relations?”, rks, http://www.stateline.org/live/details/story?contentId=323921
While it is always risky to look into the crystal ball, I sense that we are at a major turning point in the role of the states in our
intergovernmental system. Essentially, the long-term trend of increased centralization of authority in
Washington, D.C., may slow dramatically or even be reversed. Two reasons will drive this change. First,
the next administration and Congress will have to focus more on international issues, ranging from the wars in Iraq and Afghanistan, to terrorism, to Iran and North Korea and to
the next
global economic issues such as the price of oil and other commodities and the value of the dollar?all in an increasingly fragile international financial system. In short,
administration and Congress will face huge international challenges that could dominate the agenda.
Second, on many of the domestic issues such as health care, energy and climate change, states and
governors have been providing national leadership over the last decade.

B. Current federal environmental programs leave a role for the states – the plan reverses
this, destroying federalism
Robert B. McKinstry, Philadelphia lawyer, John C. Dernbach, Law Prof @ Widener, and Thomas D.
Peterson, Exec. Dir. Center for Climate Strategies, 11-19-2007, “Federal Climate Change Legislation,” Widener
Law, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1031552#PaperDownload
Most major federal environmental laws preserve a significant role for state and sometimes local
government. They create overarching federal goals and minimum standards and provide for implementation by states, often leaving the design of implementation
mechanisms to the states. Preservation of a significant state role in federal programs reflects political reality in the
United States. Constitutional limitations on federal power have been reinforced by long political
tradition of local decision-making epitomized by the New England town meeting and concern that centralizing power would undermine political freedoms.
There are also concrete advantages to giving state and local government a significant role in
implementation of environmental policies. These are evident from consideration of the progress of climate change initiatives in the United States to
date. As noted by Justice Brandeis in New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting), states have greater flexibility that
allows them to innovate with less severe consequences and provide models for future federal
legislation. State and local government programs can allow bottom-up decision-making with greater stakeholder involvement. This allows the development of more precisely
focused targets and strategies that are tailored to local conditions and are more likely to succeed.

C. US federalism is modeled worldwide – continued respect for state’s rights is key


Steven G. Calabresi, Associate Professor, Northwestern University School of Law. “A Government of Limited
and Enumerated Powers,” Michigan Law Review December, 1995
We have seen that a desire for both international and devolutionary federalism has swept across the world in recent years. To a
significant extent, this is due to global fascination with and emulation of our own American federalism
success story. The global trend toward federalism is an enormously positive development that greatly increases the likelihood of future peace,
free trade, economic growth, respect for social and cultural diversity, and protection of individual human rights. It depends for its success on the
willingness of sovereign nations to strike federalism deals in the belief that those deals will be kept. 233
The U.S. Supreme Court can do its part to encourage the future striking of such deals by enforcing
vigorously our own American federalism deal. Lopez could be a first step in that process, if only the
Justices and the legal academy would wake up to the importance of what is at stake.

D. Federalism prevents violence and war


Steven Calabresi, Law Prof @ NWU, December 1995, 94 Mich. L. Rev. 752.
Small state federalism is a big part of what keeps the peace in countries like the United States and Switzerland. It is a big part of the
reason why we do not have a Bosnia or a Northern Ireland or a Basque country or a Chechnya or a Corsica or a Quebec problem. American federalism in the end is not a trivial matter
federalism is a thriving and vital institutional arrangement - partly planned by
or a quaint historical anachronism. American-style
the Framers, partly the accident of history - and it prevents violence and war. It prevents religious warfare,
it prevents secessionist warfare, and it prevents racial warfare. It is part of the reason why democratic
majoritarianism in the United States has not produced violence or secession for 130 years, unlike the
situation for example, in England, France, Germany, Russia, Czechoslovakia, Yugoslavia, Cyprus, or
Spain. There is nothing in the U.S. Constitution that is more important or that has done more to
promote peace, prosperity, and freedom than the federal structure of that great document. There is nothing in the U.S. Constitution that should absorb
more completely the attention of the U.S. Supreme Court.
SDI 2008 46
WHAM! States/Fism Core

Federalism Brink
( ) Federalism is in a state of flux – Roberts and Alito are on the side of states rights, but
only future cases will determine whether they succeed
Denise C. Morgan, Law Prof @ NYU, 2006, “A Tale Of (At Least) Two Federalisms,” 50 N.Y.L. Sch. L. Rev.
615, p ln
But the sexiness of the new federalism has come at the price of confusion and instability. Everything about
the area of law now seems to be in flux. The most obvious example is that the composition of the Supreme
Court is changing for the first time in eleven years - gone are both Chief Justice William Rehnquist, who
played a strong leadership role in the Court's federalism cases, and Justice Sandra Day O'Connor, another
consistent member of the States' Rights Five. 2 We can only speculate about the positions their
replacements will take in future federalism cases and how the interplay of new personalities and judicial
styles on the Court will affect the work of the Justices. Chief Justice John Roberts's dissenting opinion in
Rancho Viejo, LLC v. Norton, written when he was a circuit court judge, suggests that he is willing to read
Supreme Court precedent narrowing Congress's Commerce Clause powers and expanding [*616]
facial challenges to federal statutes broadly. 3 Then-Judge Roberts, however, also allowed that he would
be open to find "alternative grounds for sustaining application of [Commerce Clause statutes] that [would] be
more consistent with Supreme Court precedent." 4 Harriet Miers, President George W. Bush's next pick to fill
a Supreme Court seat, had no record that would betray her leanings in federalism cases. 5 Judge Samuel
Alito, however, Bush's next selection for the Court, had expressed hostility towards many of the
assertions of Congressional power that we have grown accustomed to since the 1930s in his position on
the U.S. Court of Appeals for the Third Circuit. 6 Since Justice Alito is now a member of the Supreme Court,
only time will tell if a new Court majority will coalesce to police strictly the boundaries of federalism.

( ) Federalism jurisprudence is at a unique juncture – new justices and conflicts between


cases make this the key time for the future of federalism
Christina E. Coleman, JD Loyola, Summer 2006, “The Future of Federalism,” 37 Loy. U. Chi. L. J. 803, p ln
With the passing of Chief Justice William Rehnquist, 1 some observers have wondered what will become of
the former Chief Justice's "Federalism Revolution." 2 Chief Justice Rehnquist's Court restrained
Congress's authority to enact federal legislation under the Commerce Clause for the first time since the
New Deal era. 3 When the [*804] Court struck down federal legislation enacted under the Commerce
Clause, critics heralded a new era of federalism. 4 It appeared to certain commentators that the Court would
continue in this direction in deciding Gonzales v. Raich, in which the Respondents challenged the
constitutionality of the Controlled Substances Act (CSA) in the context of medical marijuana - these
observers predicted the Court would not uphold such an attenuated exercise of the federal commerce power.
5 However, in Raich, the Court held that Congress had the power to regulate the purely local,
noncommercial cultivation and possession of marijuana for personal medical use. 6 Chief Justice [*805]
Rehnquist, Justice O'Connor and Justice Thomas vigorously dissented, insisting that such an extension of the
federal commerce power was unprecedented. 7 The majority, including Justices Scalia and Kennedy, who
voted with the Raich dissenters in earlier decisions limiting the commerce power, maintained that Raich was
not analogous to those prior cases, and found a rational basis for congressional regulation. 8 With this
apparent departure from earlier limitations on federal power set by the Rehnquist Court and the addition
of two new Justices, 9 it is unclear whether Raich marks a shift away from federalism or simply a
trumping of current drug policy over federalist concerns. 10 Part II of this Note will provide an overview
of Commerce Clause jurisprudence, with special focus on the three central cases discussed in the Raich
opinion: United States v. Lopez, United States v. Morrison, and Wickard v. Filburn. 11 In addition, Part II
will briefly outline Justice Rehnquist's efforts to turn the Court toward federalism. 12 Part II will also outline
the history of drug regulation in the United States and describe the main provisions of the CSA and state
legislation governing [*806] medical marijuana use. 13 Part III then will discuss the majority, concurring
and dissenting opinions from the United States Supreme Court's decision in Gonzales v. Raich. 14 Part IV
will argue that the dissenting judges were correct in asserting that the purely local, noncommercial cultivation
of marijuana for personal use as defined by state law is a class of activities beyond the scope of the
Commerce Clause. 15 Part V will evaluate the impact of Raich on future Commerce Clause challenges, as
well as on CSA enforcement, and will consider the future of federalism. 16 This Note will conclude by
asserting that with the majority decision in Raich, and the replacement of two confirmed federalists on
the Court, the future of the new federalism is uncertain.
SDI 2008 47
WHAM! States/Fism Core

Yes Federalism – General


Federalism is alive and well – states are making domestic policy and not being crushed by
the feds
John Dinan, Executive director of the National Governors Association, 6-22-2008, Publius, “The state of
American Federalism 2007-2008: resurgent state influence in the national policy process and continued state
policy innovation,” rks, lexis
By any measure, state governments were at the forefront of domestic policy-making in 2007 and early
2008. Not only were state officials more successful than in any prior year of the Bush presidency in
securing relief from burdensome federal directives regarding the National Guard, homeland security,
education, and welfare policy, but they were also as active as ever in adopting policy innovations in areas
such as illegal immigration, health care, and environmental protection.To be sure, state influence in the
national policy process was not so strong as to bring an end to other contested requirements in the NoChild
Left Behind Act (NCLB), Temporary Assistance for Needy Families program (TANF), and REAL ID Act or
to fend off new federal directives in other areas. Nor were state officials free of federal constraints as they
targeted illegal immigration, expanded health care coverage, and addressed climate change, given that state
acts generated federal lawsuits and agency rulings preempting state authority in each ofthese areas.
Nevertheless, states were more influential than in recent years in gaining flexibility in implementing
federal legislation, and they continued to be the main innovators in policy areas where the public was
especially desirous of governmental action.

( ) Federalism is high – states are winning court battles over rights


Ilya Somin, George Mason University - School of Law, 6-23-08, Northwestern University Law Review Colloquy,
Vol. 102, pp. 365-373, 2008, “A Floor, Not a Ceiling: Federalism and Remedies for Violations of Constitutional
Rights in Danforth V. Minnesota,” rks, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1150417
Few doubt that states can provide greater protection for individual rights under state constitutions
than is available under the Supreme Court's interpretation of the federal Constitution. More difficult
issues arise, however, when state courts seek to provide greater protection than the Court requires for federal
constitutional rights. Can state courts impose remedies for violations of federal constitutional rights that are
more generous than those required by the federal Supreme Court? That is the issue raised by the Court's
recent decision in Danforth v. Minnesota. By a 7-2 vote, the Court decided that state courts could
indeed provide victims of constitutional rights violations broader remedies than those mandated by
federal Supreme Court decisions. I contend that this outcome is correct, despite the seeming incongruity of
allowing state courts to deviate from the Supreme Court's interpretation of the federal Constitution. The
Supreme Court should establish a floor for remedies below which states cannot fall. But there is no reason for
it to also mandate a ceiling. Part I briefly describes the facts and background to Danforth. In Part II, I
provide a doctrinal justification for the Supreme Court's decision. It makes sense to allow state courts to
provide more generous remedies than those mandated by the federal courts in cases where restrictions
on the scope of remedies are not imposed by the Constitution itself, but are instead based on policy
grounds. State courts can legitimately conclude that these policy grounds are absent or outweighed by other
considerations within their state systems, even if they are compelling justifications for restricting the scope of
remedies available in federal courts. State courts are in a better position to weigh the relevant tradeoffs
in a state legal system than federal courts are. Part III explains the potential policy advantages of allowing
interstate diversity in remedies, most importantly inter-jurisdictional competition and an increased ability to
provide for diverse citizen preferences and local conditions across different parts of the country. The optimal
remedy for a constitutional rights violation in New York may well be different from the optimal remedy for
one that occurs in Mississippi.
SDI 2008 48
WHAM! States/Fism Core

Yes Federalism – Roberts/Alito


( ) Roberts and Alito will keep the new federalism going – prior case history proves
Casey L. Carhart, JD can. Whittier, Spring 2006, “Note and Comment,” 27 Whittier L. Rev. 833, p ln
Chief Justice Roberts' limited experience leaves great speculation as to where he will stand on not only the
Commerce Clause, but on a multitude of other issues. Prior to his appointment to the Supreme Court, Roberts
served for two years as a federal appellate judge. The only insight we have into Roberts' standing on
Federalism derives from a dissenting opinion that he authored in 2003. 273 In Rancho Viejo, LLC v.
Norton, 274 the majority upheld an order issued by the Federal Fish and Wildlife Service under the
Commerce Clause. 275 In his dissent, Roberts noted that the majority's definition of "commerce" was
inconsistent with the precedent set forth by Lopez 276 and Morrison, 277 as the activity regulated on
private property did not substantially affect interstate commerce. 278 Such a holding alludes to future
rulings consistent with the foundations set by Justices Rehnquist and O'Connor. In addition, since his
appointment, Chief Justice Roberts has had little opportunity to rule on similar issues. However, his votes
thus far appear to be compliant with Federalist principles. 279 [*864] Similarly, prior to his
appointment, recently confirmed Justice Alito demonstrated a willingness to enforce constitutional limits
on federal power. In United States v. Rybar, Justice Alito voted to strike down a federal law banning the
mere possession of machine guns. 280 In his dissent, Justice Alito analogized Rybar to the Supreme
Court's decision in Lopez, 281 concluding that a federal law which does not require prosecutors to
demonstrate movement in interstate commerce was a violation of the Commerce Clause. 282 The two
recently appointed Justices seem to approach issues of Federalism in a manner which comports with
the ideals of former Justices Rehnquist and O'Connor. However, the impact of the recent restructuring of
the Court remains unclear. If history is any determination, the scope of congressional authority under the
Commerce Clause may never be clearly defined.
SDI 2008 49
WHAM! States/Fism Core

Federalism Links – Alternative Energy


( ) The federalism balance over alternative energy has decisively shifted to the states – it’s
a key part of decentralizing government
Steven Ferrey, Law Prof @ Harvard, Fall 2003, “Nothing But Net,” 14 Duke Envt’l. L. & Pol’y F. 1, ln
With state governments at the barricades of federalism, an energy revolution has been launched.
Perhaps usurping federal law, thirty-eight states recently mounted a statutory and regulatory charge
to establish "net metering," a regulatory innovation to implement decentralized renewable power. This
innovation fundamentally shifts the regulatory balance as well as the energy mix in America. Net
metering profoundly reshapes the energy landscape, providing the most significant boost of any policy
tool at any level of government - both qualitatively and quantitatively - to decentralize and "green"
American energy sources. While only twelve states have passed statutory initiatives to implement
renewable energy system benefit charges and eight have elected to implement renewable portfolio standards,
n1 thirty-six states to date have implemented net metering. n2 Net metering enables consumers with small
generating facilities, for example solar panels, fuel cells, or wind turbine systems, to offset their electric bills
with any excess [*2] power produced at their facility, running the retail utility meter backwards when the
renewable energy generator funnels power to the grid. Net billing, or net metering, is the cornerstone of
state energy policies encouraging private investment in renewable energy sources. n3

( ) Current federal energy policies still let the states run the show – giving them a
significant boost
Robert B. McKinstry, Jr., John C. Dernbach, and Thomas D. Peterson, Winter 2008, Natural Resources &
Environment, Volume 22, Number 3, “Federal Climate Change Legislation as If the States Matter,” rks,
http://www.climatestrategies.us/ewebeditpro/items/O25F17686.pdf
States are at the forefront of climate change efforts in the United States. These efforts involve more and
more states and are becoming increasingly ambitious and regional in scope. Most observers, even at the
state level, see state and regional efforts as a next-best strategy in the absence of serious national leadership.
The growing prospect of comprehensive national climate change legislation, however, raises many important
questions about the role of state efforts in a national climate change program. This article identifies the key
state/federal issues that should be addressed in any comprehensive national climate change legislation and
provides recommendations for resolving these issues. We cannot hope to successfully address climate change
without fully engaging states and their local governments as partners in the national effort. In the early
1970s, Congress passed national air-quality, water-quality, surface mining, solid and hazardous waste, and
other legislation based on models created by prior state action. This federal legislation created floors and
requirements for states that had failed to do the job but left a significant role for states both in
implementing the federal model and continuing to act. As a result, state environmental protection and
natural resource agencies have become larger, better funded, more professionally staffed, and more
effective than they were in 1970. For climate change, by contrast, the federal government has delayed
taking action far beyond the time in which it acted previously. State and regional actions greatly exceed
in both scope and number those seen on other environmental issues prior to major federal legislation.
The federal government’s failure to take significant action has not been due to any desire to allow states to
pursue independent action without federal interference. But the states have responded to climate change
because they believe their shorelines, water resources, key industries, and people are at risk. Much of what
the states have done, moreover, falls squarely within their traditional police power roles, including public
health and safety protection and regulation of land use. Massachusetts and other states challenged the U.S.
Environmental Protection Agency’s (EPA’s) refusal to exercise jurisdiction over greenhouse gas (GHG)
emissions under the Clean Air Act (CAA), 42 U.S.C. §§ 7401-7671q, precisely because they saw themselves
and their citizens as threatened by rising sea levels from global warming.
SDI 2008 50
WHAM! States/Fism Core

Federalism Links – Preemption


( ) Federal preemption undermines states’ rights
Ernest Young, Law Prof @ Texas, November 2004, Texas L. Rev., p ln
Second, limiting preemption seeks to address certain process defects that may render the national
political process less protective of state autonomy. Professor Hoke has argued that the sort of concentrated
interest groups that often seek preemption of state regulation have certain organizational advantages at
the federal level that offset state representation. More fundamentally, I have already emphasized the extent to
which widespread preemption threatens the state autonomy necessary to maintain a viable system of
political checks on central power. Limits on preemption thus address problems that undermine the
self-enforcing character of the system.

( ) Every instance of preemption risks federalism


James Lack, Senator NY, 7-11-1995, Hearing Before Committee on the Judiciary United States Senate, p. 11
Inordinate reliance upon the central government for problem-solving feeds the misconception that
uniformity for uniformity’s sake alone is a concept that justifies preemption. However, in a federal
system strong reasons compel acceptance of diversity among states. Our federalism anticipates diversity;
our unity does not anticipated uniformity. By definition, every preemptive law diminishes other
expressions of self-government and should be approved only where compelling need and broad consensus
exist. While proponents of preemption may claim expected benefits, these must be balanced against the
potential loss of accountability, innovation, and responsiveness.
SDI 2008 51
WHAM! States/Fism Core

Federalism Links – RPS


( ) Federal RPS programs directly infringe on states rights
James W. Moeller, August 2004, Public Utilities Fortnightly, “Leave Green-Power; Quotas to the States,” ln
A federal RPS would require that a specified percentage of electric power sold by electric utilities into retail
markets be derived from renewable resources. A federal RPS is predicated, therefore, on the assumption
that the federal government regulates retail markets for electric power. Congress could, of course,
authorize the Federal Energy Regulatory Commission (FERC) to regulate wholesale as well as retail electric
power sales and services. However, in the Federal Power Act of 1935, the organic statute for federal
regulation of electric utilities, Congress authorized FERC to regulate just wholesale electric power. The
regulation of retail electric power was left to the states and to the state public service commissions. The
regulation of retail sales and services also was left to the states under PURPA, Title I, which established
numerous retail policies for electric utilities. The policies were intended to promote the conservation of
electric power and the efficient use of generation facilities and fuels. The retail policies were not imposed on
electric utilities. Indeed, PURPA left the adoption and implementation of the retail policies to state
public service commissions, which could choose to adopt or reject each standard. The statute guaranteed
that nothing therein precluded the adoption of state policies different from the retail policies of PURPA. In
this regard, PURPA reinforces the traditional jurisdictional divide between federal regulation of
wholesale sales and services and state regulation of retail sales and services. This jurisdictional formula
has worked well for almost 70 years. There is no compelling need now for Congress to interfere with
the traditional state prerogative to regulate the retail rates and services of public utilities. The
experiment with green-power quotas began with state legislatures and state public service commissions. The
experiment should continue not on the federal level but on the state level. Congress should not impose
a federal RPS. Instead, PURPA should be amended to include an RPS among the retail policies that can be
adopted or rejected by state public service commission. Leave the green-power quotas to the states.

( ) National RPS would crush federalism – it’s too one-size-fits-all


Marlo Lewis, Senior Fellow @ Comp. Ent. Inst., 8-17-2003, “Killing Energy,”
http://www.renewamerica.us/columns/mlewis/030817
Second, a nationwide RPS is an unfunded, one-size-fits-all federal mandate. What is the point of
requiring states to devise implementation plans to meet federal clean air standards if Congress is going
to dictate the details of those plans? States are already free to subsidize and mandate the use of
renewables if they wish, and many do. A nationwide RPS tosses federalism out the window. Third, if
Congress forces the power sector to use more non-fossil energy, utilities will have less reason to resist Kyoto
or McCain-Lieberman, since they will already effectively comply with a carbon cap. Indeed, some may even
lobby for McCain-Lieberman, calculating that their renewable portfolios will make them net sellers of carbon
credits under a cap-and-trade program. Instead of mollifying the Kyoto crowd, enacting an RPS will simply
tee up McCain-Lieberman for the next round.

( ) National RPS would override state programs, jacking federalism


Marlo Lewis, Senior Fellow @ Comp. Ent. Inst., 9-23-2002, Deviant Standard,
http://cei.org/gencon/019,03215.cfm
More importantly, a national RPS will make a mockery of the Clean Air Act and our federal system. What
is the point of states devising "state implementation plans" if the Senate can mandate one-size-fits-all
"solutions" that take no account of local economic and environmental circumstances? Indeed, why
pretend we have a system of dual sovereignty if the Senate can overrule the 34 state governments that
have not enacted renewable portfolio standards? Because the Senate bill's RPS is a floor, not a ceiling,
its potential to exploit consumers, distort energy markets, and supplant state policy regimes is vast.
Better to have no energy bill this year than one that incorporates a renewable portfolio standard.
SDI 2008 52
WHAM! States/Fism Core

Internal Link – Slippery Slope


( ) Each intrusion on federalism erodes the balance of power
James Lack, Senator NY, 7-11-1995, Serial No. J-104-31, p. 11
Every year Congress considers bills, federal agencies consider rules, and international agencies
consider cases that would supplant state statutory or common law. Adverse decisions may result not
only in nullifying state laws and court decisions, but also in narrowing the range of issues that
legislatures may address. The threat is the steady, incremental, year-by-year erosion of the jurisdiction
of state legislatures.

( ) Expansion of federal power is a slippery slope --- each violation key


Virginia H. Johnson, JD Candidate, November 2001, Cardoza Law Review, lexis
Although the Lue court agreed that the "plainly adapted" 139 standard was the appropriate test to be applied
to the Hostage Taking Act, it found that, contrary to appellant's interpretation, the Act was "plainly adapted"
to the Convention, in that "it tracks the language of the Convention in all material respects." 140 [*380]
Specifically, the court found that the Act satisfied the means-ends relationship required by the
prevailing view of the Necessary and Proper Clause because the statutory language did not stray too
far, if at all, from the terms of the treaty, thus insulating the legislation from appellant's Necessary and
Proper Clause attack. 141 Based on the judiciary's long-standing treatment of the Necessary and Proper
Clause as conferring upon Congress broad implementation powers, 142 it is not surprising that the Lue court
premised its opinion on the presumptive validity of treaty-implementing legislation. 143 However, what this
analysis fails to take into account is the slippery slope toward a limitless treaty power that could
ultimately result in the over-expansion of federal power, especially in the area of human rights. 144 The
reasoning employed in Lue therefore provides a useful example of the typical but flawed understanding of
the Necessary and Proper Clause, in that the Lue court simply assumed "necessary" and "proper" to be
interchangeable constitutional requirements. 145

( ) Small decisions are the greatest threat to federalism


Cynthia C. Lebow, Associate Dir – RAND, Spring 1997, U. Tennessee Law Review, ln
n162 See Southland, 465 U.S. at 21 (O'Connor, J., dissenting) (noting Rehnquist, C.J., joining opinion of
O'Connor, J.); FERC, 456 U.S. at 775 (O'Connor, J., concurring in part and dissenting in part) (noting
Rehnquist, C.J., joining in opinion of O'Connor, J.). Justice Powell filed his own partial dissent in FERC that
also deserves mention. FERC, 456 U.S. at 771 (Powell, J., concurring in part and dissenting in part). Lauding
the "appeal" and "wisdom" of Justice O'Connor's dissent, Powell stated that PURPA "intrusively requires
[states] to make a place on their administrative agenda for consideration and potential adoption of federally
proposed standards.'" Id. at 771, 775 (Powell, J., concurring in part and dissenting in part). While finding that
precedents of the Court supported the constitutionality of the substantive provisions of PURPA "on this facial
attack," Powell also evoked principles of federalism to warn against the encroachment of federal
authority into state affairs: But I know of no other attempt by the Federal Government to supplant
state-prescribed procedures that in part define the nature of their administrative agencies. If Congress
may do this, presumably it has the power to pre-empt state-court rules of civil procedure and judicial
review in classes of cases found to affect commerce. This would be the type of gradual encroachment
hypothesized by Professor Tribe: "Of course, no one expects Congress to obliterate the states, at least in
one fell swoop. If there is any danger, it lies in the tyranny of small decisions in the prospect that
Congress will nibble away at state sovereignty, bit by bit, until someday essentially nothing is left but a
gutted shell." Id. at 774-75 (Powell, J., concurring in part and dissenting in part) (quoting Laurence H. Tribe,
American Constitutional Law 302 (1978)). Despite his warning, Justice Powell could probably never have
envisioned the degree to which Congress would attempt to preempt state court procedures with respect to tort
and product liability actions, areas so traditionally anchored in state common law.
SDI 2008 53
WHAM! States/Fism Core

AT: No Spillover – Single Decision Key


( ) Single big federalism decisions are key – they send an important signal that shapes
politics
Stephen G. Calabresi, professor of law @ Northwestern, Mar. 2001, The Annals of the American
Academy of Political and Social Science, 574 Annals 24
When the Supreme Court decides a big federalism case like Lopez, it does a lot more than simply
resolve the immediate case and issue at hand. In some fundamental sense, it sets up a symbol for the
American people of the importance that is attached to a constitutional value or norm. Symbolism is
terribly important in constitutions and in constitutional case law. Symbols help citizens organize their
beliefs, reinforce core values, and provide a rallying point for those who believe in them, thus reducing
the costs of organization. When powerful symbols issue from the Supreme Court of the United States,
those symbols help to set the national agenda, and they affect the flow of our politics. Lopez, for example,
caused devolution and federalism concerns to become more prominent in Congress than they otherwise
might have been. This may well have played into the last Congress’s decision to devolve part of the federal
welfare entitlement to the states.

( ) Specific policies that strengthen federalism are modeled world-wide


Michael S. Greve, John G. Searle Scholar, American Enterprise Institute. “Federalism Values and Foreign
Relations,” Chicago Journal of International Law Fall, 2001
Domestic federalism may set precedents or provide competitive models that can be scaled
internationally. For example, successful and highly efficient state competition for corporate chartering 6
demonstrates why international agreements on corporate chartering should probably take the form of
reciprocal recognition of domestic charters rather than harmonizing standards. For another example,
successful federalist regulation of internet privacy and consumer marketing information here in the
United States might well show that appropriate choice-of-law and contractual rules are preferable to an
international regulatory "privacy" cartel.
SDI 2008 54
WHAM! States/Fism Core

Federalism Is Modeled – General


( ) American federalism is modeled worldwide – laundry list proves
Steven G. Calabresi, Associate Professor, Northwestern University School of Law. “A Government of Limited
and Enumerated Powers,” Michigan Law Review December, 1995
The fifty years since then have seen the birth of the United Nations, the North Atlantic Treaty Organization
(NATO), the European Union, the European Convention on Human Rights, the British Commonwealth, the
Confederation of Independent States (CIS), the GATT, the NAFTA, and countless other transnational
"federal" entities of varying degrees of importance. 24 Many of these were openly inspired by the success
story of American federalism, which, for example, led many Europeans to want to build a Common
Market that could become a "United States of Europe." While many of these new democratic
transnational entities are very weak, they nonetheless have developed important powers: they have
helped to keep the peace, and in some instances, as with the European Union, they show real potential for
some day attaining essentially all the attributes of sovereignty commonly associated with a federal nation-
state, like the United States. The growth and success of transnational confederal forms since 1945 is truly
astonishing and rightly is viewed by many - either with alarm or with hope - as holding out the eventual
prospect of a future global federal government or at least the prospect of several continental-sized federal
governments. At the same time, U.S.-style constitutional federalism has become the order of the day in
an extraordinarily large number of [*760] very important countries, some of which once might have
been thought of as pure nation-states. Thus, the Federal Republic of Germany, the Republic of Austria, the
Russian Federation, Spain, India, and Nigeria all have decentralized power by adopting constitutions
that are significantly more federalist than the ones they replaced. 25 Many other nations that had been
influenced long ago by American federalism have chosen to retain and formalize their federal
structures. Thus, the federalist constitutions of Australia, Canada, Brazil, Argentina, and Mexico, for
example, all are basically alive and well today. As one surveys the world in 1995, American-style
federalism of some kind or another is everywhere triumphant, while the forces of nationalism, although still
dangerous, seem to be contained or in retreat. The few remaining highly centralized democratic nation-states
like Great Britain, 26 France, and Italy all face serious secessionist or devolutionary crises. 27 Other highly
centralized nation-states, like China, also seem ripe for a federalist, as well as a democratic, change. Even
many existing federal and confederal entities seem to face serious pressure to devolve power further
than they have done so far: thus, Russia, Spain, Canada, and Belgium all have very serious devolutionary
or secessionist movements of some kind. Indeed, secessionist pressure has been so great that some federal
structures recently have collapsed under its weight, as has happened in Czechoslovakia, Yugoslavia, and the
former Soviet Union.

( ) Federalism is modeled
Steven G. Calabresi, Associate Professor, Northwestern University School of Law Arkansas Law Review, 1995
In addition to judicial review and presidential government, the United States has also had an enormous
influence on global notions of federalism and of the value of a written constitution. Thus, it is not an
overstatement to say that the United States is perhaps the world's leading exporter of concepts of public
law.

( ) New policies that empower the states to protect rights from the incursions of the central
government will lead to a worldwide federalism revolution
Robert B. & Helen S. Meyner, Gov Prof and Dir. Meyner Center @ Lafayette, 1995, Camden Rutgers L.J.
Given that it is increasingly necessary to think globally while acting locally, it is pertinent to suggest that
this American experience with the new judicial federalism, however muddled, may have useful
implications for an emerging federalist revolution worldwide. n132 This potential utility lies primarily
in the concept of independent and adequate state constitutional powers that enable constituent
governments to protect rights not available from a national government, thereby providing multiple and
potentially competing forums for citizen access. The new judicial federalism shows that rights protection
cannot be entrusted to a monopoly guardian, whether it be the national government or each constituent government acting monopolistically and
autonomously within its jurisdiction. If the American historical experience has been one of overcoming state tyrannies against individual rights, the historical experience of much of
The new judicial federalism, moreover, is
the rest of the world has been one of overcoming central government tyrannies against individual rights.
situated at a critical intersection between individual rights and local autonomy, a matter of increasing
importance and conflict in the post-Cold War era.
SDI 2008 55
WHAM! States/Fism Core

Federalism Good Impact – Hegemony


A. US leadership is preserved by the balance of federalism
Alice Rivlin, Brookings Institution, Reviving the American Dream: The Economy, The States, and the Federal
Government, 1992.
The inexorably rising frequency and complexity of U.S. interaction with the rest of the world add to the
stress on federal decisionmaking processes and underline the need for making those processes simpler and
more effective. If the United States is to be an effective world leader, it cannot afford a cumbersome
national government overlapping responsibilities between the federal government and the states, and
confusion over which level is in charge of specific domestic government functions. As the world shrinks,
international concerns will continue threatening to crowd out domestic policy on the federal agenda.
Paradoxically, however, effective domestic policy is now more crucial than ever precisely because it is
essential to U.S. leadership in world affairs. Unless we have a strong productive economy, a healthy,
well-educated population, and a responsive democratic government, we will not be among the major
shapers of the future of this interdependent world. If the American standard of living is falling behind that
of other countries and its government structure is paralyzed, the United States will find its credibility in
world councils eroding. International considerations provide additional rationale, if more were needed, for
the United States to have a strong effective domestic policy. One answer to this paradox is to rediscover
the strengths of our federal system, the division of labor between the states and the national
government. Washington not only has too much to do, it has taken on domestic responsibilities that would
be handled better by the states. Revitalizing the economy may depend on restoring a cleaner division of
responsibility between the states and the national government.

B. Nuclear war.
Zalmay Khalilzad, RAND, The Washington Quarterly, Spring 1995
Under the third option, the United States would seek to retain global leadership and to preclude the rise of a
global rival or a return to multipolarity for the indefinite future. On balance, this is the best long-term guiding
principle and vision. Such a vision is desirable not as an end in itself, but because a world in which the
United States exercises leadership would have tremendous advantages. First, the global environment would
be more open and more receptive to American values -- democracy, free markets, and the rule of law. Second,
such a world would have a better chance of dealing cooperatively with the world's major problems, such as
nuclear proliferation, threats of regional hegemony by renegade states, and low-level conflicts. Finally, U.S.
leadership would help preclude the rise of another hostile global rival, enabling the United States and the
world to avoid another global cold or hot war and all the attendant dangers, including a global nuclear
exchange. U.S. leadership would therefore be more conducive to global stability than a bipolar or a
multipolar balance of power system.
SDI 2008 56
WHAM! States/Fism Core

Federalism Good Impact – Democracy


A. US leadership on federalism is essential to democracy worldwide
David Broder, Washington Post, June 24, 2001, “Lessons On Freedom.”
Even more persistent were the questions about the role the United States would play, under this new
administration, in supporting democratic movements around the world. It is sobering to be reminded how often,
during the long decades of the Cold War, this country backed (and in some cases, created) undemocratic regimes, simply because we
thought military rulers and other autocrats were more reliable allies against communism. The week of the Salzburg Seminar coincided
with President Bush's first tour of Europe. He was a target of jokes and ridicule for many of the fellows as the week began. But the
coverage of his meetings and, especially, his major address in Poland on his vision of Europe's future and America's role in it, earned
him grudging respect, even though it remains uncertain how high a priority human rights and promotion of democracy will have in the
Bush foreign policy. Another great lesson for an American reporter is that the struggle to maintain the legitimacy of
representative government in the eyes of the public is a worldwide battle. Election turnouts are dropping in
almost all the established democracies, so much so that seminar participants seriously discussed the advisability of compulsory voting,
before most of them rejected it as smacking too much of authoritarian regimes. Political parties -- which most of us have regarded as
essential agents of democracy -- are in decline everywhere. They are viewed by more and more of the national publics as being tied to
special interests or locked in increasingly irrelevant or petty rivalries -- anything but effective instruments for tackling current
challenges. One large but unresolved question throughout the week: Can you organize and sustain representative government without
strong parties? The single most impressive visitor to the seminar was Vaira Vike-Freiberga, the president of Latvia, a woman of
Thatcherite determination when it comes to pressing for her country's admission to NATO, but a democrat who has gone through exile
four times in her quest for freedom. She is a member of no party, chosen unanimously by a parliament of eight parties, and bolstered by
her popular support. But how many such leaders are there? Meantime, even as democracy is tested everywhere from Venezuela to
Romania to the Philippines, a new and perhaps tougher accountability examination awaits in the supranational organizations. The
European Union has operated so far with a strong council, where each nation has a veto, and a weak parliament, with majority rule. But
with its membership seemingly certain to expand, the age-old dilemma of democracy -- majority rule vs. minority
and individual rights -- is bound to come to the fore. The principle of federalism will be vital to its
success. And, once again, the United States has important lessons to teach. But only if we can keep
democracy strong and vital in our own country.

B. That solves extinction.


Carnegie Commission on Preventing Deadly Conflict, October 1995, “Promoting Democracy in
the 1990’s,” http://www.carnegie.org//sub/pubs/deadly/dia95_01.html, accessed on 12/11/99
OTHER THREATS This hardly exhausts the lists of threats to our security and well-being in the coming years and decades. In the
former Yugoslavia nationalist aggression tears at the stability of Europe and could easily spread. The flow of illegal drugs intensifies
through increasingly powerful international crime syndicates that have made common cause with authoritarian regimes and have utterly
corrupted the institutions of tenuous, democratic ones. Nuclear, chemical, and biological weapons continue to proliferate. The very
source of life on Earth, the global ecosystem, appears increasingly endangered. Most of these new and unconventional threats to
security are associated with or aggravated by the weakness or absence of democracy, with its provisions for
legality, accountability, popular sovereignty, and openness. LESSONS OF THE TWENTIETH CENTURY The experience of
this century offers important lessons. Countries that govern themselves in a truly democratic fashion do not go to
war with one another. They do not aggress against their neighbors to aggrandize themselves or glorify their leaders. Democratic
governments do not ethnically "cleanse" their own populations, and they are much less likely to face ethnic insurgency. Democracies do
not sponsor terrorism against one another. They do not build weapons of mass destruction to use on or to threaten one another.
Democratic countries form more reliable, open, and enduring trading partnerships. In the long run they offer better and more stable
climates for investment. They are more environmentally responsible because they must answer to their own citizens, who
organize to protest the destruction of their environments. They are better bets to honor international treaties since they value legal
obligations and because their openness makes it much more difficult to breach agreements in secret. Precisely because, within their own
borders, they respect competition, civil liberties, property rights, and the rule of law, democracies are the only reliable foundation on
which a new world order of international security and prosperity can be built.
SDI 2008 57
WHAM! States/Fism Core

Federalism Good Impact – Wars


Federalism solves multiple theaters for war and conflict
Norman Ornstein, resident scholar in social and political processes at American Enterprise Institute, Jan-Feb
1992. The American Enterprise, v3 n1 p20(5)
No word in political theory more consistently causes eyes to glaze over than “federalism.” Yet no concept is
more critical to solving many major political crises in the world right now. The former Soviet Union,
Yugoslavia, Eastern and Western Europe, South Africa, Turkey, the Middle East, and Canada are suffer-
ing from problems that could be solved, if solutions are possible, by instituting creative forms of
federalism. Federalism is not a sexy concept like “democracy” or “freedom”; it describes a more mundane
mechanism that balances the need for a central and coordinating authority at the level of a nation-state
with a degree of state and local autonomy, while also protecting minority interests, preserving ethnic
and regional identification and sensibilities, and allowing as much self-government as possible. Federalism
starts with governing structures put in place by formal, constitutional arrangements, but beyond that it is a
partnership that requires trust. Trust can’t be forged overnight by formal arrangements, but bad arrangements
can exacerbate hostilities and tensions. Good ones can be the basis for building trust. Why is federalism so
important now? There are political reasons: the breakup of the old world order has released resentments
and tensions that had been suppressed for decades or even centuries. Ethnic pride and self-identifica tion
are surging in many places around the globe. Add to this the easy availability of weapons, and you have a
potent mixture for discontent, instability, and violence. There are also economic considerations: simply
breaking up existing nation-states into separate entities cannot work when economies are interlinked in
complex ways. And there are humane factors, too. No provinces or territories are ethnically pure. Creating
an independent Quebec, Croatia, or Kazakhstan would be uplifting for French Quebecois, Croats, and
Kazakhs but terrifying for the large numbers of minorities who reside in these same territories. The only way
to begin to craft solutions, then, is to create structures that preserve necessary economic links while providing
economic independence, to create political autonomy while preserving freedom of movement and individual
rights, and to respect ethnic identity while protecting minority rights. Each country has unique problems that
require different kinds of federal structures, which can range from a federation that is tightly controlled at the
center to a confederation having autonomous units and a loose central authority. The United States pioneered
federalism in its Union and its Constitution. Its invention of a federation that balanced power between a
vigorous national government and its numerous states was every bit as significant an innovation as its
instituting a separation of powers was in governance—and defining the federal-state relationship was far
more difficult to work out at the Constitutional Convention in 1787. The U.S. federalist structure was,
obviously, not sufficient by itself to eliminate the economic and social disparities between the North and the
South. Despite the federal guarantees built into the Constitution, the divisive questions of states’ rights
dominated political conflict from the beginning and resulted ultimately in the Civil War. But the federal
system did keep conflict from boiling over into disaster for 75 years, and it has enabled the United States to
keep its union together without constitutional crisis or major bloodshed for the 125 years since the
conclusion of the War Between the States. It has also enabled us to meliorate problems of regional and ethnic
discontent. The American form of federalism fits the American culture and historical experience—it is not
directly transferable to other societies. But if ever there was a time to apply the lessons that can be drawn
from the U.S. experience or to create new federal approaches, this is it. What is striking is the present number
of countries and regions where deep-seated problems could respond to a new focus on federalism.
SDI 2008 58
WHAM! States/Fism Core

Federalism Good Impact – AT: Secession


Federalism solves violence, economic inequality and secession – prefer this evidence, it is
based on empirical examples
Will Kymlicka, Professor of Philosophy at University of Toronto, Canadian Journal of Law and Jurisprudence,
July 2000
I believe that this trend has been beneficial, and indeed quite successful, as measured by any of the criteria
which should matter to liberals, such as: [use a bullet here and below]- peace and individual security: these
multination federations are managing to deal with their competing national identities and nationalist
projects with an almost complete absence of violence or terrorism by either the state or the minority. -
democracy: ethnic conflict is now a matter of "ballots not bullets", with no threat of military coups or
authoritarian regimes which take power in the name of national security; n10 - individual rights: these
reforms have been achieved within the framework of liberal constitutions, with firm respect for individual
civil and political rights. - economic prosperity: the move to multination federalism has also been achieved
without jeopardizing the economic well-being of citizens. Indeed, the countries that have adopted
multination federalism are amongst the wealthiest in the world. - inter-group equality: last but not least,
multination federalism has promoted equality between majority and minority groups. By equality here
I mean non-domination, such that one group is not systematically vulnerable to the domination of another
group. Multination federalism has helped create greater economic equality between majority and minority;
greater equality of political influence, so that minorities are not continually outvoted on all issues; and greater
equality in the social and cultural fields, as reflected for example in reduced levels of prejudice and
discrimination and greater mutual respect between groups. On all these criteria, multination federalism in the
West must be judged as a success. Indeed, this trend is, I believe, one of the most important developments in
Western democracies in this century. We talk a lot (and rightly so) about the role of the extension of the
franchise to Blacks, women, and the working class in democratizing Western societies. But in its own way,
this shift from suppressing to accommodating minority nationalisms has also played a vital role in
consolidating and deepending democracy. These multination federations have not only managed the
conflicts arising from their competing national identities in a peaceful and democratic way, but have also
secured a high degree of economic prosperity and individual freedom for their citizens. This is truly
remarkable when one considers the immense power of nationalism in this century. Nationalism has torn apart
colonial empires and Communist dictatorships, and redefined boundaries all over the world. Yet democratic
multination federations have succeeded in taming the force of nationalism. Democratic federalism has
domesticated and pacified nationalism, while respecting individual rights and freedoms. It is difficult to
imagine any other political system that can make the same claim.

Federalism prevents secessionist warfare


Will Kymlicka, Professor of Philosophy at University of Toronto, Canadian Journal of Law and Jurisprudence,
July 2000.
Why have Western countries become less hysterical about secessionist mobilization? One reason, as I've
noted, is that allowing secessionists to mobilize freely may actually reduce the likelihood of secession.
Secession is less likely in a democratic multination federation where secessionists can mobilize freely
than in a centralized state where illiberal measures are adopted to suppress minority nationalism. But
there is another factor, namely that adopting multination federalism reduces the stakes of secession. After
all, relatively little would change if Flanders, Scotland or Quebec were to become independent states.

Minority rights protection prevents secession


Strobe Talbott, U.S. deputy secretary of state, Foreign Policy, March 22, 2000.
The best way for an ethnically diverse, geographically sprawling stare to protect itself against
separatism is to protect the rights of minorities and far-flung communities. Democracy is the political
system most explicitly designed to ensure self-determination. Democracy can be a vehicle for peaceful
secession, but it is also the best antidote to secessionism and civil war, since, in a truly democratic state,
citizens seeking to run their own lives have peaceful alternatives to taking up arms against their government.
This principle is global. It can, and should, be applied to conflicts deriving from demands for self-
determination in Asia, Africa, and the Western Hemisphere.
SDI 2008 59
WHAM! States/Fism Core

2NC Russia Impact Module


A. Russian federalism prevents economic collapse and state failure.
Clifford Kupchan, deputy coordinator of U.S. assistance to the New Independent States at the U.S. Department of
State. The Washington Quarterly 23.2 (2000) 67-77. “Devolution Drives Russian Reform.”
Acting President Vladimir Putin's sudden ascendance, his stern calls for a strong state, and vigorous prosecution of the war in Chechnya
have once again raised the specter of authoritarianism in Russia. At the same time, the weakness of Russia's central
government, coupled with ethnic strife and economic failure, have led to predictions that the Russian
Federation will fall apart. It is hard to say which haunts U.S. policymakers more: the nightmare of the violent implosion of a
nuclear power or the rebirth of a totalitarian antagonist in Europe. Fortunately, both expectations are off the mark. They
miss one of the most important trends in Russian politics since the Soviet Union dissolved in 1991--the devolution of
power to Russia's 89 distinct regions. The Russian state is not moving toward collapse, and it is far too weak to revert to
authoritarianism. Instead, Russia is undergoing a historic devolution of power that is likely to lead to a more
stable and open polity. In this sense, devolution within the Russian Federation is a very positive development and in the interests
of both Russia and the United States. This essay makes three points: First, that devolution of power in Russia has
promoted democratic and market reform, enhancing political pluralism and allowing economic success
stories to appear in the regions. The election of a moderate Duma in December 1999 and the prospect of an activist president
may well provide a more stable environment in which these reforms can flourish. Second, that despite these positive aspects, devolution
does pose formidable dangers to Russia and the West, in that it has given rise to [End Page 67] autocratic power structures in many
regions and has increased certain security risks. Third, that U.S. policy will need to focus more on issues raised by devolution of power,
allotting a larger share of its diplomatic resources and economic assistance to Russia's regions. 1

B. Russian economic collapse causes nuclear conflict


Steven David, Prof. of political science at Johns Hopkins, 1999, Foreign Affairs
If internal war does strike Russia, economic deterioration will be a prime cause. From 1989 to the present, the
GDP has fallen by 50 percent. In a society where, ten years ago, unemployment scarcely existed, it reached 9.5 percent in 1997 with
many economists declaring the true figure to be much higher. Twenty-two percent of Russians live below the official poverty line
(earning less than $ 70 a month). Modern Russia can neither collect taxes (it gathers only half the revenue it is due) nor significantly cut
spending. Reformers tout privatization as the country's cure-all, but in a land without well-defined property rights or contract law and
where subsidies remain a way of life, the prospects for transition to an American-style capitalist economy look remote at best. As the
massive devaluation of the ruble and the current political crisis show, Russia's condition is even worse than most analysts feared. If
conditions get worse, even the stoic Russian people will soon run out of patience. A future conflict would quickly draw in Russia's
military. In the Soviet days civilian rule kept the powerful armed forces in check. But with the Communist Party out of office, what little
civilian control remains relies on an exceedingly fragile foundation -- personal friendships between government leaders and military
commanders. Meanwhile, the morale of Russian soldiers has fallen to a dangerous low. Drastic cuts in spending mean inadequate pay,
housing, and medical care. A new emphasis on domestic missions has created an ideological split between the old and new guard in the
military leadership, increasing the risk that disgruntled generals may enter the political fray and feeding the resentment of soldiers who
dislike being used as a national police force. Newly enhanced ties between military units and local authorities pose another danger.
Soldiers grow ever more dependent on local governments for housing, food, and wages. Draftees serve closer to home, and new laws
have increased local control over the armed forces. Were a conflict to emerge between a regional power and Moscow, it is not at all clear
which side the military would support. Divining the military's allegiance is crucial, however, since the structure of the Russian
Federation makes it virtually certain that regional conflicts will continue to erupt. Russia's 89 republics, krais, and oblasts grow ever
more independent in a system that does little to keep them together. As the central government finds itself unable to force its will beyond
Moscow (if even that far), power devolves to the periphery. With the economy collapsing, republics feel less and less incentive to pay
taxes to Moscow when they receive so little in return. Three-quarters of them already have their own constitutions, nearly all of which
make some claim to sovereignty. Strong ethnic bonds promoted by shortsighted Soviet policies may motivate non-Russians to secede
from the Federation. Chechnya's successful revolt against Russian control inspired similar movements for autonomy and independence
throughout the country. If these rebellions spread and Moscow responds with force, civil war is likely. Should Russia succumb to
internal war, the consequences for the United States and Europe will be severe. A major power like Russia -- even though in decline --
does not suffer civil war quietly or alone. An embattled Russian Federation might provoke opportunistic attacks from
enemies such as China. Massive flows of refugees would pour into central and western Europe. Armed struggles in Russia
could easily spill into its neighbors. Damage from the fighting, particularly attacks on nuclear plants, would poison the
environment of much of Europe and Asia. Within Russia, the consequences would be even worse. Just as the sheer brutality of the last
Russian civil war laid the basis for the privations of Soviet communism, a second civil war might produce another horrific regime. Most
alarming is the real possibility that the violent disintegration of Russia could lead to loss of control over its nuclear
arsenal. No nuclear state has ever fallen victim to civil war, but even without a clear precedent the grim consequences can be foreseen.
Russia retains some 20,000 nuclear weapons and the raw material for tens of thousands more, in scores of sites scattered throughout the
country. So far, the government has managed to prevent the loss of any weapons or much material. If war erupts, however, Moscow's
already weak grip on nuclear sites will slacken, making weapons and supplies available to a wide range of anti-American
groups and states. Such dispersal of nuclear weapons represents the greatest physical threat America now faces. And it is hard to think
of anything that would increase this threat more than the chaos that would follow a Russian civil war.
SDI 2008 60
WHAM! States/Fism Core

Yes Russian Federalism


Russia is become more and more federalist.
Alexander N. Domrin, former Chief Specialist of the Foreign Relations Committee of the Russian Supreme
Soviet. Spring, 2006. Transnational Law & Contemporary Problems. 15 Transnat'l L. & Contemp. Probs. 515.
“Comparative Constitutional Law at Iowa: From Fragmentation to Balance: The Shifting Model of Federalism in
Post-Soviet Russia.”
Even though complete abandonment of federalism in Russia is very unlikely in the foreseeable future, one
may argue that the current expansion of Russia's federal government activity in virtually all spheres of life
can be considered a sign of a shift in the model of federalism Russian follows. Specifically, it signifies
Russia's transition from "fragmented" federalism based on treaties between the federal center and
subjects of the Federation, implying a relationship more reminiscent of political equals, to "balanced"
federalism that is based on the Federal Constitution and strict compliance with it by the federal units. In
essence, it is a transition from the current "asymmetric" federation to a more structured union, with
presumably one type of subject of the Federation rather than six different types.
SDI 2008 61
WHAM! States/Fism Core

Russia Models US Federalism


Russia models American federalism.
PR Newswire US, 4/7/05. “Members of Congress to Address Russian Federal and Regional Leaders at Moscow
School of Political Studies Seminar; Annual Event to Focus on Federalism, Intergovernmental Relations, and U.S.-
Russia Relations.”
Members of Congress, including Senators Joseph Biden, Carl Levin and John McCain and Representatives
Ron Kind and Tom Lantos, will be among the speakers at a special seminar for high ranking Russian
political and civic leaders sponsored by the Moscow School of Political Studies to be held April 11-13,
2005 in Washington, DC. The seminar, American Federalism and Public Policy, is part of an intense seven-
day visit by 30 federal and regional Russian elected officials and civic leaders, including members of the
State Duma and local parliaments, party and civic leaders, business leaders and journalists. The Russian
delegates will visit Washington, DC and St. Louis, Missouri for a week-long program focused on U.S.
public policy, with a particular emphasis on the American model of federalism and democracy.

Russia models American federalism.


Publius, 3/22/97. “Refederalizing Russia: debates on the idea of federalism in Russia..”
Many proponents of a territorial principle looked to the United States as a model of successful
federalism. Gavril Popov (at that time mayor of Moscow), for example, was one of several leading
"reformers" who proposed a system of territorial federalism in Russia that adhered to a United States
type model. He called for the creation of 10-15 large-scale regions and for the abolition of Russia's
ethno-federal hierarchy. In order to provide for the right of national self-determination, Popov also
proposed the formation of Councils of National Communities at both the regional and the federal levels for
organizing policies on non-Russian language education and the "development" of non-Russian cultures, for
example.(16) Another advocate of a Lander-basedmodel of Russian federalism was the nationalities minister,
Sergei Shakray, who supported the creation of a dozen administrative units. His "February Thesis" in 1993
proposed an eleven-point nationalities policy which stressed the importance of tackling national questions
outside of the federal structure of the Russian state.(17) Another, butless tolerant, view of territorial
restructuring was also provided by the leader of the "Liberal Democratic" party, Vladimir Zhirinovsky,who
proposed abolishing all the republics and national-formations in1991.(18)
SDI 2008 62
WHAM! States/Fism Core

Russian Federalism Good – Civil War


A. Russian federalism is key to prevent Russian civil war.
Yuri Krasan, Director of Social Programmes, the Foundation for Social and Economic Reform, 1994, Federalism
and the New World Order, p. 67
Even the idea that regional separatism will save Russia has recently been expressed. It has been suggested
that, given the likelihood of a collapse of federal structures, it would be possible to preserve a sound social
element only at the regional level, which could become the foundation for a renewal of Russia itself.
Whatever the positive motives may be in support of regionalization, such an approach undermines the
foundation of Russian federalism—the very basis of Russian statehood. Its implementation would turn
Russia into a con-glomerate of peculiar independent principalities without any guarantees that they would
again merge into a single federative organism rather than drifting even further apart, joining different
geopolitical centres. Within the current confrontational political environment in Russia, without an
agreement on a federal structure, Russian territory will become an arena of hostility and struggle,
sterile soil for the development of modern democracy. Given Russia’s nuclear military capability, this
instability has serious implications for the global community. The shaping of a stable Russian
Federation is, thus, a cornerstone for the success of democratization in post-totalitarian Russian society
and for Russia’s transformation into a responsible and influential member of the world community. At the
same time, the development of the Russian Federation is unthinkable outside the context of society’s
democratic reformation. Stability is only possible through improvements in the democratic process and insti-
tutions, including a reform of the federal system that provides for an effective distribution of powers between
the centre and the rest of the federation.

B. Russian civil war leads to nuclear war with the US


Steven R. David, Professor of Political Science at Johns Hopkins University, Foreign Affairs Jan 1999
Should Russia succumb to internal war, the consequences for the United States and Europe will be severe. A
major power like Russia -- even though in decline -- does not suffer civil war quietly or alone. An embattled
Russian Federation might provoke opportunistic attacks from enemies such as China. Massive flows of
refugees would pour into central and western Europe. Armed struggles in Russia could easily spill into its
neighbors. Damage from the fighting, particularly attacks on nuclear plants, would poison the environment
of much of Europe and Asia. Within Russia, the consequences would be even worse. Just as the sheer
brutality of the last Russian civil war laid the basis for the privations of Soviet communism, a second civil
war might produce another horrific regime. Most alarming is the real possibility that the violent
disintegration of Russia could lead to loss of control over its nuclear arsenal. No nuclear state has ever
fallen victim to civil war, but even without a clear precedent the grim consequences can be foreseen. Russia
retains some 20,000 nuclear weapons and the raw material for tens of thousands more, in scores of sites
scattered throughout the country. So far, the government has managed to prevent the loss of any weapons or
much material. If war erupts, however, Moscow's already weak grip on nuclear sites will slacken, making
weapons and supplies available to a wide range of anti-American groups and states. Such dispersal of
nuclear weapons represents the greatest physical threat America now faces. And it is hard to think of
anything that would increase this threat more than the chaos that would follow a Russian civil war.
SDI 2008 63
WHAM! States/Fism Core

Russian Federalism Good – Democratization


A. Federalism is vital to Russian democratization.
Clifford Kupchan, deputy coordinator of U.S. assistance to the New Independent States at the U.S. Department of
State. The Washington Quarterly 23.2 (2000) 67-77. “Devolution Drives Russian Reform.”
Taken together, these four trends promote democracy by institutionalizing the expression of regional
interests and checks on central power. Structural checks impede the rebirth of authoritarianism and
leave the political arena open for a variety of pluralist interests to grow. Given the weakness of the central
government, it will be a very long time before any Russian president will be able to reverse these gains.
Moreover, since devolution has been a primary agent in weakening the authoritarian state, it has
helped create and protect "political space" in Russia. Basic freedoms essential to democracy, and
unheard of in the Soviet Union only eight years ago, are now virtually taken for granted. Examples
include ready access to the Internet, unrestricted contacts with foreigners, freedom to travel, freedom of
artistic expression, and increased--if incomplete--freedom of religion. Many Russian universities, including
those in the regions, are centers of creative and spontaneous thought. 3 Since devolution checks central
power, and since the center is currently and is likely to continue to be very weak, this political space will be
very difficult to take away.

B. Without democratization the risk of a Russian accidental launch greatly increases.


James M. Goldgeier, scholar in foreign policy and international relations at the Library of Congress. AND,
Michael McFaul, professor of political science at Stanford University. 10/1/05. Policy Review. “What to do about
Russia.”
Today, Russian state weakness itself also threatens American national security. U.S. policymakers must
worry about the possibility of nuclear technologies and weapons being stolen or sold on the world black
market. The Russian state's inability to construct an effective early-warning radar system increases the
likelihood of an accidental ballistic missile launch in response to faulty information. Russia's inability to
defend its borders in the Caucasus has opened a new front on the global war on terror.

C. That sparks a global nuclear war and billions of casualties.


PR Newswire, 4/29/98. “NEJM Study Warns of Increasing Risk of Accidental Nuclear Attack; Over 6.8 Million
Immediate U.S. Deaths Possible.”
An 'accidental' nuclear attack would create a public health disaster of an unprecedented scale,
according to more than 70 articles and speeches on the subject, cited by the authors and written by leading
nuclear war experts, public health officials, international peace organizations, and legislators. Furthermore,
retired General Lee Butler, Commander from 1991-1994 of all U.S. Strategic Forces under former Chairman
of the Joint Chiefs of Staff, General Colin Powell, has warned that from his experience in many "war games"
it is plausible that such an attack could provoke a nuclear counterattack that could trigger full-scale
nuclear war with billions of casualties worldwide. The authors describe the immediate effects of an
"accidental" launch from a single Russian submarine that would kill at least six to eight million people in
firestorms in eight major U.S. cities. With hospitals destroyed and medical personnel killed, and with major
communications and transportation networks disrupted, the delivery of emergency care would be all but
impossible, according to Forrow and his colleagues.
SDI 2008 64
WHAM! States/Fism Core

Russian Federalism Good – Russian Economy


Russian devolution is vital to economic growth.
Clifford Kupchan, deputy coordinator of U.S. assistance to the New Independent States at the U.S. Department of
State. The Washington Quarterly 23.2 (2000) 67-77. “Devolution Drives Russian Reform.”
Devolution has hastened the breakup of the Soviet economic system and has created conditions under
which private entrepreneurship has a chance to take root and grow. The centrally planned economy of the
former Soviet Union left Russia with collective agriculture and huge enterprises, some of which employed
entire cities. Few of these enterprises can be salvaged or restructured to function in a market economy. Their
immediate closure, however, would result in massive unemployment and is simply not an option. Russia's
economic future thus depends on the emergence of new productive activities. Devolution promotes market
reform and new productive activities in several ways. It has allowed the creation of successful regional
models of economic [End Page 70] reform. The process gives progressive ideas at the regional level a better
chance of being turned into policy. Indeed, the policies of forward-leaning regional leaders are creating a
canon of success stories and models for other regional governments. The best example is Governor
Prusak in Novgorod. Reform in Novgorod has produced a more favorable tax climate, more transparent
budget procedures, streamlined licensing procedures, and clear land titling. As a result, the number of new
small businesses and foreign investment has dramatically increased. Samara, where roughly 20 percent
of the workforce is employed by small business, is also a success story. Governor Titov has strongly
championed small business and passed a groundbreaking law permitting the privatiza-tion of agricultural
land. The Siberian region of Tomsk is also implementing many of these same reforms.

Devolution is making Russia’s economy more productive and efficient.


Clifford Kupchan, deputy coordinator of U.S. assistance to the New Independent States at the U.S. Department of
State. The Washington Quarterly 23.2 (2000) 67-77. “Devolution Drives Russian Reform.”
Devolution has also helped to promote market reform by producing economic stratification and
competition among regions. Roughly 10 or so "winner regions" are emerging, either because of reformist
policies or the presence of natural resources. Stratification leads to competition, increased efficiency, and
the emulation of successful regions. At least 30 regions have sent delegations to Novgorod to study the
success of its reform. Anecdotal accounts indicate that success in Novgorod has led to competitive
innovations in Leningrad Oblast and St. Petersburg. Officials from many regions have also visited Samara to
study successful reforms.

Russian devolution sparks small business growth.


Clifford Kupchan, deputy coordinator of U.S. assistance to the New Independent States at the U.S. Department of
State. The Washington Quarterly 23.2 (2000) 67-77. “Devolution Drives Russian Reform.”
Finally, devolution has helped create the space in which, slowly but surely, basic entrepreneurial,
rational economic activity can occur. To Western observers the extent of this activity may not look
impressive--for example, small business accounts for 12 percent of Russian gross domestic product (GDP),
compared to roughly 50 percent of U.S. GDP. Efficient market behavior certainly remains the exception, not
the rule, across Russia's regions, and there is great variation among the regions on reform. While I have cited
success stories, Kalmykia, Kursk, and Krasnodar are examples of areas that lag well behind. But devolution
of power has given rise to economic opportunities of which certain regions and many Russians have
taken advantage. There is a palpable economic vibrance in many of Russia's regions. Ordinary Russian
citizens and local government officials across Russia list the growth of small business as a top priority. 5
A concrete indicator of this ferment is the demand for small-business starts among Russians, as demonstrated
by several Western-supported loan programs. Before the August [End Page 71] 1998 crisis, the European
Bank for Reconstruction and Development (EBRD) Russia Small Business Fund had $300 million in
outstanding loans placed through Russian banks, mostly in the regions, with a 99-percent repayment rate.
Bank management believes it could have significantly increased its exposure were it not for resource
constraints. The fund is reorganizing as a result of the crisis, but demand from Russian banks and
entrepreneurs remains strong. The U.S.-Russia Investment Fund, funded by the U.S. government, is
expanding the number of regions where it offers loans to small businesses, and current lending volume
exceeds pre-crisis levels. Over time, small business is likely to grow and become a major political force
for governmental reform.
SDI 2008 65
WHAM! States/Fism Core

2NC Indonesia Impact Module


A. Federalism prevents the dissolution of Indonesia.
Dana Dillon, writer for the Heritage Foundation. “INDONESIA AND SEPARATISM: FINDING A FEDERALIST
SOLUTION.” April 19, 2000, http://www.heritage.org/Research/AsiaandthePacific/EM670.cfm, No. 670
The lack of revenue is also an increasing source of tension. The provincial governments have limited power
to tax or raise revenue. The central government's principal source of revenue--which funds 75 percent of the
national budget--is oil, primarily from the outer islands. Yet very little of that revenue is given back to them.
Money that does return to the provinces usually benefits Jakarta-appointed bureaucrats or government-owned
businesses. Indigenous populations find it difficult to get jobs in the local government, and the military
controls most of the state-owned enterprises. Most Indonesians feel that members of the military are more
interested in protecting their business interests and institutional political rights than in national
security. The repression of civilians by the~i’my and the national police has made them the country’s most
hated and distrusted institutions. However, none of the insurgent groups that arose to battle the injustices has
met with much success. In some cases, insurgents have practiced indiscriminate killing, kidnapping, and
intimidation of innocent civilians and destruction of foreign-owned property and businesses. Rather than
build support for their causes, this behavior strengthens the hand of Jakarta. Separatist grievances focus on
access to revenue and the inability of the provinces to pass and enforce local civil and criminal laws.
Relieving the causes of the endemic insurrections will be difficult, but not an insurmountable task. The
adoption of a system based on federalism could resolve the grievances and weaken the insurrection
movements.

B. Indonesian collapse destroys the signal of US leadership.


Rajan Menon, Professor of International Relations at Lehigh University. Fall, 2001. The National Interest.
“Another Year of Living Dangerously?”
The consequences of Indonesia's breakup would affect American interests, as well. American energy and raw
materials companies (Exxon-Mobil, Texaco, Chevron, Newmont Mining, Conoco and Freeport-McMoRan,
among others) operate in Indonesia, particularly in Aceh, Riau, and West Papua, and many of the ships that
traverse the Strait of Malacca are American-owned. The United States is also a major trader and investor
in East Asia and is to some degree hostage to its fate, especially now that the American economy is
slowing. Moreover, if Indonesia fractures, worst-case thinking and preemptive action among its
neighbors could upset regional equilibrium and undermine the American strategic canopy in East Asia.
The United States has a network of bases and alliances and 100,000 military personnel in the region, and
is considered the guarantor of stability by most states-a status it will forfeit if it stands aside as
Indonesia falls apart. America's competitors will scrutinize its actions to gauge its resolve and acumen.
So will its friends and allies-Australia, Japan, Singapore, Thailand and South Korea-each of whom would
be hurt by Indonesia's collapse.

C. Leadership is essential to prevent global nuclear exchange


Zalmay Khalilzad, RAND, The Washington Quarterly, Spring 1995
Under the third option, the United States would seek to retain global leadership and to preclude the rise of a
global rival or a return to multipolarity for the indefinite future. On balance, this is the best long-term guiding
principle and vision. Such a vision is desirable not as an end in itself, but because a world in which the
United States exercises leadership would have tremendous advantages. First, the global environment would
be more open and more receptive to American values -- democracy, free markets, and the rule of law. Second,
such a world would have a better chance of dealing cooperatively with the world's major problems, such as
nuclear proliferation, threats of regional hegemony by renegade states, and low-level conflicts. Finally, U.S.
leadership would help preclude the rise of another hostile global rival, enabling the United States and the
world to avoid another global cold or hot war and all the attendant dangers, including a global nuclear
exchange. U.S. leadership would therefore be more conducive to global stability than a bipolar or a
multipolar balance of power system.
SDI 2008 66
WHAM! States/Fism Core

Yes Indonesian Federalism


Indonesia is moving to federalism now.
Paul Smoke, Associate Professor of Public Finance and Planning @ NYU Wagner. 2005. The World Bank Report:
East Asia Decentralizes. “Making Local Government Work.”
http://siteresources.worldbank.org/INTEAPDECEN/Resources/dc-full-report.pdf
Decentralization reforms in Indonesia include both devolution of authority and, to a lesser extent,
deconcentration of functions. Deconcentration to provincial authorities was the dominant form of
decentralization before 1999, when the emphasis shifted to devolution to city and district governments. Local
governments have broad functions and receive substantial intergovernmental transfers, but have
limited revenue authority. The country has increasingly developed the legal framework (most recently
through Laws 32 and 33 of 2004), but functional responsibilities and subnational revenues require further
elaboration and regulation.

Indonesian federalism is already working – health care proves.


Samuel S. Lieberman, Staff Associate at the Center for Policy Studies of the Population Council. Joseph J.
Capuno, Assistant Professor at the University of the Philippines School of Economics. AND, Hoang Van
Minh, Vietnamese Doctor. 2005. The World Bank Report: East Asia Decentralizes. “Making Local Government
Work.” http://siteresources.worldbank.org/INTEAPDECEN/Resources/dc-full-report.pdf
In Indonesia, Yogyakarta province showed how to use the country’s still immature decentralized
framework to introduce health sector reforms and elements of a health insurance system. The province
used donor funds to secure technical assistance and conduct assessments, trials, benchmarking,
workshops, training, and coordination meetings with districts, as well as advocacy events. The province
established a board of trustees and new fund-holder institutions, as well as a benefit package and an
insurance premium.

Indonesian federalism is working now – health care proves.


Samuel S. Lieberman, Staff Associate at the Center for Policy Studies of the Population Council. Joseph J.
Capuno, Assistant Professor at the University of the Philippines School of Economics. AND, Hoang Van
Minh, Vietnamese Doctor. 2005. The World Bank Report: East Asia Decentralizes. “Making Local Government
Work.” http://siteresources.worldbank.org/INTEAPDECEN/Resources/dc-full-report.pdf
Decentralization in Indonesia, the Philippines, and Vietnam may help sustain overall improvements in
health that have occurred during the last two decades. Decentralization has appeared to spur local
initiative in planning, delivering, and financing services. Users are now participating in planning in
many regions, leading to more appropriate and better-targeted health services. Volunteers supplement limited
local financial and technical resources. More important, perhaps, citizenship and trust in local government
have deepened. The resulting efficiency gains and social capital support the decentralization of health
services.

Indonesia has already completely decentralized key sectors like education.


Elizabeth M. King, lead economist in the Development Research Group of the World Bank. AND Susana
Cordeiro Guerra, of the World Bank. 2005. The World Bank Report: East Asia Decentralizes. “Making Local
Government Work.” http://siteresources.worldbank.org/INTEAPDECEN/Resources/dc-full-report.pdf
In Indonesia, Laws 22 and 25 of 1999 transferred governance and management of primary and junior
secondary education to district governments, and the upper secondary level to provincial governments,
while the central government retains control of the tertiary level. The Education Law 20 of 2003 takes
decentralization a step further, moving control of basic levels of education from districts to schools
(World Bank 2004a). In Cambodia, recent laws have transferred functions and powers— including the
provision of public services—to communes, and the country plans to boost accountability further by
increasing the “operational autonomy” of schools and postsecondary institutions (Royal Kingdom of
Cambodia 2001).5
SDI 2008 67
WHAM! States/Fism Core

Indonesia Models US Federalism


Indonesia models US federalism
The Washington Times June 19, 2000. “A Loss of Nerve.”
"During a visit to Paris, I listened to French president Jacques Chirac deliver a speech in which he talked
about everything that was wrong with the United States. It is decadent, he said, a terrible place and
Americans do not understand what is going on in world affairs. 'But,' he continued, 'I greatly admire the
advances that the United States has made in the technological realm. . . .' "The United States possesses a
sense of moral universalism that exists nowhere else. When one talks about some sort of example - a
model of human rights, constitutionalism . . . rule of law, and property rights - the United States stands
alone. Not long ago, several Hudson Institute scholars had the opportunity to spend some time in Indonesia,
and we found that Indonesia does not turn for its models to China or Japan; it looks to the United States.
The new Indonesian president is very keen on establishing a form of federalism. What does he look to?
The American Constitution.

Indonesia will model American federalism.


Samantha F. Ravich, fellow in the Asian Studies Program at CSIS. Summer 2000. The Washington Quarterly.
“Eyeing Indonesia through the Lens of Aceh.”
Obviously, whether or not to reconfigure the Indonesian state in the mold of a federalist system is a matter
for the Indonesian people to decide by and among themselves. A closer look at the evolving experience of
the United States in creating a balance between federalism and the rights of the individual states may be
instructive for Indonesia. It is interesting to note that, although Indonesians fear that a federalist system will
weaken the central government, those who argued for or against federalism in America at the dawn of this
country's foundation thought exactly the opposite. The federalist system, as proposed during America's
Constitutional Congress, enshrined a strong central government.
SDI 2008 68
WHAM! States/Fism Core

Indonesian Federalism Good – Indonesian Economy


A. Federalism is key to an economically healthy Indonesia.
Roland White, Senior Public Sector Specialist with the World Bank. AND, Paul Smoke, Associate Professor of
Public Finance and Planning @ NYU Wagner. 2005. The World Bank Report: East Asia Decentralizes. “Making
Local Government Work.” http://siteresources.worldbank.org/INTEAPDECEN/Resources/dc-full-report.pdf
East Asia’s remarkable achievements in economic growth and poverty reduction over the past 30 years can
be attributed largely to significant public investment in human capital formation and infrastructure, and to the
establishment of a regulatory environment conducive to private enterprise.1With decentralization,
subnational governments are now at the heart of a range of investment, fiscal, and regulatory activities
that affect both the pace and quality of economic growth. For example, they are now responsible for
planning and financing economic infrastructure, such as local roads and irrigation schemes, and for
regulating and taxing businesses. In some East Asian countries, such as Cambodia, the role of local and
regional authorities in these areas is still limited. But in most, including China and Indonesia, it has become
crucial.

B. An unstable Indonesian economy brings down all of Southeast Asia.


Samantha F. Ravich, fellow in the Asian Studies Program at CSIS. Summer 2000. The Washington Quarterly.
“Eyeing Indonesia through the Lens of Aceh.”
But what if the reforms fail? Quite simply, Indonesia will be swallowed by an extinction-level event.
Foreign investment, which has slowly returned to the country over the last year, will flee. Foreign donors
(most notably the International Monetary Fund) will likely suspend their loans, and foreign lenders will
refuse to restructure the $ 70 billion of sovereign debt under which Indonesia struggles. The National Unity
cabinet, already showing signs of fracturing, may implode and the military, seeking an opportunity to strike
back against those who humiliated it during the last two years, could try to orchestrate a coup. Into this
mix, some of the outlying provinces (Aceh, Riau, and Irian Jaya) could attempt to formally secede, leading
to the dissolution of the republic. Aside from Indonesia being lost in an economic and political collapse, a
black hole would be created in Southeast Asia. Indonesia, a country of 210 million people, would begin to
siphon off the hopes of smaller countries in the region that wish to regain their economic prowess of the
early 1990s. Foreign investors would become skittish about Indonesia exporting economic instability
beyond its borders and pull their money out of the entire region. Regional governments would be
destabilized by thousands, perhaps millions, of Indonesian refugees flooding the coastlines. The regional
organizations established to handle problems in the area would crumble from infighting and blame-laying
over who forgot to establish the contingency plan. For those who doubt this last point, post-East Timor
discussions at the Association of Southeast Asian Nations (ASEAN) Regional Forum have ratcheted up
tensions among participant states.

C. That causes the end of the world.


Michael May, Engineering-Economic Systems at Stanford, Washington Quarterly, Summer 1997.
The unpalatable facts, to Europeans and North Americans, are that Asia has about half of the world's people,
that it is growing faster than other parts of the world, and that, by mid-century, it will probably have more than
half the population of the developed world and more than half of its money. Energy consumption, economic
influence, and military power will be distributed in proportion. That is the rosy scenario. The dark scenario is
that of a war that would, in all likelihood -- because nuclear weapons can be procured and deployed by any
of these countries at a fraction of the cost of peaceful development --leave most of the civilized world
devastated.
SDI 2008 69
WHAM! States/Fism Core

Indonesian Instability Impact – Global Economy


( ) Indonesian instability kills the global economy.
Rajan Menon, Professor of International Relations at Lehigh University. Fall, 2001. The National Interest.
“Another Year of Living Dangerously?”
Indonesia's size and location are the reasons why. The three major straits that slice through it are pivotal passages for
the global economy. Malacca is by far the most important, particularly for energy shipments. Some 450 vessels and about 10
million barrels of oil pass through daily, and East Asian demand, driven by China, is expected to rise from 12 million barrels a day in
2000 to over 20 million barrels in twenty years. Japan, China, Taiwan and South Korea would suffer severely and
soon if fallout from turmoil in Aceh (at its northern end) or Riau (at its southern end) blocked this passage. Its
narrowness, 1.5 miles in the Phillips Channel in the Singapore Strait, and ten miles between Singapore and the Riau archipelago, adds to
the danger. The Lombok Strait, which ships use to sail to northeast Asia through the Strait of Makasar between Borneo and Sulawesi, is
next in importance, although it handles a far smaller volume of traffic than Malacca and is of negligible importance for energy
shipments. The Lombok-Makasar route is, however, a critical corridor for Australia's coal and iron ore exports to northeast Asia and for
manufactured exports moving south from there. It is also the most likely detour were Malacca rendered impassable or hazardous. By
comparison, Sunda is a minor shipping channel; the consequences of its closure would be minimal for transcontinental trade. Rerouting
Malacca traffic through Lombok would strain the capacity of the world's merchant fleet, increase transportation costs, and create severe
bottlenecks. The problems would be even worse if all three straits were unusable and ships had to transit northeast Asia by skirting
Australia's northern coast. Market signals would eventually add other carrying capacity but the question is how quickly and smoothly the
adjustment occurs, and what the economic and political consequences would be in the meantime. The ramifications of blocked
or delayed maritime traffic, or even just panic over the possibility, would spread speedily throughout
globalization's many circuits. Insurance rates would rise; coverage may even be denied if underwriters deem the risks
excessive. The effects of obstructed energy, machinery and manufactured goods would register in capital markets, short-
term investors would be scared off, and the flow of much-needed foreign direct investment into a region still convalescing
from the blows of 1997 would slow. Piracy in the seas around Indonesia would also worsen if the Jakarta
government either ceased functioning or were so busy holding the country together that it could not
police its waters. The hijacking of ships has increased since Indonesia's upheavals began. There were 113 incidents in its waters in
1999 compared to 60 the year before, and between January and March of 2001 alone, pirates attacked ships in Indonesian waters 29
times and on nine occasions in the Malacca Strait. The vessels victimized near Malaysia, Singapore and Indonesia included several oil
tankers and ships carrying aluminum and palm oil. The three countries began to coordinate operations against the menace in 1992, and in
2000 Japan proposed that its coast guard join the effort along with China and South Korea. Yet how serious piracy becomes, and how
effective any joint solution is, depends primarily on the extent of Indonesia's stability. Refugee flows will also accelerate if
Indonesia starts to break apart. The refugee population of one million already within its borders will soar,
dragging the economy down further and aggravating communal violence. Refugees could also be driven beyond Indonesia into
neighboring countries that are neither prepared to receive them nor able to bear the burden of caring for them. Malaysia, which lies
across the water from Aceh, has already seen rising illegal immigration from Indonesia, and its officials worry about the social tensions
that could result. The refugee problem also figures prominently in Australian and Singaporean discussions of Indonesia.

( ) That causes extinction


Lt. Col, Tom Bearden, PhD Nuclear Engineering, April 25, 2000,
http://www.cheniere.org/correspondence/042500%20-%20modified.htm
Just prior to the terrible collapse of the World economy, with the crumbling well underway and rising, it is inevitable that some of the
[wmd] weapons of mass destruction will be used by one or more nations on others. An interesting result then---as all the old strategic
studies used to show---is that everyone will fire everything as fast as possible against their perceived enemies. The reason is simple:
When the mass destruction weapons are unleashed at all, the only chance a nation has to survive is to desperately try to destroy its
perceived enemies before they destroy it. So there will erupt a spasmodic unleashing of the long range missiles, nuclear arsenals,
and biological warfare arsenals of the nations as they feel the economic collapse, poverty, death, misery, etc. a bit
earlier. The ensuing holocaust is certain to immediately draw in the major nations also, and literally a hell on earth
will result. In short, we will get the great Armageddon we have been fearing since the advent of the nuclear genie. Right now,
my personal estimate is that we have about a 99% chance of that scenario or some modified version of it, resulting.
SDI 2008 70
WHAM! States/Fism Core

No Federalism – General
( ) Despite high state action and activity, states are still in need of more power.
John Dinan, Executive director of the National Governors Association, 6-22-2008, Publius, “The state of
American Federalism 2007-2008: resurgent state influence in the national policy process and continued state policy
innovation,” rks, lexis
States have long been the primary policy innovators in the US federal system, and as Dale Krane has
noted, state policy activism "appears to be increasing at an accelerating pace" during the Bush
presidency (Krane 2007, 462). State officials continued to take the lead on anumber of issues in 2007-
2008, at times acting when federal policy was not forthcoming, at times expressing disagreement with
federal policy, and at times proceeding independently of federal policy-makers (Greenblatt 2007b;
Tubbesing 2008). In fact, as John Kincaid and Richard Cole suggest in their article for this issue, public
awareness andsupport for continued state policy innovation may well account for the post-2005 uptick in
public support for state governments recorded in their annual opinion surveys. As Kincaid and Cole report,
their 2007 survey saw a continued drop in the percentage of individuals responding that state governments
"gave them the least for their money" and a notable increase in the percentage of survey respondents
saying that state governments "need more power."

( ) The Supreme Court is limiting state power, even under federalist justices.
John Dinan, Executive director of the National Governors Association, 6-22-2008, Publius, “The state of
American Federalism 2007-2008: resurgent state influence in the national policy process and continued state policy
innovation,” rks, Lexis Nexis Academic.
The Supreme Court had various opportunities in 2007-2008 to pass judgment on state and local acts in
the face of claims that they ran afoul of the dormant commerce clause, preemption doctrine, and due process
and equal protection clauses of the Fourteenth Amendment. In a number of cases, the Court sustained the
state and local acts. However, on some notable occasions, including in four preemption cases and a case
concerning school integration plans, the Court limited state and local discretion, and in the process
provoked sharp complaints from dissenters--most notably Justices Stevens and Ginsburg--about the
majority's lack of respect for state sovereignty and authority. In fact, in a development that might seem
surprising in light of his votes in constitutional federalism cases but is predictable in light of his votes in
recent preemption cases (Staab 2006, 243), Justice Stevens in 2007-2008 was the most willing of any
Justice to offer extended defenses of state sovereignty and authority in his opinions.

( ) Non-Unique: The Supreme Court ruled against the states in many key cases
John Dinan, Executive director of the National Governors Association, 6-22-2008, Publius, “The state of
American Federalism 2007-2008: resurgent state influence in the national policy process and continued state policy
innovation,” rks, Lexis Nexis Academic.
The Court also ruled against state authority in three key preemption cases decided in early 2008, and
by significant margins in each instance. In Riegel v. Medtronic, No. 06-179 (2008), in a ruling from
which Justice Ginsburg alone dissented, on the grounds that it amounted to a "constriction of state
authority" and "a radical curtailment of state common-law suits seeking compensation for injuries caused by
defectively designed or labeled medical devices," the Court held that the Medical Device Amendments of
1976 (MDA) preempted state common-law challenges to medical devices that had been given
premarket approval by the Food and Drug Administration. Then, in Preston v. Ferrer, No. 06-1463
(2008), with Justice Thomas issuing a lone dissent, the Court ruled that the Federal Arbitration Act
preempted California's Talent Agencies Act to the extent that it called for legal questions arising from a
contract dispute to be initially referred to an administrative agency rather than an arbitrator, as specified in
the federal law. Finally, in Rowe v. New Hampshire Motor Transport Assn., No. 06-457 (2008), with
Justice Ginsburg concurring and Justice Scalia concurring in part, the Court held that the Federal Aviation
Administration Authorization Act of 1994 preempted a Maine law imposing various requirements on the
transportation of tobacco products with an eye to reducing youth smoking. The Court reasoned: "to
interpret the federal law to permit these, and similar, state requirements could easily lead to a
patchwork of state service-determining laws, rules, and regulations."
SDI 2008 71
WHAM! States/Fism Core

No Federalism – General
( ) Congress is nearly tyrannical in its use of the commerce clause – there’s no check on
what they can do
Sarah J. Farley, JD Seton Hall, Spring 2006, “Gonzalez v. Raich,” 2 Seton Hall Cir. Rev. 621, p ln
At first it seems that the ability to prosecute such child sex offenders is a natural offshoot of the ability to
prosecute child pornographers because both involve the serious issue of child exploitation, but in reality there
is a huge leap from one to the other. Mainly, intrastate child pornography occurs in the United States, while
obviously, the foreign child sex trade occurs outside the United States. If Congress were given the power to
prosecute crimes that occur wholly outside its own borders, there could be no natural stopping point for any
crimes, even if they are wholly intrastate or wholly foreign activities. Because Congress has been given so
much leeway to legislate via the Commerce Clause, there are valid and reasonable fears that Congress is
becoming the tyrant the Founders feared when they carefully drafted the Constitution. Based on the
Supreme Court's newest decision there really is no limit on Congress's ability to legislate under the
Commerce Clause, because as defined, an economic activity is one that involves "the production,
distribution, and consumption of commodities." 270 There can hardly be imagined a more broadly
construed definition and there is hardly any product or activity that does not have something to do with
producing, distributing, or consuming a commodity. Without the valuable check provided by the
Judiciary, Congress will continue to expand its jurisdiction over areas that are traditionally and
constitutionally reserved for the states. Unfortunately for the Judiciary and defendants, the Raich decision
reiterated the belief that as-applied challenges to Commerce Clause statutes cannot be entertained, leaving
the courts only facial challenges, which are "the most difficult challenge sk to mount successfully." 271 With
only this one particularly difficult challenge to statutes, presumably the courts are going to be more
hesitant to strike down whole statutes and will defer more to the will of Congress, leaving Congress to
stretch and manipulate the reach of the Commerce Clause unchecked.

( ) Bush and the conservative court have abandoned federalism – laundry list
David Boaz, executive vice president of the Cato Institute and author of Libertarianism: A Primer, “No Federalism
on the Right,” May 19, 2005, http://www.foxnews.com/story/0,2933,156260,00.html
Federalism has always been a key element of American conservatism. In his 1960 manifesto, The Conscience of a Conservative, Barry
Goldwater called for the federal government to "withdraw promptly and totally from every jurisdiction which the Constitution reserves
to the states." Ronald Reagan ran for president promising to send 25 percent of federal taxes and spending back to the states. As
Republicans took control of Congress in 1995, Newt Gingrich stressed that "we are committed to getting power back to the states."
Lately, though, conservatives -- at last in control of both the White House and both houses of Congress -- have forgotten their
longstanding commitment to reduce federal power and intrusiveness and return many governmental functions to
the states. Instead, they have taken to using their newfound power to impose their own ideas on the whole country. Conservatives once
opposed the creation of a federal Education Department. Congressional Republicans warned, "Decisions which are now made in the
local school or school district will slowly but surely be transferred to Washington…. The Department of Education will end up being the
Nation's super schoolboard. That is something we can all do without.'' But President Bush's No Child Left Behind Act
establishes national education testing standards and makes every local school district accountable to
federal bureaucrats in Washington. President Bush and conservative Republicans have been trying to restrain lawsuit abuse by
allowing class-action suits to be moved from state to federal courts. The 2002 election law imposed national standards on the states in
such areas as registration and provisional balloting. A 2004 law established federal standards for state-issued driver's licenses and
personal identification cards. President Bush's "Project Safe Neighborhoods" transfers the prosecution of gun
crimes from states to the federal government. The administration is trying to persuade federal courts to block
implementation of state initiatives on medical marijuana in California and assisted suicide in Oregon. Perhaps most
notoriously, President Bush and conservatives are pushing for a constitutional amendment to ban gay marriage in all 50 states. They talk
about runaway judges and democratic decision-making, but their amendment would forbid the people of New York, Massachusetts,
Connecticut, California or any other state from deciding to allow same-sex marriage. Marriage law has always been a matter for the
states. We should not impose one uniform marriage law on what conservatives used to call "the sovereign states." Most recently, we have
the specter of the Republican Congress seeking to override six Florida court decisions in the tragic case of Terri Schiavo, intruding the
federal government into yet another place it doesn't belong. Asked on Fox News about the oddity of conservatives seeking to over-ride
states' rights, Weekly Standard editor Fred Barnes responded: "Please! States' rights? Look, this is a moral issue."
SDI 2008 72
WHAM! States/Fism Core

AT: Slippery Slope Links


( ) No risk of encroachment that’s substantial enough to alter federalism
Ernest Young, Law Prof @ Texas, May 2003, Texas Law Review, ln
One of the privileges of being a junior faculty member is that senior colleagues often feel obligated to read
one's rough drafts. On many occasions when I have written about federalism - from a stance considerably
more sympathetic to the States than Judge Noonan's - my colleagues have responded with the following
comment: "Relax. The States retain vast reserves of autonomy and authority over any number of
important areas. It will be a long time, if ever, before the national government can expand its authority
far enough to really endanger the federal balance. Don't make it sound like you think the sky is
falling."

( ) Courts will check any snowball


Robert F. Nagel, Law Professor, University of Colorado, March 2001, ANNALS OF THE AMERICAN
ACADEMY OF POLITICAL AND SOCIAL SCIENCE, p. 53
In what appears to be an ambitious campaign to enhance the role of the states in the federal system, the
Supreme Court has recently issued a series of rulings that limit the power of the national government.
Some of these decisions, which set boundaries to Congress's power to regulate commerce and to enforce the
provisions of the Fourteenth Amendment, establish areas that are subject (at least in theory) only to state
regulation. Others protect the autonomy of state governments by restricting congressional authority to
expose state governments to suit in either state or federal courts and to "commandeer" state
institutions for national regulatory purposes. Taken together, these decisions seem to reflect a
judgment held by a slight majority of the justices that the dramatic expansion of the national
government during the twentieth century has put in jeopardy fundamental principles of constitutional
structure.

( ) Congress checks a destruction of federalism


Justice Breyer, 5-15-2000, “United States v. Morrison et al.,” Dissenting Opinion,
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=99-5
The majority, aware of these difficulties, is nonetheless concerned with what it sees as an important contrary
consideration. To determine the lawfulness of statutes simply by asking whether Congress could reasonably have found that aggregated
local instances significantly affect interstate commerce will allow Congress to regulate almost anything. Virtually all local activity, when
instances are aggregated, can have "substantial effects on employment, production, transit, or consumption." Hence Congress could
"regulate any crime," and perhaps "marriage, divorce, and childrearing" as well, obliterating the "Constitution's distinction
between national and local authority." Ante, at 15; Lopez, 514 U. S., at 558; cf. A. L. A. Schechter Poultry Corp. v. United States, 295 U.
S. 495, 548 (1935) (need for distinction between "direct" and "indirect" effects lest there "be virtually no limit to the federal power");
Hammer v. Dagenhart, 247 U. S. 251, 276 (1918) (similar observation). This consideration, however, while serious, does
not reflect a jurisprudential defect, so much as it reflects a practical reality. We live in a Nation knit together by
two centuries of scientific, technological, commercial, and environmental change. Those changes, taken together, mean that virtually
every kind of activity, no matter how local, genuinely can affect commerce, or its conditions, outside the State--at least when considered
in the aggregate. Heart of Atlanta Motel, 379 U. S., at 251. And that fact makes it close to impossible for courts to develop meaningful
subject-matter categories that would exclude some kinds of local activities from ordinary Commerce Clause "aggregation" rules without,
at the same time, depriving Congress of the power to regulate activities that have a genuine and important effect upon interstate
commerce. Since judges cannot change the world, the "defect" means that, within the bounds of the rational, Congress,
not the courts, must remain primarily responsible for striking the appropriate state/federal balance.
Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 552 (1985); ante, at 19-24 (Souter, J., dissenting); Kimel v. Florida
Bd. of Regents, 528 U. S. , (2000) (slip op., at 2) (Stevens, J., dissenting) (Framers designed important structural safeguards to
ensure that, when Congress legislates, "the normal operation of the legislative process itself would adequately defend state interests from
undue infringement"); see also Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 Colum. L. Rev. 215
(2000) (focusing on role of political process and political parties in protecting state interests). Congress is institutionally
motivated to do so. Its Members represent state and local district interests. They consider the views of
state and local officials when they legislate, and they have even developed formal procedures to ensure
that such consideration takes place. See, e.g., Unfunded Mandates Reform Act of 1995, Pub. L. 104-4, 109
Stat. 48 (codified in scattered sections of 2 U. S. C.). Moreover, Congress often can better reflect state
concerns for autonomy in the details of sophisticated statutory schemes than can the judiciary, which
cannot easily gather the relevant facts and which must apply more general legal rules and categories. See, e.g., 42 U. S. C. §7543(b)
(Clean Air Act); 33 U. S. C. §1251 et seq. (Clean Water Act); see also New York v. United States, 505 U. S. 144, 167-168 (1992)
(collecting other examples of "cooperative federalism"). Not surprisingly, the bulk of American law is still state law, and
overwhelmingly so.
SDI 2008 73
WHAM! States/Fism Core

AT: Energy Policy Links


( ) The feds can regulate greenhouse emissions because of the commerce clause – the plan
doesn’t hurt federalism
Robert K. Huffman, lawyer, and Jonathan M. Weisgall, VP at MidAmerican Holdings,Winter 2008, “Climate
Change and the States,” Sustainable Development Journal,
http://www.wcl.american.edu/org/sustainabledevelopment/2008/winter08.pdf?rd=1
The United States’ system of federalism allows the federal and state governments to share power in
certain areas, while each maintains exclusive areas where the other may not regulate. The power of the
federal government is constrained by the Constitution and does not include general police powers, which are reserved to the states.46
State governments, however, may not regulate certain aspects of interstate and foreign commerce, foreign affairs, and other areas of
reserved federal power. When states take actions to regulate greenhouse gases, it raises questions about the
extent of state authority to regulate the economy and the environment. Linking emissions trading programs or
enacting auto emissions regulations brings states to the far end of their regulatory authority, given the transborder nature of emission
trading and carbon dioxide emissions generally. This section explores the constitutional issues that can potentially arise from state
actions to reduce GHG emissions. Commerce Clause The Commerce Clause, Article I, § 8, cl. 3, gives the federal
government the power “[t]o regulate Commerce with foreign Nations, and among the several States[.]”47 The Supreme
Court has long considered the Commerce Clause to be “an implicit restraint on state authority, even in the absence of a conflicting
federal statute.”48 This concept is known as the Dormant Commerce Clause—wherein the Constitution acts as a prohibition on certain
types of state actions that affect interstate commerce, invalidating the state law by negative implication.49 Although the Dormant
Commerce Clause doctrine has gained widespread acceptance, at least two current Supreme Court justices (Justice Scalia and Justice
Thomas) reject it altogether. Regardless of these two justices, it is highly unlikely that a majority of the Court would
reject the Dormant Commerce Clause doctrine. Were the doctrine to be rejected by the Court, state actions would never
be invalidated for conflicting with unexercised congressional power under the Commerce Clause, but would be subject to invalidation
only for express or implied preemption by federal law.

( ) Federal control over renewables is justified – it’s a national issue, climate change
requires coordination, and emissions are international
Robert W. Eberhardt, JD NYU, 2006, “Federalism and the Siting of Offshore Wind Energy Facilities,” 14
N.Y.U. Envtl. L.J. 374, ln
The potential environmental benefits associated with climate change mitigation raise somewhat distinct questions about the theoretical justifications for state environmental regulation
of offshore wind energy facilities. First, because greenhouse gases disperse evenly in the atmosphere and climate change
stands to affect local environments in locations across the country, climate change clearly is an
environmental concern of national dimensions. Emissions reductions resulting from the development of a facility have the potential to generate
positive horizontal spillovers, and thus a state-based siting regime could lead to the construction of fewer facilities than justified by efficiency criteria. n145 This could
justify national regulations with a preemptive effect over restrictive state siting standards. Second, the sheer scale of the mitigation effort required
to stabilize ambient greenhouse gas concentrations requires the implementation of multiple mitigation measures at a large scale. This sets up a classic prisoner's dilemma among the
states, and the resulting coordination problem provides a theoretical justification for national regulation. One offshore wind energy facility (even if it completely displaced electricity
generated by an inefficient conventional coal-fired power plant) would result in emissions reductions dwarfed by total regional emissions and the scale of reductions required to
stabilize ambient concentrations. n146 As a result, an effective climate change strategy likely would require the [*408] development of multiple facilities under the regulation of
multiple states and, without assurances that other states will follow suit, a state may rationally conclude that climate change mitigation benefits do not justify the acceptance of scenic
or aesthetic impacts or other environmental costs. Furthermore, coordination problems are intensified by the fact that offshore wind energy is only one of many potential climate
change mitigation measures, and an effective climate change strategy undoubtedly will require other measures in other sectors and in other states lacking offshore wind resources.
n147 General inattention or hostility by other states to climate change mitigation could offset any reductions resulting even from the large-scale development of offshore wind energy
The need to coordinate activities among states, and to prevent states
facilities, further intensifying coordination problems. n148
from making collectively irrational regulatory decisions, provides a theoretical justification for federal
regulation addressing climate change mitigation measures that would have a preemptive effect over
more restrictive state siting criteria. n149 Third, climate change is a problem of international dimensions;
emissions from all sources contribute to climate change, and climate change stands to affect local
environmental conditions across the globe. In the U.S. federal system, the national government, through the
Senate's power to ratify treaties and the President's inherent powers over foreign affairs, has the power to
negotiate and enter into agreements with co-equal sovereign governments to address issues of
international dimensions. n150 Given the national government's role in international affairs, federal
regulation of climate change mitigation measures may be theoretically justified by the potential for
state actions to affect the ability of the national government [*409] to meet treaty obligations or secure
commitments from other countries favorable to the nation as a whole. n151 Depending on the relative
positions on climate change taken by the state and national governments, preemptive effects prohibiting more
restrictive or more permissive state regulation may be justified.
SDI 2008 74
WHAM! States/Fism Core

Federalism Is Not Modeled


( ) American federalism isn’t modeled – multinational states prove
Alfred Stepan, Professor of Government at Oxford and Columbia, 1999, Journal of Democracy 10.4, 19-34,
“Federalism and Democracy: Beyond the U.S. Model,” muse
In seeking to understand why some countries are reluctant to adopt federal systems, it is helpful to examine what political science has
had [End Page 20] to say about federalism. Unfortunately, some of the most influential works in political science today offer
incomplete or insufficiently broad definitions of federalism and thereby suggest that the range of choices
facing newly democratizing states is narrower than it actually is. In large part, this stems from their
focusing too exclusively on the model offered by the United States, the oldest and certainly one of the most
successful federal democracies. One of the most influential political scientists to write about federalism in the last half-century, the late
William H. Riker, stresses three factors present in the U.S. form of federalism that he claims to be true for federalism in general. 1 First,
Riker assumes that every longstanding federation, democratic or not, is the result of a bargain whereby previously sovereign polities
agree to give up part of their sovereignty in order to pool their resources to increase their collective security and to achieve other goals,
including economic ones. I call this type of federalism coming-together federalism. For Riker, it is the only type of federalism in the
world. Second, Riker and many other U.S. scholars assume that one of the goals of federalism is to protect individual rights against
encroachments on the part of the central government (or even against the "tyranny of the majority") by a number of institutional devices,
such as a bicameral legislature in which one house is elected on the basis of population, while in the other house the subunits are
represented equally. In addition, many competences are permanently granted to the subunits instead of to the center. If we can call all of
the citizens in the polity taken as a whole the demos, we may say that these devices, although democratic, are "demosconstraining."
Third, as a result of the federal bargain that created the United States, each of the states was accorded the
same constitutional competences. U.S. federalism is thus considered to be constitutionally symmetrical.
By contrast, asymmetrical arrangements that grant different competencies and group-specific rights to
some states, which are not now part of the U.S. model of federalism, are seen as incompatible with the principled
equality of the states and with equality of citizens' rights in the post-segregation era. Yet although these three points are a reasonably
accurate depiction of the political structures and normative values associated with U.S. federalism, most democratic countries
that have adopted federal systems have chosen not to follow the U.S. model. Indeed, American-
style federalism embodies some values that would be very inappropriate for [End Page 21] many
democratizing countries, especially multinational polities. To explain what I mean by this, let me review
each of these three points in turn.

( ) Emerging democracies of the past 20 years prove the US federalist model no longer
holds sway – this evidence is the most historically factual and should be preferred.
Andrew Moravcsik, Professor of Politics at Princeton University. Newsweek, 1/31/05. “Dream On, America.”
Once upon a time, the U.S. Constitution was a revolutionary document, full of epochal innovations--free elections, judicial review,
checks and balances, federalism and, perhaps most important, a Bill of Rights. In the 19th and 20th centuries, countries around the world
copied the document, not least in Latin America. So did Germany and Japan after World War II. Today? When nations write a
new constitution, as dozens have in the past two decades, they seldom look to the American model.
When the soviets withdrew from Central Europe, U.S. constitutional experts rushed in. They got a polite hearing, and were sent home.
Jiri Pehe, adviser to former president Vaclav Havel, recalls the Czechs' firm decision to adopt a European-style parliamentary system
with strict limits on campaigning. "For Europeans, money talks too much in American democracy. It's very prone to
certain kinds of corruption, or at least influence from powerful lobbies," he says. "Europeans would not want to follow that route." They
also sought to limit the dominance of television, unlike in American campaigns where, Pehe says, "TV debates and photogenic looks
govern election victories." So it is elsewhere. After American planes and bombs freed the country, Kosovo opted
for a European constitution. Drafting a post-apartheid constitution, South Africa rejected
American-style federalism in favor of a German model, which leaders deemed appropriate for the
social-welfare state they hoped to construct. Now fledgling African democracies look to South Africa as
their inspiration, says John Stremlau, a former U.S. State Department official who currently heads the international relations department
at the University of Witwatersrand in Johannesburg: "We can't rely on the Americans." The new democracies are looking for a
constitution written in modern times and reflecting their progressive concerns about racial and social equality, he explains. "To borrow
Lincoln's phrase, South Africa is now Africa's 'last great hope'." Much in American law and society troubles the world these days.
Nearly all countries reject the United States' right to bear arms as a quirky and dangerous anachronism.
They abhor the death penalty and demand broader privacy protections. Above all, once most foreign systems reach a
reasonable level of affluence, they follow the Europeans in treating the provision of adequate social welfare is a basic right. All this, says
Bruce Ackerman at Yale University Law School, contributes to the growing sense that American law, once the world
standard, has become "provincial." The United States' refusal to apply the Geneva Conventions to certain
terrorist suspects, to ratify global human-rights treaties such as the innocuous Convention on the Rights of
the Child or to endorse the International Criminal Court (coupled with the abuses at Abu Ghraib and
Guantanamo) only reinforces the conviction that America's Constitution and legal system are out of
step with the rest of the world.
SDI 2008 75
WHAM! States/Fism Core

Federalism Bad Impact – Ethnic Conflict


A. Federalism sparks ethnic conflict
Willy Mutunga, Executive Director of the Kenya Human Rights Commission, The Nation, May 20, 2001.
Federalism promotes localism, ethnic and racial xenophobia and undermines the sense of nationhood.
Unsurprising the United States and Nigeria are living survivors of debilitating separatist wars between
their regions; India, despite its federal miracle still bleeds from secessionist movements. The introduction
of ethnic-based 'quasi-regionalism' in post-Mengistu Ethiopia has fuelled the conflict over the proposed
Oromia state by members of the Oromo ethnic population. Majimboism in the early 1960s had let off the lid
of secessionist movements, particularly by Kenyan Somalis in North Eastern Province and the clamour for an
autonomous "Mwambao" on the Coast. There is no guarantee that this time around, majimboism will not
trigger ethnic recidivism and separatist movements, especially in North Eastern, Coast and Eastern province
where the Oromo population may lean towards the movement for an Oromia state. Federalism's main
weakness is that it is a very expensive system that duplicates services and office holders at the regional and
federal levels. It lacks uniform policies on such issues of national concern as laws regulating marriages,
divorce, abortions, liquor, voting rights and public education. Rather than ensuring economic equity, as many
proponents of majimboism assume, it sets those regions, states or cantons with a weak market-base,
capital, and resources down the spiral of economic decline. It subjects local governments to double
subordination-by the central and regional governments-and the citizens to triple taxation. At a time when
the country's economy is on its knees, the feasibility of a well-financed transition is highly doubtful.

B. This risk of ethnic conflict outweighs.

1. Risk
World Policy Journal March 22, 1999
"The defining mode of conflict in the era ahead," Sen. Daniel Patrick Moynihan declared in 1993, "is
ethnic conflict. It promises to be savage. Get ready for 50 new countries in the world in the next 50
years. Most of them will be born in bloodshed."Moynihan's apocalyptic vision is not untypical of the
prevailing wisdom. History, it seems to many, has exacted its own revenge on what Francis Fukuyama so
rashly suggested was the posthistorical world, in the form of conflicts sparked and sustained by ancient and
incomprehensible hatreds and bloodlusts. To many analysts, class conflict is passe; the "proxy wars" of the
Cold War era can, by definition, no longer occur; and even realpolitik, with rational states pursuing their
clearly defined interests, seems dated. Ethnicity, it seems, is the new, dominant causality.

2. Magnitude
Los Angeles Times, February 26, 1993
It is federalism and confederation that we should be pushing -- not ethnic independence. We should be
tentatively exploring whether some type of Yugoslav confederation is a solution that would make it easier for
different ethnic groups to live together in the new states. The problems we see in Bosnia are nothing
compared to the bloodshed -- and the danger of fascists coming into control of nuclear weapons -- that
would occur if huge multiethnic countries like India, Pakistan and Indonesia start disintegrating.
SDI 2008 76
WHAM! States/Fism Core

Federalism Bad Impact – Secession


A. Federalism leads to secessionist fragmentation
Michael Kelly, Director of Legal Research, Writing & Advocacy at Michigan State University's Detroit College of
Law, 1999, Drake Law Review
However, as political sovereign entities, federations are inherently susceptible to fragmentation. Indeed,
the fault lines along which a potential break can occur are usually already in place-fixed politically,
historically, or both. This flows partially from the inherent internal inequality of their collective constituent
parts. In the international legal system, individual nation-states are formally accorded equal legal status vis-a-
vis each other. The reality, however, is that nation-states are clearly unequal in both power and ability.
Likewise, federations generally accord equal legal status among their constituent parts, be they states,
provinces, regions, or oblasts. And just as in the international system, the reality is that those constituent
parts are often unequal in terms of development, population, and economic power. For example, just as
France and Fiji share equal legal status on the international plane but are vastly unequal in reality, California
and Rhode Island enjoy equal legal status under the United States Constitution, but are [*242] unequal in
reality. The same comparisons can be made between many internal regions of almost any federation:
Nizhniy-Novgorod and Yakutia in Russia, Uttar Pradesh and Manipur in India, Amazonia and Rio in Brazil,
or Ontario and Prince Edward Island in Canada. Consequently, inequality is a fundamental feature in almost
any federation, whether or not it breeds secessionist ideas on its own. Just as devolution has been seized
upon by nation-states, federal or otherwise, as a way to address the self-deterministic aspirations of
communities within their borders, so too has federalism been attempted by non-federal nation-states as a
self- preservationist move toward the middle ground between separatists and advocates of stronger
centralized government. The examples, however, of Mali, Uganda, Ethiopia, Zaire (now Congo), Nigeria,
Kenya, and the Cameroons bear out the conclusion that these efforts, at least in post-colonial Africa,
have generally failed, except for the notable recent example of South Africa under its new constitution.
Consequently, while federated systems of government can work in multi-ethnic states, with the appropriate
degree of top-down devolution of administration and self-government, it seems that they cannot be
universally extrapolated to work in every instance. A. Recent Federated Break-ups Nonetheless, when
inherent inequality is added to other, seemingly dormant, fragmentary ingredients such as historical,
ethnic, religious, customary, or linguistic differences, a divisive stew can come to brew in which one of
the potatoes may try to jump out of the pot. Indeed, the recent federated crack-ups of the U.S.S.R.,
Yugoslavia, and Czechoslovakia demonstrate that the pot itself may burst, allowing all of the elements
previously held together to spill forth and go their separate ways. While this Article does not address the
political, theoretical, economic, or social failures of the communist philosophy that was applied to the
countries of Eastern Europe and the Soviet Union, it does take note of the fact that these were all federal
systems, at least on paper, that spun apart into separate, smaller, more ethnically homogenous nation-states
after the fall of communism in Europe. Table 3 delineates some previously federated nation-states that have
broken down into smaller successor states during this decade.

B. Unbridled secession leads to global war and WMD use


Gidon Gottlieb, Leo Spitz Professor of International Law and Diplomacy University of Chicago Law School,
1993, Nation Against State, p. 26-27
Self-determination unleashed and unchecked by balancing principles constitutes a menace to the society of
states. There is simply no way in which all the hundreds of peoples who aspire to sovereign independence
can be granted a state of their own without loosening fearful anarchy and disorder on a planetary scale.
The proliferation of territorial entities poses exponentially greater problems for the control of weapons
of mass destruction (WMD) and multiplies situations in which external intervention could threaten the
peace. It increases problems for the management of all global issues, including terrorism, AIDS, the
environment, and population growth. It creates conditions in which domestic strife in remote territories can
drag powerful neighbors into local hostilities, creating ever widening circles of conflict. Events in the
aftermath of the breakup of the Soviet Union drove this point home. Like Russian dolls, ever smaller ethnic
groups dwelling in larger units emerged to secede and to demand independence. Georgia, for example, has to
contend with the claims of South Ossetians and Abkhazians for independence, just as the Russian Federation
is confronted with the separatism of Tartaristan. An international system made up of several hundred
independent territorial states cannot be the basis for global security and prosperity.
SDI 2008 77
WHAM! States/Fism Core

Federalism Bad Impact – Economy


Federalism hurts economic stability.
Sudarshan Gooptu, Economist with the Debt and International Finance Division in the International Economics
Department of the World Bank. 2005. The World Bank Report: East Asia Decentralizes. “Making Local
Government Work.” http://siteresources.worldbank.org/INTEAPDECEN/Resources/dc-full-report.pdf
International experience since the early 1980s, especially in Latin America, suggests that without
appropriate accountability and transparency mechanisms, decentralization can encourage dangerous
opportunistic behavior by state and local authorities. If left unchecked, such opportunism could
undermine macroeconomic stability. The most vivid manifestation of this phenomenon is the softening of
subnational budget constraints (Rodden 2000a; World Bank 2002). Avoiding this risk depends on the ability
of the central government to prevent subnational authorities from passing their liabilities to higher-level
governments.12 This, in turn, requires institutional mechanisms to discipline borrowing by state and local
governments.
SDI 2008 78
WHAM! States/Fism Core

No Russian Federalism
( ) Russian federalism is already weak – total lack of federal control
Gregory Shvedov, director of media in Kavkaz, 6-19-2008, “Hearing,” FNS, ln
The first thing I want to touch base would be the lack of federal control. We saw this map on the screen,
when we observed the video which was made by Memorial, and it was good to recognize that the Northern
Caucasus is a small part of the south of Russia. But it was also good to recognize to what extent this is a part
of Russia. Unfortunately, during the last year is we do see that it is less and less a region which is under
the control of federal authorities. What do I mean by this? I don't mean that the separatist movement
is really developed very much in the regions of the Northern Caucasus. Not this is the main point. The
main point is that the level of control, the level of federalism in Russia in general is really very weak.
And especially in the Northern Caucasus, we can hardly see that. These regions are part of a bigger Russia.

Russia isn’t federalist now – extensive central power proves.


Alexander N. Domrin, former Chief Specialist of the Foreign Relations Committee of the Russian Supreme
Soviet. Spring, 2006. Transnational Law & Contemporary Problems. 15 Transnat'l L. & Contemp. Probs. 515.
“Comparative Constitutional Law at Iowa: From Fragmentation to Balance: The Shifting Model of Federalism in
Post-Soviet Russia.”
Adopted in December 1993 in the aftermath of a violent, bloody confrontation between the Russian Federal
Parliament and the President (occurring in September and October 1993; with Yeltsin's troops killing
hundreds of protesters and defenders of the Parliament and the Constitution), 32 the new Constitution of
Russia created an "imperial presidency" (or "superpresidential") form of government in the country. As to the
federal model, the Constitution essentially introduced a centralized [*523] federation with elements of
a unitary system. Unlike in the Constitution of the Russian Soviet Federative Socialist Republic (RSFSR),
33 the units themselves are formally defined as "subjects" rather than "constituent units" of the Russian
Federation. 34 Article 71 of the 1993 Constitution defines the area of exclusive federal jurisdiction. 35
The area is extremely broad. It would be fair to say that most of contemporary Russian law is federal
law. It includes the main Russian codes of legislation: the Civil Code, the Code of Civil Procedure, the
Criminal Code, the Code of Criminal Procedure, and the Code of Arbitration Procedure; as well as almost all
commercial law. 36 The areas of exclusive federal jurisdiction also include control over federal
property, the federal budget, federal taxes, transport, communications, power generation, currency,
the treasury, financial institutions, postal service, armed forces, defense and security, foreign policy,
and foreign economic relations.

Russia is following a highly centralized path now.


Alexander N. Domrin, former Chief Specialist of the Foreign Relations Committee of the Russian Supreme
Soviet. Spring, 2006. Transnational Law & Contemporary Problems. 15 Transnat'l L. & Contemp. Probs. 515.
“Comparative Constitutional Law at Iowa: From Fragmentation to Balance: The Shifting Model of Federalism in
Post-Soviet Russia.”
On December 8, 2004, the Federation Council (by a vote of 145-1, with two abstentions) approved new
legislation that eliminates direct gubernatorial elections across the country. Three days later, Russian
President Vladimir Putin signed the bill into law. The newly adopted Federal Law No. 159-FZ on
Amendments to the Federal Law on the General Principles of the Organization of Legislative
(Representative) and Executive Organs of State Power in the Subjects of the Russian Federation and the
Federal Law on the Main Guarantees of Electoral Rights and a Right to Participate in a Referendum of
Citizens of the Russian Federation 114 legislatively confirmed the practice of the de facto appointment of
heads of Russia's regions. The Law No. 159-FZ became another significant step in the series of measures
aimed at reforming the Russian federal structure. Vladimir Putin announced the new principles for forming
regional authorities on September 13, 2004, after the tragic events in Beslan. 115 The proposal to nominate
heads of Russia's regions by the RF President, instead of electing them by direct vote, was voiced along with
other initiatives that were supposed to mobilize the society, strengthen the Russian nation, improve
administration of the subjects of the Russian Federation, and make them capable of responding appropriately
to modern threats and challenges. These moves toward the greater centralization of power are seen by
the Russian federal government, its political elite, and the general public as necessary to keep the
country unified. 116
SDI 2008 79
WHAM! States/Fism Core
SDI 2008 80
WHAM! States/Fism Core

Russia Doesn’t Model US Federalism


Russia won’t model American federalism, if they’re federalist at all it’ll be Russian style.
Evgueni Vladimirovich Pershin, second director of the Analytical Department of the Federation Council
Apparatus. Kazan Federalist, 2003. Number 4 (8). “Issues in the improvement of Russian federalism.”
http://www.kazanfed.ru/en/publications/kazanfederalist/n8/4/
The current state of federal relations in Russia requires practical steps aimed at its fundamental
modernization. However, we should not forget that Russian federalism is a national product. It will not
and should not look like the American or German models. Understanding of the foreign experience is
important only to produce an essentially new model of federal relations at the next stage of self-
development, which the researchers will later call “the Russian model of federalism.”

Russia models Britain federalism not American federalism.


Evgueni Vladimirovich Pershin, second director of the Analytical Department of the Federation Council
Apparatus. Kazan Federalist, 2003. Number 4 (8). “Issues in the improvement of Russian federalism.”
http://www.kazanfed.ru/en/publications/kazanfederalist/n8/4/
If we can find the optimal variant of territorial power organization for Russia in the vast foreign
experience, it would probably be the devolution processes that are on the way in Great Britain, Spain and
a number of other states. This experience is much closer to Russia than the experience of federal state in
Germany or America. Devolution is also not a panacea but a way or a method to solve state building
problems.

Russia’s model accords different powers to different states making it incompatible with the
US model.
Alexander N. Domrin, former Chief Specialist of the Foreign Relations Committee of the Russian Supreme
Soviet. Spring, 2006. Transnational Law & Contemporary Problems. 15 Transnat'l L. & Contemp. Probs. 515.
“Comparative Constitutional Law at Iowa: From Fragmentation to Balance: The Shifting Model of Federalism in
Post-Soviet Russia.”
Unlike in the United States and some other federations of the world whose states, provinces, or lands enjoy
equal political status, subjects of the Russian Federation have varying statuses. Even though the
Constitution proclaims that federal units have equal rights and responsibilities and "enjoy full state power
outside the limits of jurisdiction" of the Federation or the spheres of "joint competence," 4 in practical terms,
some subjects enjoy "full state power" more than others. In this respect, it is fair to say that some
component units of the Russian Federation (always those with a relatively significant percentage of ethnic
minorities in their population) are more "equal" than others.
SDI 2008 81
WHAM! States/Fism Core

Russian Federalism Bad – Civil War


A. Russian devolution will lead to secession and civil war
Steven R. David, Professor of Political Science at Johns Hopkins University, Foreign Affairs Jan 1999
Divining the military's allegiance is crucial, however, since the structure of the Russian Federation makes it
virtually certain that regional conflicts will continue to erupt. Russia's 89 republics, krais, and oblasts grow
ever more independent in a system that does little to keep them together. As the central government finds
itself unable to force its will beyond Moscow (if even that far), power devolves to the periphery. With the
economy collapsing, republics feel less and less incentive to pay taxes to Moscow when they receive so
little in return. Three-quarters of them already have their own constitutions, nearly all of which make some
claim to sovereignty. Strong ethnic bonds promoted by shortsighted Soviet policies may motivate non-
Russians to secede from the Federation. Chechnya's successful revolt against Russian control inspired
similar movements for autonomy and independence throughout the country. If these rebellions spread
and Moscow responds with force, civil war is likely.

B. Russian civil war leads to nuclear war with the US


Steven R. David, Professor of Political Science at Johns Hopkins University, Foreign Affairs Jan 1999
Should Russia succumb to internal war, the consequences for the United States and Europe will be severe. A
major power like Russia -- even though in decline -- does not suffer civil war quietly or alone. An embattled
Russian Federation might provoke opportunistic attacks from enemies such as China. Massive flows of
refugees would pour into central and western Europe. Armed struggles in Russia could easily spill into its
neighbors. Damage from the fighting, particularly attacks on nuclear plants, would poison the environment
of much of Europe and Asia. Within Russia, the consequences would be even worse. Just as the sheer
brutality of the last Russian civil war laid the basis for the privations of Soviet communism, a second civil
war might produce another horrific regime. Most alarming is the real possibility that the violent
disintegration of Russia could lead to loss of control over its nuclear arsenal. No nuclear state has ever
fallen victim to civil war, but even without a clear precedent the grim consequences can be foreseen. Russia
retains some 20,000 nuclear weapons and the raw material for tens of thousands more, in scores of sites
scattered throughout the country. So far, the government has managed to prevent the loss of any weapons or
much material. If war erupts, however, Moscow's already weak grip on nuclear sites will slacken, making
weapons and supplies available to a wide range of anti-American groups and states. Such dispersal of
nuclear weapons represents the greatest physical threat America now faces. And it is hard to think of
anything that would increase this threat more than the chaos that would follow a Russian civil war.
SDI 2008 82
WHAM! States/Fism Core

Russian Federalism Bad – Economy


Centralization is crucial to Russian economic growth and preventing corruption
Olivier Blanchard and Andrei Shleifer, MIT Department of Economics; National Bureau of Economic
Research and Harvard University, Department of Economics; National Bureau of Economic Research.
“Federalism with and without political centralization. China versus Russia,” Working Paper No. 00-15; Harvard
Institute of Economics Research Paper No. 1889 Feb 2000.
Over the last decade, China's GDP has grown at one of the highest rates in the world, Russia's at one of
the lowest. The di®erence has come mostly from the growth of the new private sector. In China, the new
private sector has thrived. In Russia, it has stagnated. Why this sharp divergence between private sector
evolutions? In both countries, the evidence points to the importance of the behavior of local governments.
In China, local governments have actively contributed to the growth of new ?rms (Oi [1992], Qian and
Weingast [1997].) In Russia, local governments have typically stood in the way, be it through taxation,
regulation, or corruption (Shleifer [1997], Johnson et al. [1997], McKinsey [1999], and EBRD [1999].)1
There are two main hypotheses for the attitudes of local governments in Russia: The ?rst, call it \capture", is
that local governments have been captured by the initial rent holders, primarily by the old ?rms which
dominated the Russian economy before the transition. In that view, local governments have worked both to
generate transfers to these ?rms, and to protect them from competition by new ?rms. In this ?rst view, their
hostile attitude vis a vis the new private sector has been deliberate. The second view, call it \competition for
rents", is that the behavior of local governments has been instead the unintended result of
administrative disorganization. Too many agencies have tried to extract rents from new private firms,
making it unprofitable to create or run a private business, at least legally.2 These two lines of
explanation are plausible, and not mutually exclusive. But they raise the obvious question of why things
have been di®erent in China. Here again, there are two main hypotheses: The ?rst is that the initial rent
holders were weaker in China than in Russia. China started its transition from a very low level of economic
de- velopment. Its agriculture did not rely on large collective farms, and its industry had relatively few large
entreprises. Russia, in contrast, started its transition as a fully industrialized economy, dominated by large
state ?rms and collective farms. According to this view, the potential for capture was simply more limited in
China than in Russia. The second points to the strength of the central government in China. Transition in
China has taken place under the tight control of the communist party. As a result, the central government has
been in a strong position both to reward or to punish local administrations, reducing both the risk of local
capture and the scope of competition for rents (Huang [1998]). By contrast, transition in Russia has come
with the emergence of a fledgling democracy. The central government has been neither strong enough
to impose its views, nor strong enough to set clear rules about the sharing of the proceeds of growth
(Shleifer and Treisman [1999], Treisman [2000]). As a result, local governments have had few incentives
either to resist capture or to rein in competition for rents. The aim of this paper is to explore this last
argument, and more gen- erally to explore the role of federalism in transition. The question is an important
one: Based on the experience of China, a number of researchers have argued that federalism could play a
central role in development (see in particular Qian and Weingast [1997], Roland [2000].) Indeed, a new
term, \market preserving federalism" has been coined to emphasize the bene?ts of decentralization for
Chinese growth. We agree, but with an important caveat. We believe the experience of Russia indicates
that another ingredi- ent is crucial, namely political centralization. In doing so, we echo a theme ?rst
developed by Riker [1964]: For federalism to function and to endure, it must come with political
centralization.
SDI 2008 83
WHAM! States/Fism Core

No Indonesian Federalism
Indonesian decentralization is failing now – health care.
Samuel S. Lieberman, Staff Associate at the Center for Policy Studies of the Population Council. Joseph J.
Capuno, Assistant Professor at the University of the Philippines School of Economics. AND, Hoang Van
Minh, Vietnamese Doctor. 2005. The World Bank Report: East Asia Decentralizes. “Making Local Government
Work.” http://siteresources.worldbank.org/INTEAPDECEN/Resources/dc-full-report.pdf
Indonesia has not clarified the health roles and responsibilities of central and lower governments after
three years of decentralization. Nor has the country moved to emphasize core public health functions,
or seen marked improvements in specific areas such as infectious disease control, pharmaceuticals, and
human resources. Sectors besides health also have indeterminate policies, prompting advice to clarify
assignments across levels of government and sectors (World Bank 2003a).

Federalism won’t happen in Indonesia – historical legacy.


Anthony Smith, lecturer in international relations, Faculty of International Studies, International Pacific College,
9/1/2001. New Zealand International Review.
Aside from these specific cases of regional turmoil, the centre-province relationship has changed since the
fall of Suharto in May 1998. The provinces have universally demanded some degree of power sharing after
the demise of the very dominant centre that characterised the New Order Regime of Suharto. The provinces
and districts now elect their own leaders, and are no longer subject to Jakarta's interference. To undercut anti-
Jakarta sentiment it has been a political imperative to consider autonomy. Indonesia's situation would, on
the face of it, lend itself to federalism, but there are some powerful barriers to the adoption of such
arrangements. Indonesia was briefly a federal polity after the Dutch left Indonesia in 1949. In less than
a year, however, the Republic of the United States of Indonesia was abandoned. It was seen as a colonial
legacy, one designed to weaken the fledgling state.

The colonial legacy hampers any chance of Indonesian federalism.


Andrew MacIntyre, Professor at Graduate School of International Relations and Pacific Studies, March 7
2000.“Does Indonesia Have to Blow Apart.” http://www-irps.ucsd.edu/irps/speeches/spmacintyreDRT030700.html
So there are all sorts of questions being asked. Anybody looking at Indonesia from the outside would quickly
say, "What this country clearly needs is a good dose of federalism." And yet federalism is a curiously dirty
word in Indonesia. Which goes back to historical reasons, the way in which the Dutch meddled in
Indonesia and tried to foist a federal system on them that was clearly designed to fail. There are very
bad memories of federalism. It's a word that's not legitimate in public debate.

There is no move towards Indonesian federalism now.


Samantha F. Ravich, fellow in the Asian Studies Program at CSIS. Summer 2000. The Washington Quarterly.
“Eyeing Indonesia through the Lens of Aceh.”
The proposed solutions intended to co-opt the four constituencies of Aceh may only prove a short-term fix if
a systemic change to the relationship between the center and the provinces does not occur. One possible
option that should be considered is a federalist system. It is unfortunate that the word "federalism" is a
loaded term in Indonesia. It is reminiscent of the offer made to Indonesia by the Dutch in the late 1940s
as a weak substitute for independence. Despite this historical resonance, the idea is once again being
debated in Indonesia. At the moment, most members of the policymaking community are against it. They
argue that an archipelagic country is not conducive to a federalist system; that the nation-building
process must be completed before the conceptualization of the nation is substantively changed; that the threat
of disintegration rises with a weak central government (the result, they believe, of a federalist system); and
that national security will be compromised because the armed forces will not have the flexibility to contain
sea-based infiltration.
SDI 2008 84
WHAM! States/Fism Core

Indonesian Federalism Bad – Indonesian Economy


( ) Federalism in Indonesia undermines growth across the board.
Jose Edgardo Campos, Senior Strategy Advisor for Public Sector Reforms, Department of Budget and
Management, the Philippines. AND, Joel S. Hellman, Political Counsellor at the European Bank for
Reconstruction and Development. 2005. The World Bank Report: East Asia Decentralizes. “Making Local
Government Work.” http://siteresources.worldbank.org/INTEAPDECEN/Resources/dc-full-report.pdf
Not surprisingly, in neither country has decentralization fulfilled the governance goals predicted by the most
optimistic theories. In Indonesia, which is still in the early stages of its reform, the initial impact on
perceptions of governance and selected outcomes has not been positive. There is a widely held view that
decentralization has exacerbated corruption and significantly increased policy uncertainty across
different levels of government. Decentralization has also led to a greater regulatory burden on firms and
questionable financial management practices. These problems have contributed to a general weakening
of the investment climate, which has harmed Indonesia’s growth prospects. In the Philippines, which has
a longer record of decentralization, the picture is more mixed. Overall, perceptions of corruption have
declined, and service delivery standards have improved somewhat. However, the link between these
outcomes and improvements in the accountability of local politicians is weak.

( ) Indonesian federalism creates a fiscal nightmare and capital flight.


George E. Peterson, Senior Fellow at the Urban Institute and former Professor at Harvard University. AND,
Elisa Muzzini, of the World Bank. 2005. The World Bank Report: East Asia Decentralizes. “Making Local
Government Work.” http://siteresources.worldbank.org/INTEAPDECEN/Resources/dc-full-report.pdf
Countries such as the Philippines and Indonesia have opted for political decentralization, with local
authorities formally recognized as autonomous bodies. Inherent in their powers is setting priorities for
local budgets, including capital budgets. Concern has arisen in both countries as to whether this type of
decentralization can sustain capital investment and maintenance. In particular, the transfer of large
numbers of central government employees— subject to wage protection—to local rolls, and the legal
and political difficulties of raising local revenues, subject subnational governments to budget
pressures. In the face of such pressures, local governments are thought more likely to maintain employment
levels rather than adjust their budgets to sustain investment. Within capital programs, spending on
maintenance and repair is believed to be particularly vulnerable. Displacement of local investment has
potentially serious consequences. The World Bank has estimated that, in Indonesia for example, some 60
percent of total development expenditures are now a local responsibility (World Bank and Asian
Development Bank 2003; World Bank 2003b, 2003c).
SDI 2008 85
WHAM! States/Fism Core

Indonesian Federalism Bad – Secessionism


( ) Indonesia federalism sparks separatism and causes state dissolution.
Manila Standard, 7/28/05. “FEDERALISM NO PANACEA.”
As in Japan, a federal union of semi-independent states in Indonesia would have encouraged
separatism, as indeed the weakening of the central government after the fall of Suharto has encouraged
separatist movements in Aceh, Manado and elsewhere. (Largely Catholic East Timor separated from
predominantly Muslim Indonesia during Suharto's watch, with the active encouragement of the western [i.e.
nominally Christian] media.) Federalism is more suitable for countries with large, contiguous land
masses - such as Russia, Canada, the US, Brazil, Australia, India, Mexico and Germany - where centrifugal
forces have less appeal. Yet even among these examples, there are separatist movements in Canada,
Russia and India. Archipelagic countries (Japan, Indonesia, the Philippines) are better off with unitary
states. The recent threat of certain Filipino mayors and governors, to secede from the Republic if President
Arroyo is forcibly removed from power, may be dismissed as harmless political noise, but they may be
aberrations of our personalistic culture, in the absence of a nationalistic one. In which case, federalism will
just lead to the break-up of the Republic on the whim of regional political bosses.

( ) Federalism in Indonesia stokes secessionist tendencies.


Catharin E. Dalpino, fellow in Foreign Policy Studies at the Brookings Institution. September 2001. Brookings
Institution, Policy Brief #89. “Indonesia at the Crossroads.” http://www.brookings.edu/comm/policybriefs/pb89.htm
The greatest challenge to Indonesia's internal stability is the management of the numerous communal
conflicts and secessionist movements in the provinces, which have erupted or become worse in the post-
Suharto era. Each is a unique situation, but all have been exacerbated by a lack of attention by the
Indonesian government in recent years as political elites have struggled among themselves for power in a
changing system. The 1999 law to decentralize government is beginning to take hold and could lay the
groundwork for more equitable and amicable relations between Jakarta and the provinces in the long-term.
But in the short-run, because central government controls have loosened while provincial controls are
not yet established, decentralization may only be pouring fuel on the flames of these conflicts.

( ) Secession in Indonesia sparks secessionism throughout Asia.


Catharin E. Dalpino, fellow in Foreign Policy Studies at the Brookings Institution. September 2001. Brookings
Institution, Policy Brief #89. “Indonesia at the Crossroads.” http://www.brookings.edu/comm/policybriefs/pb89.htm
Once a critical 'domino' in the cold war Asian security arena, Indonesia has new significance in the post-cold
war world as a model for other countries in the process of rapid political and social change. As a Muslim-
majority country, Indonesia's democratic experiment offers lessons for other societies with significant
Muslim populations that are emerging from authoritarian rule. As the most ethnically diverse country in Asia,
Jakarta's ability (or failure) to accommodate communal differences while maintaining national unity
will influence stability in its neighbors with sharp internal divisions. If the fundamentalist province of
Aceh withdraws from Indonesia, it will embolden separatist groups in the Philippine province of
Mindinao and leaders of Malaysia's Islamic Party, which is gaining strength at the local level. Indonesia's
experience in establishing democratic civil-military relations could have some influence on the course of
political development in Burma, where the military is hinting it may restart political dialogue with the
civilian opposition. The junta in Rangoon has publicly drawn parallels between the Indonesian and Burmese
systems.