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Federalism DA
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a. Uniqueness: Trump water policies reinvigorated federalism – the status quo is
goldilocks for states’ rights.
Snell and Wilmer 2020 (JDSupra “Cooperative Federalism and the Clean Water Act: The States
Finally Get their Due,” JDSupra, 2/14/2020, -LH
After decades of uncertainty, ambiguity and litigation, the
Trump Administration has finally delivered in bringing clarity
to the regulatory scheme, offering more than lip service to the principals of cooperative federalism
expressed unambiguously in the Clean Water Act itself, and adhering to the Constitutional limits the Supreme Court has imposed on the reach
of the Clean Water Act: This final rule presents a unifying legal theory for federal jurisdiction over those waters and wetlands that maintain a
sufficient surface water connection to traditional navigable waters or the territorial seas. This
definition strikes a reasonable and
appropriate balance between Federal and State waters and carries out Congress’ overall objective to
restore and maintain the integrity of the nation’s waters in a manner that preserves the traditional
sovereignty of States over their own land and water resources. The final rule also provides clarity and predictability for
Federal agencies, States, Tribes, the regulated community, and the public. This final rule is intended to ensure that the agencies operate within
the scope of the Federal government’s authority over navigable waters under the CWA and the Commerce Clause of the U.S. Constitution.[5]
The Rule’s critics (no doubt soon to be “plaintiffs”) have focused on the exclusion from jurisdiction of non-navigable wetlands and tributaries,
including ephemeral washes as the harbingers of toxic doom and mass extinction. However, there are at least two reasons the Rule is unlikely
to significantly alter the regulatory playing field for these “waters,” much less trigger the dirty water Armageddon prophesied by the more rabid
commentators. First, pollutant discharges to non-navigable tributaries are likely to remain regulated as “indirect” discharges to navigable
waters: The agencies believe that a CWA section 402 permittee currently discharging to a jurisdictional water that becomes non-jurisdictional
under this final rule would likely remain subject to the requirements of the Act. This specific concern was raised in Rapanos, that enforcement
of section 402 could be frustrated by “polluters . . . evad[ing] permitting requirement . . . by discharging their pollutants into noncovered
intermittent watercourses that lie upstream of covered waters.” Id. at 742-43. In the words of Justice Scalia, “That is not so.” Id. New or
continuing discharges, whether illicit or not, could be subject to sections 301 and 402 of the Act if the discharge is conveyed from a point source
to a “water of the United States.” The agencies view ephemeral features, such as arroyos or ditches, as potential conveyances of discharges of
pollutants from point sources subject to NPDES permitting requirements. [6] Second, and perhaps most importantly, states
will exercise
their authority over their lands and waters to address non federal waters as they deem appropriate. Clean
Water Act §101(a) contains perhaps the most quoted provision of the statute, stating the bold “objective of this chapter [] to restore and
maintain the chemical, physical, and biological integrity of the Nation’s waters.” But §101(b) is no less important, despite getting little fanfare:
“It is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of
States to prevent, reduce, and eliminate pollution, to plan the development and use … of land and water
resources, and to consult with the Administrator in the exercise of his authority under this chapter.”
States now have a clear opportunity to tailor their regulatory programs for non-federal waters. Arizona is
one of many states that support the new Rule: “The State supports the narrower definition in the Navigable Waters Protection Rule. The waters
of the state are unique, and ADEQ believes it best for Arizona to address Arizona waters locally in practical and pragmatic ways.”[7] Arizona has
long regulated “waters of the state.” In anticipation of the new Rule, the state has already begun stakeholder meetings to determine any
appropriate regulatory responses to bolster the state’s role in regulating non-federal waters, consistent with the “primary responsibilities and
rights of States to prevent, reduce, and eliminate pollution” envisioned by the Clean Water Act. The Rule’s new clarity on which
waters are subject to federal regulation and which are not, coupled with state implementation of the primary role in protecting non-federal
waters, promises
to result in a more effective and efficient regulatory program for all of the stakeholders
involved. At last.
b. Link: Plan violates federalism – national environmental policies discourage state
action and excludes states from the regulatory process.
ENVIRONMENTAL REGULATION,” Harvard Environmental Law Review, Vol 31, 2007, LH
Just as federal attention to a given environmental concern may increase the demand for state-level action, the
adoption of a given
federal standard may send a signal that discourages the adoption or maintenance of more protective
state regulations. Specifically, the adoption of a given regulatory standard by a federal agency sends a signal that the standard is
worthwhile.118 Among other reasons for this effect is that federal policymakers, particularly federal agencies, are presumed to
have substantial technical expertise. Thus, their actions may convince state policymakers (or their constituents)
that additional safeguards are “unnecessary” or that the benefits of more stringent regulatory
protections are not worth their costs. The magnitude of this effect is likely to correspond with the magnitude of the difference
between the relevant federal and state standards. In this way, federal standards can discourage state policymakers from
adopting and maintaining more stringent measures of their own, even where such measures could be justified. As a practical
matter, the federal “floor” may become a “ceiling” as well. This effect is not merely hypothetical. There are
numerous examples of state legislation designed to prevent state environmental agencies from
adopting regulatory standards that are more stringent than federal rules.119 Between 1987 and 1995,
nearly twenty states adopted at least one statute limiting the ability of state agencies to adopt
regulatory controls more stringent than relevant federal standards.120 Some states focus on a given
environmental concern, while others have general prohibitions against the adoption of any
environmental rules more stringent than applicable federal standards.121 New Mexico and Colorado, for example, have statutes
prohibiting the promulgation of air pollution controls more stringent than those required by federal law.122 Virginia law bars state regulatory
authorities from requiring greater amounts of water treatment than mandated under the federal Clean Water Act (“CWA”).123 Other states
have general prohibitions against agency promulgation of environmental rules more stringent than federal law.124 The existence of statutes
barring state regulatory agencies from adopting more stringent regulations may be evidence of a greater hostility to environmental protection
in some state legislatures than in Washington by the adoption of a federal standard at a given level, particularly insofar as state policy-makers
conclude that their federal counterparts have greater expertise and understanding of relevant environmental concerns. Information is costly,
and the knowledge and expertise necessary to determine a given level of protection may tax the resources of state governments. Therefore,
deferring to federal policy judgments by responding to the signal of a federal standard may enable state policy-makers to economize on
information and policy development costs.125 On the other hand, the
localized nature of much environmental knowledge
and expertise could suggest that signaling may systematically encourage less optimal state-level
regulation to the extent that federal standards fail to take local needs and variation into account.126 Some
state laws may address this concern, however, as they allow state agencies to adopt more protective measures where local conditions
warrant.127 There are several reasons why this signaling effect may be of concern. First, and perhaps most important, the
existence of a
signaling effect that reduces the level of state regulations below what they would otherwise be could reduce the
net benefits provided by federal regulations. When the federal government adopts a federal regulatory standard, this will
increase the level of regulation in states that have lower levels of regulation. At the same time, it will lower the level of regulation in any state
that adopts laws barring the promulgation of regulations more stringent than the federal standard
c. Impact: American federalism is modeled---it solves international civil wars.
Steven G. Calabresi 95. Associate Professor, Northwestern University School of Law. B.A. 1980, J.D.
1983, Yale "A Government of Limited and Enumerated Powers": In Defense of United States v. Lopez
Source: Michigan Law Review, Vol. 94, No. 3 (Dec., 1995), pp. 752-831 Published by: The Michigan Law
Review Association Stable URL:
The bitter harvest of the nationalist revolution was gathered in this century with the slaughter of the First and Second World
Wars and with the fifty-year Cold War that then followed. These events finally made clear to the great-great-grandchildren of the Enlightenment that celebration of the nation state could lead to Nazism and Stalinism, to war and genocide, and
to totalitarianism and the most complete loss of freedom humankind ever experienced. By 1945, the democratic revolution was still in
full flow, but the nationalist revolution was not. World leaders scrambled to replace the still collapsing colonial,
imperial transnational structures with new federal and confederal transnational structures. 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 aston- ishing and rightly is viewed by many - either with alarm or with hope - as
holding out the eventual prospect of a future global fed- eral 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 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 consti- tutions that are significantly more federalist than the ones
they re- placed.25 Many other nations that had been influenced long ago by American federalism have chosen to retain and
formalize their fed- eral structures. Thus, the federalist constitutions of Australia, Can- ada, 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 nationstates, like China, also seem ripe for a federalist, as well as a demo- cratic, 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 hap- pened in Czechoslovakia, Yugoslavia, and the former Soviet
Union. All of this still could be threatened, of course, by a resurgence of nationalism in Russia or elsewhere, but the long-term
antinational- ist trend seems fairly secure. There is no serious intellectual sup- port for nationalism anywhere in the world today, whereas
everywhere people seem interested in exploring new transnational and devolutionary federal forms.28 The
democratic revolution
that was launched in Philadelphia in 1776 has won, and now it seems that democrats everywhere join
Madison in "cherishing the spirit and supporting the character of federalists."29
Trump-era protection bolstered a good balance of federalism – the plan unilaterally
and undemocratically reverses it – turns the aff and guarantees a link.
Keegan 20 8/10/20, Mike Keegan || Contributing author, COMMENTARY: The Liberal Case for EPA's New WOTUS Law, Water Finance &
Management ||
After withstanding numerous preemptive judicial challenges, the
Trump administration’s version of the Waters of the
United States (WOTUS) went into effect on June 22. The Trump rule circumscribed the federal regulatory power over
U.S. waters compared to the 2015 Obama administration’s rule which circumscribed the previous rule after the Supreme Court ruled it was
a federal overreach in 1989. Critics of the Trump rule argue it is not supported by science, relying on EPA’s Science Advisory Board (SAB) that
concluded the Trump rule “decreases protection for our Nation’s waters and does not provide a scientific basis in support of its consistency
with the objective of restoring and maintaining ‘the chemical, physical and biological integrity’ of these waters.” There are two flaws in this
argument. One, “science” as they use the term means the interconnectedness of all waters in the Anthropocene would lead to the logical
conclusion that the
same science did not support the Obama rule either. This is a point the supporters of the Obama rule
must omit to stand-up their strawman argument. Two, the SAB claims the Trump rule “decreases protection” of U.S. waters. However, it
would be more accurate to say it decreases “federal regulation,” not “protection” of the waters. The
two terms are not synonymous. Eliminating federal regulation does not necessarily leave the waters unprotected. State and
local governments retain all powers to protect or regulate the intrastate waters no longer covered by
the federal government. The 1989 Supreme Court’s Rapanos ruling delineated which waters are interstate or intrastate to respect the
principle of federalism enshrined in the Constitution. It would be more honest for the Trump rule critics to argue that we can’t trust
states and localities to protect their waters like we can trust the federal regulators. These paternalistic advocates and their experts
could even be right, but that is neither liberty nor democracy – it is rather the usurpation of liberty. Much of the environmental
law enacted since the late 1960s has been predicated on the theory that the federal bureaucracy cares more about the public and is smarter
than the democratically elected state and local governments. Regulators were delegated enforcement authority over state and local
governments to protect the public from the decisions of their elected local leaders. In essence, they
believe people need to be
protected from themselves and their local democratic processes by the experts. This WOTUS debate has less to do with
science and more to do with control. State and local governments could always take the advice of the EPA, their
SAB, or any scientific academy. Federalism’s sovereignty allows for the competition of ideas from the
many laboratories of innovation. However, there is a more virtuous element of federalism – democracy; it
allows the very people affected by a policy to decide that policy. This is the case in the Trump WOTUS rule; if a water body is wholly within a
state, it
should be those people through their local democratic processes who determine the content of the regulation.
They are the only ones who are affected, pay the cost, and can balance the value of economic advancement
with environmental preservation. It is a fallacy to argue this allows for the choice to pollute because actual contamination of the
environment is covered under other remedies (i.e. tort, nuisance, etc.). The alternative to democratic federalism is to have the
judgment made for people, on their behalf. In addition to being undemocratic, this results in cynicism because it neglects
the necessary community support for regulation and opportunity for political accountability. It is also unsustainable
because the cost and dominion of the controlling experts always grow when they don’t have to pay for their
regulation. Sustainable environmental policy requires that the people affected by the policy take responsibility for
crafting it, knowing they will have to pay for it. The Trump administration did not decide the delineation of intra versus
interstate waters. The Supreme Court and Constitution did and even the dissenters in Rapanos believed some
waters were entirely intrastate. If the Trump rule scales back the delineation more than Congress enacted, it is open to judicial,
legislative and political accountability. Federalism provides the same corrective at the state and local level. Instead of the
experts and regulators being the vanguard of the people by usurping their control, why don’t we give the power to the people? Let the federal
agencies, experts and green-activists take their policies directly to the local community – and let the people decide for themselves. If they can
get the community’s support, all the better – it will be clear who made what decisions and who is accountable. “Think globally and act locally,”
is still true today.
U – Fism Strong Now
Biden is restoring authority over water protection to states now—EPA rule changes
Dino Grandoni, 5-27-21, reporter on the national desk of The Washington Post, focused on covering
the Environmental Protection Agency, climate change and other environmental issues. “Biden
administration wants to give more power back to states to block pipelines”
Plans to build massive ports for shipping coal abroad, seaside terminals for supercooling gas and thousands upon
thousands of miles of pipelines cutting through rivers and streams across the United States will all soon be getting extra
scrutiny as the Biden administration prepares to give states and tribes more authority to block energy projects. The
Environmental Protection Agency announced Thursday it will rewrite a rule finalized last year under President Donald Trump
that upended the way the Clean Water Act had worked for half a century. The Trump administration tried to clear away
regulatory hurdles for fossil fuel development after New York and other left-leaning states halted gas pipelines and other projects they feared may contaminate
rivers, lakes and other waterways within their borders. Now, in
an about-face, the agency is preparing to rework those
regulations, potentially allowing state officials to take a broader array of environmental concerns — including
climate change, an increasing concern among officials in blue states — into account when deciding whether to approve major
construction that could defile bodies of water. “We have serious water challenges to address as a
nation and as EPA Administrator, I will not hesitate to correct decisions that weakened the authority
of states and Tribes to protect their waters,” Michael Regan, President Biden’s EPA chief, said in a statement. While the Biden
administration did not offer specifics on how it will amend the rule, the decision comes as the construction of new oil and gas pipelines has emerged as a major
point of tension in Biden’s infrastructure push. For years, environmentalists have pressed federal and state officials to stop developers from laying additional oil and
gas pipes, arguing that they endanger wetlands with potential spills and threaten to make global temperatures rise even more quickly as the fuel they deliver to
market is burned. Heeding protesters’ calls,
Biden revoked a permit for the controversial Keystone XL pipeline on his
first day in office. At the same time, the president is also trying to square environmentalists’ demands with the desire for more well-paying construction
jobs among labor unions, another important Biden constituency, which are urging the White House not to block other pipelines. But the administration’s
announcement may end up emboldening blue states to block even more energy projects, taking some the heat off the White House. “It’s
going to be a
tricky balance for the administration as they begin to relook at this rule, which certainly is what our organization wants,” said Julia Anastasio,
executive director and general counsel of the Association of Clean Water Administrators, which represents state water administrators in all 50 states. Under the
Clean Water Act, the federal government cannot issue permits for any construction that potentially pollutes waterways without first getting permission from states
and tribes. But the Trump administration limited the amount of time local officials had to review projects and restricted them to only consider impacts on water
quality. Trump officials, along with Republicans in Congress, were particularly irked by a decision in New York to block a pair of gas pipelines, with state officials
arguing last year that the “long-term use of fossil fuels is inconsistent” with combating climate change. And the state of Washington canceled a terminal that would
have shipped Wyoming coal to power plants in Asia, arguing that there would be “irreparable and unavoidable harm” to the Columbia River and the fishing rights of
Native Americans if approved. The EPA’s move was denounced by Sen. John Barrasso of Wyoming, top Republican on the Senate Energy and Natural Resources
Committee, who said miners in his state would suffer if they could not ship their coal to markets abroad. “Once again, the Biden administration is choosing to cave
to the extreme left at the expense of America’s energy workers," he said in a statement. “Washington State and east coast states have hijacked the Clean Water Act
to slow down important American energy projects.” But Oregon Gov. Kate Brown (D), whose administration blocked the building of a pipeline and export terminal
for liquefied natural gas before the Trump rule took effect, praised Biden’s EPA for reconsidering the rule. “The
prior administration’s rule was
not only harmful to the environment, it was corrosive to state, federal and tribal partnerships,” she said. Robin
Rorick of the American Petroleum Institute, a major oil and gas lobbying group, defended the Trump rule for providing “a well-defined timeline and review process
for water quality certifications," adding that it hopes to work with the Biden administration in crafting a new version. Among the projects awaiting state water
certification is the Mountain Valley Pipeline. The proposed conduit, meant to bring gas from the Marcellus and Utica shales through West Virginia and Virginia,
prompted protesters to perch on platforms high in the trees to halt construction. Regulators in both states are still weighing whether to allow the pipeline to cut
through creeks with endangered fish, such as the brightly colored candy darter. North Carolina’s Department of Environmental Quality, which was once run by
Regan, has twice denied a water permit for a part of the pipeline. “They want to cross some of the most sensitive aquatic habitats, not only in Virginia, but really in
the Eastern U.S.” said David Sligh, conservation director of Wild Virginia, a local environmental group. Tracking Biden’s environmental actions Since taking power in
January, the Biden administration has adopted nearly two dozen new environmental protections. Just this week, the EPA nixed a Trump-era rule restricting the
research that regulators can consider when crafting public health measures. The Trump-era limits on states’ authority over pipeline projects may have been on
shaky legal ground to start. More than a dozen states sued over the restrictions. Mark Ryan, a Clean Water Act expert who worked as a lawyer at the agency for 24
years, said the
Trump administration ignored long-standing Supreme Court precedent giving states a wide
berth in exercising their right to limit energy projects. “They pushed this one out clearly trying to help the pipeline industry,” Ryan
said. “As they often did in that administration, they didn’t think things through carefully.”
Biden is restoring power to the states but hurdles remain
Craig Holt Segall, 3-12-21, Assistant Chief Counsel, California Air Resources Board, “Networked
Federalism: Subnational Governments in the Biden Era”
Subnational governments, working with non-governmental advocates, drove climate action during the Trump
administration while rebuffing federal rollbacks. Under the Biden administration, focus may initially shift towards
the federal government, but the subnational network is critical to continued progress on climate change. I use the
term “networked federalism” to describe how a horizontal, interconnected, and polycentric collection of states, local governments, Tribes, and advocates provides
the resilient frame needed to buttress national action. Indeed, this structure mirrors the successful structure of the Paris Agreement[1]—in which international
action depends on subsidiary national contributions. A networked, federalist system of subnational climate action will be critical to continuing success, and should
be nurtured and expanded. In this article, I discuss barriers to federal climate action under the Biden administration, trace the important role of subnationals in the
climate movement, and lay out a policy agenda for strengthening subnational networks over the next four years. I. Barriers
to Federal Action
Under the Biden Administration Despite its climate focus, the Biden administration inherits a depleted civil service,[2] multiple
crises from COVID-19 to economic depression,[3] and a hostile Supreme Court and federal judiciary.[4] In this
context, subnationals on the side of climate action can be force multipliers—advancing policies, making markets, and
occupying legal and civil space even if the federal courts intervene and the legislative process falters. Such
setbacks are likely: congressional direction may be slow in coming due to the undemocratic design of the U.S. Senate,[5] in which Jim Crow relics like the
filibuster aggregate power in a Republican Senate minority that represents forty-one million fewer Americans than the thin Democratic majority.[6] Congress is
unlikely to produce sweeping new legislature—though there will be opportunities for focused action[7]—and the judiciary is unlikely to countenance
comprehensive regulatory efforts in its absence. Though
some regulations will certainly survive, Trump appointments
mean that the judiciary is unfriendly to broad executive action by the Biden administration. Barriers include
attempts to revive “non-delegation” doctrines limiting agency scope absent very specific Congressional direction,[8] attacks on the deference due to agency
technical judgments,[9] and amplification of the ill-defined “major question” doctrine, which asserts that agencies may not solve substantial problems absent
explicit mandates.[10] Though these attempts have largely been supported only by minorities of the Court, they are of increasing currency, and are cropping up in
lower court dissents.[11] The
upshot is that regulatory action may be impeded by judicial doctrines that disfavor
executive action—in theory, in deference to the legislature—even as the legislature struggles to act.[12] Even if these
barriers can be overcome, the midterm elections loom, and the historical odds favor gains for the Republican party.[13] In short,
federal action, after a heartening start,[14] risks almost immediate reversals in court, or simply sputtering out legislatively if Congress cannot act commensurate
with the challenge. In this context, the subnational network formed over the last four years is tactically critical. The new President can rely not just on the federal
government, but on the entire network. II. The Subnational Infrastructure: More Than A Counterweight The
Trump administration’s least
likely legacy is genuinely robust and pervasive subnational climate action. Faced with wholesale federal
hostility, subnationals banded together to challenge nearly every Trump-era climate and clean air action,[15]
and racked up an impressive win record,[16] including vacatur of Trump’s marquee power sector rollbacks.[17] As the litigation stalled the
remaining rollbacks,[18] states also increased policy collaborations. The result was a major acceleration in state-level climate
policy: multiple states prepped to follow California’s more rigorous vehicle emissions standards as soon as federal impediments were removed, accelerating
decarbonization of the vehicle fleet;[19] states in the Northeast created a massive new transportation decarbonization initiative;[20] many states adopted statutes
cutting high-global warming potential gases like hydrofluorocarbons;[21] and low carbon fuel standards began to spread.[22] Subnational regulators also began to
close down obsolete fossil fuel infrastructure, with record numbers of coal-fired power plants retiring,[23] to be replaced with renewable energy and storage
facilities.[24] States accelerated markets for clean technology,[25] implemented major environmental justice efforts in, for instance, California[26], North
Carolina,[27] and New Jersey[28], and pivoted towards a just transition.[29] Additionally, a bipartisan coalition of governors formed the United States Climate
Alliance, which included states representing 55 percent of the population.[30] The United States Climate Alliance documented and shared climate efforts among the
states, and provided a critical collaborative venue.[31] Beyond the value of policy progress in its own right, this
decentralization of policy
ultimately makes climate action more durable and effective on multiple axes: States were the first and primary
environmental regulators and the law continues to carve out ample space for state action.[32] Federal authority cedes to subnationals in critical areas, including
land use,[33] the intrastate power sector,[34] building codes, and emissions from existing stationary[35] and mobile sources.[36] The federal Clean Air Act is typical
in specifying that federal regulations are floors above which subnational governments are free to act.[37] Thus, most emissions are firmly under subnational
jurisdiction. State
and local legal authorities are particularly resistant to judicial reversals. Few statutes preempt
subnational authorities, and the Supreme Court has long emphasized the importance of state sovereignty in our federal system.[38] Moreover, states receive
“special solicitude” regarding their ability to be in court in lawsuits against the federal government.[39] States also have the resources and ability to file such suits—
and indeed greatly accelerated their efforts to do so during the Trump administration.[40] In
addition to offensive litigation, States have
succeeded in defending many programs from challenges asserting a range of federal preemption and
federal constitutional claims. For example, California and Oregon successfully preserved their Low Carbon Fuel Standards.[41] Although the Trump
administration attempted to limit state authority by, for instance, attacking California’s long-standing vehicle regulatory program,[42] these attacks were on shaky
legal ground,[43] and may prove to be evanescent under the new administration. Indeed, even while its vehicle regulatory program was under attack, California was
still able to conclude successful agreements under which leading automakers contractually bound themselves to vehicle decarbonization despite federal
rollbacks.[44] Subnational advantages extend more deeply into the structure of our politics as subnational action offers a more varied and robust set of frameworks
to sustain action, even in the face of federal reversals. Programs rooted in a single totalizing vision tend to be unstable.[45] There are simply too many distinct policy
and political interests to make national consensus easy to attain.[46] Even after national consensus is attained, national programs can be subject to swift reversals in
the courts—as the Supreme Court stay of the Obama-era Clean Power Plan underlined.[47] More fundamentally, as Harvard political scientist Theda Skocpol has
observed,[48] any one climate policy is subject to retrenchment in the absence of sustained political organizing across multiple levels. The subnational network
offers this sort of thick and resistant legal/political infrastructure. Subnational policies are not immune to reversal—as Professor Leah Stokes has demonstrated,
state-level retrenchment has occurred as incumbent fossil interests resist zero-carbon challengers[49]—but they still have real advantages. Initially, there are simply
more actors, meaning that progress can be sustained even if retrenchment occurs in some jurisdictions. But states are also often better able to secure lasting policy
settlements: it is less expensive to organize in state politics, meaning that lasting political coalitions are somewhat easier to sustain, and may reach more deeply into
the community.[50] The comparative flexibility and speed of state legislation and regulatory processes in some jurisdictions may make it easier to put programs in
place and adapt them in the face of attack.[51] And the nimbleness of state and local governments often makes it easier to pair technological policies with social
ones—for instance, combining decarbonization rules for an industrial sector with support for transitioning workers.[52] The structure of climate progress ultimately
is as multi-leveled and complex as the origins of the climate crisis itself. Elinor Ostrom, Nobel Laureate in Economics, described climate change as a “polycentric”
problem, in that the decisions that created the crisis emerge at every level of government and society.[53] Solutions to that crisis will be more robust if they mirror
this essentially fractal structure. This was ultimately the insight that motivated the Paris Agreement, with its focus on nationally-determined actions within a larger
organizing frame, rather than one central climate regime.[54] The same insight should motivate the design of government programs in the United States, with
climate action deepening at every level. III. An Agenda for the Next Four Years Federal
action should focus on meaningfully
strengthening and engaging with the subnational climate network. Doing so now, while the new
administration is at the height of its influence, will help ensure that the network persists, and provide assurance
of continued action even if the midterm elections go poorly or federal courts slow executive action. The agenda I lay out here is just a sketch of the many
opportunities available: A. Cease Undue Interference with Subnationals Any serious effort to strengthen subnational action needs to begin with ceasing attacks. This
will require at least withdrawing the Trump administration’s preemptive limits on state vehicle regulatory authority,[55] its challenge to the California/Quebec Capand-Trade Program,[56] and unwanted federal fossil fuel projects inconsistent with local priorities.[57] The Biden administration has begun to set all of these failings
right through early executive orders directing agency reviews of such actions,[58] though the effect of these directives will come later as final administrative action
is taken. B. Direct Affirmative Cooperation with States, Communities, and Tribes The Biden administration can direct all federal agencies to affirmatively collaborate
with subnational governments to advance climate action by revisiting executive orders—generally of Clinton-era vintage and long out of date—concerning
consultation with states,[59] Tribes,[60] and environmental justice communities.[61] It has made a start of this in its early Executive Orders,[62] but much remains
to be done. Each of these Clinton-era orders, in their current forms, largely direct consultation, rather than positive efforts to enhance subnational authorities.[63]
The result has been federal actions that harm subnational governments (such as the attack on the California vehicle program), undertaken with no ability for
subnationals to resist outside of court. In the tribal[64] and environmental justice[65] contexts, the picture is similar, with major problems being proposed or forced
through without affirmative community consent (as, for instance, in the case of the Dakota Access Pipeline on the Standing Rock Sioux Nation). The
Executive Orders and other early actions do address these issues, but in a limited fashion, focused
initially on process rather than substantive expansion of authorities—and they do so only for environmental justice
communities and Tribal Nations. For instance, the climate Executive Orders direct some degree of reconsideration as to
environmental justice communities, providing for new metrics to be developed and used, albeit without formally revising the prior
order or providing communities an affirmative right of refusal.[66] This means that the Order does not create new rights, just improved analysis. Similarly, a
Presidential Memorandum on Tribal Consultation[67] does not ultimately enhance Tribal authorities, instead focusing on improved consultation plans. It would be
better to collaboratively and more thoroughly revise these orders, with the communities they are intended to serve, to (a) direct federal agencies to actively
collaborate with subnational entities to further climate and public health goals, and (b) to require very strong justifications for actions contrary to the
recommendations of the entities consulted, if not an actual right of refusal. Further, the absence of any clear order on federalism and state and local governments
itself is worrying—though states are mentioned at a high level in the early action orders, there is no order focused on federalism, nor any firm directive to act to
rapidly advance state climate action in partnership. This is a missed opportunity, and one that should be corrected—swiftly. This is no time to allow the network for
action to degrade. Such orders, and further strengthening actions, would lastingly empower the network of polycentric climate actors who have driven much of the
progress to date. C. Embed Climate and Public Health Metrics in Federal Grant Programs and Guidelines The
powers and information resources, can
federal government, though its spending
help steer subnational action, raise the federal floor, and encourage laggard
jurisdictions to act. For instance, in the Trump years, the Department of Transportation withdrew greenhouse gas metrics for federal transportation
spending. [68] The rule could readily be reinstated—helping redirect spending to lower vehicle emissions and favor transit. Similar opportunities exist throughout
government to provide clear information on climate and public health impacts, to condition grants on appropriate action, and to target funds to subnationals
making progress. One particularly useful strategy may be to fund communities themselves to further advocate for climate and public health progress. For instance,
California has been providing such grants to disadvantaged communities working to improve their own air quality, offering community groups resources to develop
data and arguments to further inform and influence regulatory decisions involving them.[69] Similar models would help build the interconnected networks of
advocates and regulators needed to make climate action sticky. D. Affirmatively Support Subnationals in the Paris Agreement Context Although the Paris Agreement
does not bind subnationals, subnational action has produced significant emission reductions that will aid the United States in meeting its overall goals—a pattern
that has repeated worldwide.[70] There is every reason to recognize this progress in the Nationally Determined Contribution that the United States must present in
Glasgow this year—for instance, by identifying state progress, past and continuing, as part of the Contribution—and commit to further supporting subnational
action in the context of the U.S.’s international obligations, a commitment which could take the form of an executive order or memorandum directing the federal
government to forward this action, of the form I have described above. Creating a State Department Office dedicated to supporting subnational climate action,
within transnational networks,[71] perhaps along with positions with the Domestic Policy Council to do the same inside the country, would also deepen this
commitment and help operationalize it within the federal structure. This
sort of formal commitment would confirm there is no
legal or policy question as to whether subnationals should act, and further mobilize national support for
networked federalism across national borders.[72] Supporting subnationals in the Paris Agreement context will help further connect
subnationals globally, providing a solid platform for collaboration and increased climate ambition. * * * These actions—and doubtless many
others—would help support the thickly interconnected, polycentric, and resilient networks needed to accelerate
climate action, make it resilient, and (by bringing in many actors and voices) amplify solutions that equitably serve many.
The climate problem is too big for any one government to take it on—including the federal government. The Biden administration, as it confronts this challenge,
should embrace the irony that the Trump administration has left it a gift: an engaged, effective, and growing network of subnational actors. The Biden
administration should nurture that network, setting us on a course for sustained progress with little time to lose.
AT: Covid
Trump’s lack of action on Covid allowed states to step forward and strengthened
Gustafson 1/9 (Andrea Gustafson, junior at Boston University, majoring in political science and
international relations, “Covid-19 Could Strengthen Federalism in the United States”,, )- MW
State governors have had to step up and act independently to address the current pandemic, taking
measures, such as executive orders, to protect their constituents. Could this incipient revitalization of federalism be key
to preventing democratic backsliding in the United States? I argue that the Covid-19 responses by various state
governments strengthen US federalism, which will in turn create new opportunities to bolster US
democracy. Federalism allows for a local government to tackle issues that may not be suitable for the
federal government. The increased action occurring in state governments will allow states to exercise the
ability to check federal government policies. Meanwhile, local governments and politicians oversee a jurisdiction that is closer
to their constituents, giving citizens easier access to political participation than the federal government. If the strengthening of federalism
results in increased participation due to this greater opportunity for access, then it may bolster US democracy. President Trump’s response to
Covid-19 has been inconsistent. Trump has blamed public health officials’ recommendations for attempting to hurt the economy and his
reelection campaign. Alex Burns states, “when you have a national scale crisis, typically
it is the president who people hear
from every day about the threat that is coming into their homes and their neighborhoods and what their
government is going to be doing to help protect them. That’s not happening here from the White
House.” This is why the governors stepped in. By April 3, 16 state governors had declared some form of
lockdown without instruction from the White House. Americans are looking less at the President for
guidance than their governors, changing the balance of federal and state power. In July, 7 out of 10
Americans claimed they trusted their governors more than President Trump, including over half of
Republicans. The lack of guidance from the White House in the early months of Covid-19 in the United States forced state governments to
create stay-at-home mandates, social distancing guidelines, unemployment relief, and mask regulations themselves. These state mandates
influence the everyday life of constituents, who are no longer going to work, out to eat, and are even isolated from family and friends. Seeing
the power of the state regulating everyday life is reinvigorating the powers vested in state governments,
therefore reinforcing the US power sharing structure that is federalism. These new state-level Covid-19
mandates are a larger exercise of state power than seen in decades before, at times directly
contradicting the sentiments of the president. The decisions of state governments are becoming increasingly relevant, as is
their ability to wield power, allowing for greater checks and resistance to the federal government instead of a more nationalized system seen
before Covid-19. Though prevalent in the late twentieth century, state-level politics and politicians have been on the backburner in recent
years. Every president elected between 1976 and 2004 has been a former governor with the exception of George H. W. Bush. Many
controversial issues facing the country at that time were predominantly dealt with at the state level (such as budgets, education, and abortion
rights), allowing candidates to campaign their state-level accomplishments. Around 2008 the US political climate changed, as major federal
issues, such as the Iraq War and financial crises, took precedence over others, dominating the media and shifting focus from state to federal
Federalism is strong- it survived Trump and Covid
Tribe ‘20
Laurence H Tribe, American legal scholar who is a University Professor Emeritus at Harvard University.
He previously served as the Carl M. Loeb University Professor at Harvard Law School. Tribe is a
constitutional law scholar and co-founder of the American Constitution Society Don’t let
coronavirus failures shake your faith in federalism 5/29/20
In times as dark as these, it can be tempting to wonder whether the American experiment has failed. New York digs mass graves as though out
of Boccaccio’s most ashen imaginings; the president of the United States just recommended we all inject cleaning solvent. More than a crisis of
the times, this episode feels like a calamitous failure of government. How is it that our national stockpiles were left to languish, our Centers for
Disease Control and Prevention was slashed and left to ossify, and our experts’ wise counsel ignored, our alarm bells silenced? For some, this is
symptomatic of a federal system already broken — “outdated,” as Richard Krietner recently opined, an 18th-century dream more papier-mâché
than proper governance. As Kreitner bewails, “Neither the paralyzed, sclerotic central government” nor our “arbitrarily determined States”
have been able to tackle the crisis laid at our feet. He recommends a radical overhaul of the system — disintegration into loosely cooperative
regional networks à la the failed Articles of Confederation — and, in effect, its abandonment altogether. Such radical solutions might be mere
doomsayings, but their premise simply isn’t true. To misconstrue this moment as the death knell of federalism dangerously misunderstands
how the
pandemic has showcased federalism’s versatility, resilience, and strength. As these endless
months have stretched on, American federalism has flexed its institutional muscles not in a hapless
rendering of Trump’s ego projects, but squarely in the common defense. Get Today in Opinion in your inbox Globe
Opinion's must-reads, delivered to you every Sunday-Friday. Enter Email [email protected] Sign Up Sclerotic central government? Sclerotic
indeed. The failures of the current administration are numerous and plain: As death tolls rose, our self-proclaimed “king of ventilators” smarted
against expert advice and peddled the trite, insincere denial of a Neville Chamberlain or a frightened caudillo. Trump’s charge in this crisis — for
which he has since claimed “no responsibility” — is to coordinate an informed national plan, gather manpower and funds, make full use of the
Defense Production Act, and negotiate meaningfully for supplies on the international market. Unsurprisingly, he has only dithered and
deflected. However, as evidenced by flattening death curves in states like California, Washington, and Ohio,
federalism saves states
sufficient authority to accrue some of these things on their own. This includes plenary power over their resources
— emergency reserves, strategic stockpiles, and taxing powers — and freedom to negotiate with the
private sector. Governor Gavin Newsom of California has made impressive use of his executive authority
to enter into strategic partnerships with private sector entities from hotels and hospitals to Silicon Valley
and the AARP. Governor Jay Inslee of Washington was the first in the nation to declare a state of emergency, granting him access to
important special prerogatives and sources of funding within his state’s constitutional scheme — including various emergency planning
reserves and operations facilities, emergency powers necessary to implement social distancing, and emergency funds for field hospitals and
quarantine centers. Most importantly, while he might be at liberty to bluster and bully, our Constitution does not grant Trump the authority to
forcibly lift the shutdown measures governors have imposed. The
regional sovereignty of state administrations, agencies,
and civil service provides a space to accrue localized institutional experience. After battling through some of the
country’s most devastating episodes of H1N1 and SARS, Ohio worked to develop efficient and detailed infectious
disease response plans. As a result, Governor Mike DeWine was able to quickly mobilize response forces and gather pre-planned arms
of the state to quickly pool resources and negotiate collectively on the domestic market. State governors also retain the
unilateral authority, cabined only by their state constitutions and the 14th Amendment, to implement
social distancing and stay-at-home measures by executive order without federal mandates or Congress’s
approval — significant in a crisis like ours, where meaningful federal guidelines have been conspicuously
absent. Most importantly, while he might be at liberty to bluster and bully, our Constitution does not grant Trump the authority to forcibly
lift the shutdown measures governors have imposed. Moreover, returning to the misgivings of some regarding the multi-state alliances, these
cooperative efforts similarly hinge on states’ plenary power to direct their own reopenings and are made possible by states’ authority in our
federal structure to collaborate and connect — short only of a binding interstate compact requiring congressional authorization. The prescience
of these alliances isn’t found in any common ideological leaning, as Kreitner suggests, but in an interdependence driven by pragmatic necessity
and resulting from the dearth of a cogent national strategy. Thus it is hard to see just what Kreitner’s theoretical regional alliances might solve
— or how an even more disjointed federalism could correct problems themselves created by a lack of central leadership. The great challenges
of our time are global, not regional — climate change, mass migration, interconnected economies, and nightmarish refugee crises — hardly
fenced out by the grace of a border and arriving squarely on our doorstep, demanding central cohesion and broad, cooperative efforts. The
reason our most pressing issues have seen little progress is not our failure to fracture the United States into smaller subliminal Americas. It is
our unwillingness to legally and institutionally improve our system. The pandemic hasn’t seen problems of government spring up anew; they’ve
only caught up with us. The country needed meaningful congressional responses to Trump’s failure to provide states with emergency monies,
manpower, and resources. The opposite outcome was all but a foregone conclusion, not only because of the outsized influence of corporate
power in politics but because of the failure of previous Congresses to legislatively constrain that influence. Even our right-leaning Supreme
Court left them ample opportunity after the Citizens United ruling a whole decade ago to exercise their authority under the Commerce Clause
either to extend disclosure and disclaimer requirements or to strengthen shareholder protections with respect to corporate spending.
RELATED: Laurence H. Tribe and Scott Greytak: Get foreign political money out of US elections The true obstacles to policy solutions are not
those leaping out of far-flung disunification theories but the boring ones, hashed and rehashed and beaten to death: ▪ Still-unresolved
questions of unrestrained misinformation across unregulated platforms, threatening a manipulation of the electorate by not only foreign
interference but also by wealthy domestic interests. ▪ Looming threats of voter suppression and election manipulation after the gutting of the
Voting Rights Act by Shelby County, made all the more real by recent events in Wisconsin that saw thousands forced to risk their lives at the
polls. ▪ The conspicuously absent legislative response to the defanged Federal Election Commission left by Citizens United and SpeechNow.Org,
which all but sanctified the role of dark money in our politics by allowing unlimited expenditures in support or opposition to explicitly identified
candidates and leaving federal elections vulnerable to ongoing capture. ▪ And the freedom felt by those at the highest levels of government,
after the Trump impeachment and before the November election, to engage in corruption, knowing oversight is scant where party allegiances
nullify congressional checks and threadbare agencies lack the resources necessary to intervene. As George Packer elegantly argued in his recent
essay for The Atlantic, these unsolved problems have allowed glaring fault lines to emerge across the body politic, only exacerbated in a time of
mass unrest: Among them, the gross trifecta of corruption, nepotism, and plutocracy; the practiced, iniquitous sacrifice of our nation’s most
vulnerable, not just in moments of crisis but in the social and fiduciary policies that bookend them; and in stark inequalities of wealth, health,
and safety that trace along racial and economic lines and transcend partisan divisions. If we want to move forward on the issues that count, we
must break down systemic barriers — not squabble over unattainable fantasies of dramatically new systemic designs. We must mend our
beaten body politic as it emerges from the induced coma that prevented collapse in COVID-19; we must immediately attend to the institutional
flaws that landed it there; and finally, we must admit defeat in the quest to endlessly palliate the devastation caused by a pig-ignorant
president and a complicit and unrepresentative Senate. Neither Trump, nor COVID-19, nor the unhappy marriage of the two broke our federal
structure — qui
Fism on the brink now – polarization means decisions now will ripple.
Kettl 20 (Donald F. Kettl, Ph.D. and master's degrees in political science from Yale University, “The Big
Federalism Challenges Facing a Biden Administration”,, 5/07/2021,
Unifying the country: Biden's speech after winning the election called this "a time to heal," and he
clearly sees his most important job as bringing a divided country together. Many of these divisions,
however, depend far more than we often acknowledge on the decisions of state and local governments.
One of this year's most horrific events, the killing of George Floyd, occurred at the hands of Minneapolis
police officers, but it also reflected the broader problem of policing in many communities across the
country. And Trump's campaign promise to keep the suburbs safe was a dog whistle about the spread of
Section 8 subsidized housing beyond the cities. No matter how soaring Biden's rhetoric, his success in
healing America will depend ultimately on building partnerships with state and local governments. The
forces of national polarization grow from local divisions, in fierce debates raging from policing to
housing to homelessness to mask-wearing and, especially, to race. It's hard to imagine an election
where the federalism issues were more hidden below the surface but more clear in their underlying
importance. Biden's administration might have an explicit federalism strategy, or it might pick these
issues off one at a time. One way or another, we're surely heading for a massive rethinking of federalstate-local relations in the months to come.
L – Generic Unilateral Fed Action
Cooperative federalism over water is the status quo—unilateral federal action shreds
that cooperation
Craig Holt Segall, 3-12-21, Assistant Chief Counsel, California Air Resources Board, “Networked
Federalism: Subnational Governments in the Biden Era”
As a result of the federal division of powers over water, the potential for “any unilateral legislative
action” by the federal government is “necessarily . . . partial.”136 Therefore, “[o]ver the years, a high degree of
cooperation has evolved between various agencies of the federal government and the states in the formulation and
administration of water plans.”137 This is a fundamental, indeed, necessary adjunct of federalism, which is
“consistent with any degree of common or cooperative or parallel action between the unit governments,
provided it is in a substantial degree voluntary.”138 Cooperation is not limited to water resources; instead, it happens, and happens frequently
in many spheres of intergovernmental activity in the American and Australian federal systems. In Australia, for instance,
“the increase in such [cooperative] activities . . . since 1928 has been as marked as the increase in direct Commonwealth power.”139 A “Byzantine complexity”140
characterizes the nature of the cooperative, flexible, or marble cake federalism with respect to water law in California and South Australia—and, indeed, in the
water law of the whole of Australia and the southwestern United States. It is not our objective here to assess the whole of this law.141 Rather, we want, first, to
provide an overview of a representative example of the nature of cooperative federalism drawn from each jurisdiction concerning their major water supply rivers—
the Colorado and the Murray Rivers (watercourses not contained entirely within the relevant state’s boundaries). As we will see in the next two sections, a
unique body of law in each jurisdiction seeks to achieve cooperative federalism for the provision of water
supply. Having presented these representative examples, Part III provides an example of the sort of dispute to which this cooperative federalism can give rise—
in the case of California, over the U.S.-California Central Valley Agreement, and in South Australia, over the National Water Initiative 2004 and the Water Act 2007
Federal government encroachments on states’ roles hurts federalism and
disempowers states
Marcus Hawkins, 1-16-2020 (B.A., Political Science, Florida Atlantic University. Hawkins is a journalist
focuses politics and issues) "The Case for Federalism and Some Examples," ThoughtCo (premier
reference site focusing on expert-created education content. We are one of the top-10 information sites
in the world)
There is little question that the current role of the federal
government far exceeds anything ever imagined by the Founders. It has
clearly taken over many roles originally designated to individual states. Through the U.S. Constitution, the Founding
Fathers sought to limit the possibility of a strong centralized government and, in fact, they gave the federal government a very limited list of
responsibilities. They felt the federal government should handle issues that it would be difficult or unreasonable for states to deal with, such as
maintenance of the military and defense operations, negotiating treaties with foreign countries, creating currency, and regulating commerce
with foreign countries. Ideally, individual states would then handle most matters that they reasonably could. The Founders even went further in
the Constitution’s Bill of Rights, specifically in the 10th Amendment, to prevent the federal government from grabbing too much power.
Benefits of Stronger State Governments One
of the clear benefits of a weaker federal government and stronger
state governments is that the needs of each state are more easily managed. Alaska, Iowa, Rhode Island, and Florida,
for example, are all very different states with very different needs, populations, and values. A law that may make sense in New York might
make little sense in Alabama. For example, some states have determined that it's necessary to prohibit the use of fireworks due to an
environment that is highly susceptible to wildfires. Some allow them only around July 4th, and others allow those that don't fly in the air. Other
states allow fireworks. It would not be valuable for the federal government to make one standardized law for all states prohibiting fireworks
when only a handful of states want such a law in place. State
control also empowers states to make tough decisions for
their own well-being rather than hope that the federal government will see the states’ problem as a
priority. A strong state government empowers citizens in two ways. First, state governments are far
more responsive to the needs of the residents of their state. If important issues are not addressed, voters can hold
elections and vote for candidates they feel are better suited to handle the problems. If an issue is important to only one state and the federal
government has authority over that issue, then local voters have little influence to get the change they seek; they're just a small part of a larger
electorate. Second,
empowered state governments also allow individuals to choose to live in a state that
best fits their personal values. Families and individuals can choose to live in states that have no or low income taxes or states with
higher ones. They can opt for states with weak or strong gun laws. Some people may prefer to live in a state that offers a wide range of
government programs and services while others may not. Just as the free market allows individuals to pick and choose products or services
they like, so can they choose a state that best fits their lifestyle. Over-reaching
federal government limits this ability.
Federal legislators should pay attention to negative impact policies can have on
William A. Galston and Korin Davis
2014. Center for Effective Public Management at Brookings. (Galston holds the Ezra Zilkha Chair in the
Brookings Institution’s Governance Studies Program, where he serves as a senior fellow. Davis is a
Project Manager in the Governance Studies program at the Brookings
The Hippocratic Oath binds doctors to do no harm. This is a sensible maxim for public policy as well. Federal
legislators and
regulators should pay attention to the impact of their decisions on other levels of the federal system.
Although we take no position in this policy brief on contested issues such as the taxation of internet sales, we urge national
policymakers to think twice before depriving the states of the ability to broaden the base of their
revenue systems. And although it is legitimate for the federal government to condition its grants on state policies and reporting
requirements, there is a point at which such conditions become unreasonably demanding—indeed, onerous.
Policymakers should do their best to stay on the right side of that line, which cannot happen without a regular and
robust dialogue between state and federal officials. When all is said and done, that dialogue is at the heart of a healthy system of
Federal government oversteps and limits state political power
Scott Gaylor, 7-17-2013, (associate professor of law at Elon University School of Law). "States Need
More Control Over the Federal Government," No Publication,
As the old saying goes, all politics are local. State and federal governments affect our daily lives in
numerous ways. Yet, in our federal system, there is supposed to be a balance between federal and state
power. As James Madison envisioned it in Federalist No. 51, “the power surrendered by the people” would be “divided between two distinct
governments,” creating a balance of power that would enable the “different governments [to] control each other.” Under the United States
Constitution, the federal
government has broad authority in specific enumerated areas, but its power is not unlimited. State
government plays a critical role in all those areas that are not left exclusively to the federal government.
As a result, state politics are extraordinarily important because states are charged with protecting the
welfare, safety and health of their citizens (which is one reason why roughly 95 percent of criminal court
cases are handled in state courts). At least since the New Deal, however, the balance of power has shifted decisively in favor of
federal politics. The expansion of administrative agencies and other federal programs have encroached on state sovereignty, often with little or
no resistance from the states themselves. But the winds of change are blowing in states across the country. Governors and state attorneys
general have begun to challenge what they view as the federal government’s overstepping its constitutionally prescribed role. In
more than 20 states filed suit against the federal government claiming that the Patient Protection and Affordable Care
Act exceeded Congress’s power. In addition, state attorneys general have successfully challenged various actions by the Environmental
Protection Agency and other federal agencies, using state politics to protect the vertical separation of powers.
Moreover, recent Supreme Court decisions provide a glimmer of hope to those championing state sovereignty. In National Federation of
Independent Business (N.F.I.B.) v. Sebelius, a majority of the court determined that the individual mandate under the health care act exceeded
Congress’s commerce clause power. In Shelby County v. Holder, the court held that Congress unconstitutionally infringed on state sovereignty
by using an outdated formula under the Voting Rights Act to decide which states had to get federal approval before changing their voting laws.
In United States v. Windsor, the court emphasized that the Defense of Marriage Act was unconstitutional in part because the regulation of
domestic relations has always been left to the exclusive province of the states. Yet
even in these cases, federal supremacy
lurks in the background, ready to limit the reach of state political power. According to the court, Congress had
ample taxing power to enact the individual mandate; Congress can propose a new formula under Section Four of the Voting Rights Act; and
state control over domestic relations remains subject to the federal Constitution.
Federal government shouldn’t encroach on state power - empirics
Tyler Broker, 1-28-20, "The Legal Encroachments By The Federal Government Upon State Domain We
Should All Care About," Above the Law,
A state’s police powers represent a fundamental right of state power granted by the Constitution.
Traditionally, attempts at federal encroachment to circumvent state police powers has been
condemned by legal conservatives. It was the celebrated conservative Supreme Court Justice Antonin
Scalia who in Printz v. United States declared the federal government could not require “local police to
assist in the enforcement of federal gun control law.” The political “catch,” so to speak, regarding that
legal decision is that the same concept can be applied to federal immigration law, and that is how you
get sanctuary cities. It is also where you can probably begin to understand how the same state police
power can produce both liberal and conservative champions. Despite past instances of grand defense by
both “sides,” however, threats to state police power remain. For example, the federal policy known as
“adoption” is a program where federal agencies are allowed to “circumvent state restrictions on asset
seizures” by collaborating with state police and prosecutors. The adoption program was abandoned
during the last presidency out of a claimed respect for federalism but was reinstituted by the current
administration’s Department of Justice. With the observable electoral state push in recent years to
reform civil asset forfeiture — to require a conviction before seizure for example, something federal law
does not require — the reinstitution of the federal adoption program represents a gross intrusion upon
state police power. The residents of those states should expect their nonelected state officers to uphold
their laws. When the federal government provides gross incentivization for state officers to circumvent
the law, faithfulness to state law, and thus respect to state power, is severely undermined.
L – Water Regulation
Trump’s set of WOTUS rules was the perfect balance of federalism- tampering with it
knocks the balance out of whack
Neumann 20
Rachel Neumann, Associate Attorney at Holman Robertson P.C. 3/10/21, IS THE TRUMP
The government’s proposed new WOTUS Rule places federalism concerns front and center.[173] Moreover,
Justice Gorsuch’s willingness to part with other conservative members of the Court in support of tribal
sovereignty[174]—often at the expense of federal government interests—shows an abiding concern for
historical use of the land and tribal reliance interests. Accordingly, Justice Gorsuch’s approach to environmental issues may
focus not only on the text of the relevant statutory provision (whether contained in the CWA or another statute) but also on the original
expectations of the parties,[175] with a distinct anti-government bias. Parties disputing Corps’ jurisdiction, even under a new WOTUS rule, are
likely to find a friendly audience on the Court. Conclusion While federal jurisdiction under the CWA remains significant under the new proposal,
the administration is taking a free-market approach that decentralizes decision-making, emphasizes
the power of incentives for private property owners, and allows the states and tribes to fill in gaps. The
Trump administration would undoubtedly agree with petitioners in County of Maui who recently
argued, “Congress did not prescribe, in the CWA, a single regulatory scheme for all pollution that
reaches water.”[176] And while the proposed rule was “informed by science” to determine which water bodies should be jurisdictional
under the Clean Water Act, it recognizes that, at bottom, science is inadequate to the task of “draw[ing] the line between federal and state
waters, as those are legal distinctions.”[177] Whether recent developments on the Court or the policies of the executive branch will have a
greater impact on Clean Water Act enforcement will be an area to watch in the coming months. Observers may next turn their attention to
whether state and tribal governments are well-positioned to address pollution of areas that are non-jurisdictional under the Act, such as those
that are hydrologically related but lack a surface connection to jurisdictional waters. President
Trump was at least partially
elected on his promise to “repeal and replace” Obamacare, and he famously was unable to deliver due to political
intransigence with the Congress. But the Obama-era legislation that he may succeed in making wholesale changes
to instead is one that seems to have gone beneath the radar of the public consciousness. As with all
environmental issues, the hope of all involved—property owners and other regulated parties, federal regulators, state and tribal governments,
and environmental activists—is to have clean water at the lowest possible societal cost.
Plan encroaches on federalism—constitution reserves WOTUS rule as states right.
Schillaci ’18 (William C. Schillaci, William C. Schillaci is a writer with EHS Daily Advisor, “Federalism and
Water Rules: The States Weigh In,” June 7, 2018,
First, the administration and the two agencies charged with the rulemaking—the EPA
and the U.S. Army Corps of Engineers
(Corps)—assert that the WOTUS rule provided a definition that included types of waters that Congress did
not intend to fall under federal jurisdiction (that is, those that are not “relatively permanent, standing or continuously flowing
bodies of water”). Second, the EPA/Corps assert that the 2015 rule deviates from federalism, the principle
whereby the federal government and the states share governance. Federalism is inherent throughout
the Constitution (although the word does not actually appear in the Constitution); for example, the 10th Amendment says
that powers not specifically designated to the federal government and not prohibited to the states can
be lawfully assumed by the states. The CWA makes this shared responsibility more explicit, stating in its second paragraph: “It is
the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate
pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult
with the [EPA] Administrator in the exercise of his authority under this chapter.” If the first part of that sentence is
a clear and strong
recognition of states’ rights regarding control of their water resources, the second part also affords some level of
involvement and rights to the federal government over what the states may do regarding those resources. Unfortunately, the remainder of the
CWA and at least three U.S. Supreme Court decisions do not fully clarify where federal CWA authority ends and state authority begins (or vice
versa). The 2015 WOTUS rule attempted to resolve the uncertainty by pushing the needle to the federal side. It would seem from statements
by EPA Administrator Scott Pruitt that the current administration is inclined to pushing the needle to the side of the states. The two-part
rulemaking also responds to an Executive Order (EO) from President Donald Trump, which directs that the EPA/Corps review the 2015 rule in
light of the “national interest to ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting
economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the
Constitution.” In addition, the EO tells the agencies to “consider interpreting the term ‘navigable waters’ in a manner consistent with the
opinion of Justice Antonin Scalia in Rapanos v. United States (U.S. Supreme Court 2006).
Fed water governance undermines federalism—decimates current precedence set by
Malloy ’12 [Bonnie Malloy, graduate from Florida State University with a certificate in Environmental
and Land Use Law. “Testing Cooperative Federalism: Water Quality Standards under the Clean Water
Act,” March 21, 2012]
To complicate matters, Congress frequently contradicted
itself by declaring the states’ primacy and at the same time referring to a
again granted the
federal government more powers. Specifically, although the states were charged with setting WQS, EPA
was asked to “develop comprehensive programs for preventing” pollution and to encourage uniform
state laws by providing research and guidance to the states. This goal of national uniformity diluted the
states’ discretion in establishing WQS and utilizing innovative methods.84 The 1965 and 1972 amendments appeared to erode a
“national interest” that needed a uniform response.82 In order to achieve the desired consistency, Congress
significant portion of the “initiative and flexibility of the States in exercising their primary responsibilities and rights” to abate pollution.
However, the only right lost was the ability of the states to drag their feet in setting standards. Now, the federal government was required to
step in. While the increased federal control may lead one to conclude that EPA was now the states’ boss, the states still retained the primary
duty of administering WQS. As long as the states acted at a reasonable pace and nonarbitrarily, they had little to fear from EPA. It is important
to note that even after EPA has set standards, the states may resubmit their own (corrected or new) standards for EPA’s approval (and
subsequent withdrawal of the federal standards). For instance, states can always enact WQS that are more stringent than the federal
standards.86 Despite these
flexibilities, the courts have often reiterated the states’ primary role as a warning
against EPA encroaching states’ rights. D. The Judiciary’s Limitations The Supreme Court has bolstered states’
rights in several decisions that could be understood as limiting the federal government’s authority within the WQS context.
At a minimum, the Court’s willingness to emphasize the states’ primacy and uphold state actions that limit or change federally-set standards
may send a message to federal agencies to tread lightly when initiating actions within this area. Although these cases are supportive of state
autonomy in land use, they neither expand states’ rights past any right already granted or preserved in the CWA nor abridge federal authority.
Some infringement of states’ traditional land use authority will necessarily result any time a federal
agency follows the CWA’s mandatory duties to set WQS for states that fail to do so or do so incorrectly.
Scalia found that the Corps stretched the terms “the waters of the United States” too far when requiring
permits for certain wetlands that had no clear, continuous surface connection to ditches that only
periodically drained into navigable waters.89
L – Conservation
Water allocation is distinctly a state’s rights issue
Robin Kundis Craig, 6-8-2013, USC Gould School of Law, Adapting Water Federalism to Climate Change
Impacts: Energy Policy, Food Security, and the Allocation of Water Resources, Environment & Energy
Law & Policy Journal, Vol. 5, p. 183, 2010, FSU College of Law, Public Law Research Paper No. 431
In sharp contrast to navigation, authority
over water allocation—the law governing who has the right to remove fresh
water from its natural watercourse and to use that water for some consumptive purpose, such as
irrigation, drinking water, or industrial manufacturing—is deemed, sometimes obsessively, to belong to the
states.39 Thus, this aspect of water management provides a quintessential example of states’ rights or
decentralized federalism. There is little question that water allocation is decentralized, with the exact principles and
requirements governing the withdrawal and consumptive use of water varying considerably from location to location.40 When it comes to ground
water regulation, for example, and even generalizing, the states have followed at least five different regulatory
systems.41 With regard to surface water, the eastern states inherited from England the doctrine of riparianism,
which ties the right to use water to ownership of the land adjoining the water source—i.e., the riparian
landowners.42 Even so, many eastern states have since realized that the legal connection of consumptive use rights to riparian land ownership limits non-riparian
development43 and have transitioned to “regulated riparianism” and administrative permitting.44 In contrast, the perpetually water-limited
drought-threatened western states generally rejected riparianism in favor of the prior appropriation
doctrine.45 Prior appropriation operates on a principle of “first in time, first in right”—the first user to
apply water to a beneficial use, without waste or abandonment, acquires a continued right to a water
supply superior to that of later users drawing water from the same source.46 Nevertheless, Hawaii follows its
own rules regarding the allocation of surface water in order to recognize Native Hawaiian traditions and
rights with respect to water,47 while California, Nebraska, and Oklahoma combine riparian and prior
appropriation rules in systems known as the California Doctrine.48 Of course, water allocation is not a pure example of
decentralized federalism, as Reed Benson has discussed at length.49 Nevertheless, the federal government does go to significant
effort to preserve states’ rights with respect to water allocation. For example, the Desert Land Act of 187750
applies to lands in California, Oregon, Nevada, Colorado, Washington, Idaho, Montana, Utah, Wyoming,
Arizona, New Mexico, North Dakota, and South Dakota that were public (federal) at the time of
enactment.51 As interpreted by the Supreme Court, in that statute Congress both severed non-navigable
waters from the public lands, ending common-law riparian rights,52 and gave control over water rights in
those waters to the states,53 effectively shifting the legal ability to water rights on those lands from the
federal government to the states. Similarly, in section 8 of the Reclamation Act of 1902, Congress declared that: Nothing in this Act shall be
construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or
distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this Act, shall
proceed in conformity with such laws . . . .54 Thus, Congress not only sought to respect the states’ laws on water allocation but also to subject the Secretary of the
Interior and its subsidiary, the Bureau of Reclamation, to them.55 As the Supreme Court explained in 1978, “[a] principal motivating factor behind Congress’
decision to defer to state law was thus the legal confusion that would arise if federal water law and state water law reigned side by side in the same locality.”56
However, “[b]oth sponsors and opponents of the Reclamation Act also expressed constitutional doubts as to Congress’ power to override the States’ regulation of
waters within their borders.”57 Notably, this predilection for preferring state law in the context of water allocation is so strong that Congress and the Secretary
have followed the Reclamation Act’s model even when a particular project could have been justified on navigation grounds, potentially overriding the state’s
rules.58 Another example of federal preservation of state primacy in water allocation comes in the Clean Water Act. This statute explicitly states that: It is the policy
of Congress that the authority of each State to allocate quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise impaired by this
chapter. It is the further policy of Congress that nothing in this chapter shall be construed to supersede or abrogate rights to quantities of water which have been
established by any State. Federal agencies shall cooperate with State and local agencies to develop comprehensive solutions to prevent, reduce and eliminate
pollution in concert with programs for managing water resources.59 While this provision makes it clear that the EPA and the Army Corps are not in the business of
establishing water rights, the courts have done little to explicate its full meaning. In general, the federal courts have adopted a policy of accommodation,
emphasizing that while this provision “preserve[s] the authority of each State to allocate water quantity as between users, [it does] not limit the scope of water
pollution controls that may be imposed on users who have obtained, pursuant to state law, a water allocation.”60 However, more recent cases from the Supreme
Court have stressed that “the Clean Water Act provides for a system that respects the States’ concerns”61 and have read federal regulatory authority narrowly “to
avoid significant constitutional and federalism questions . . . .”62 Perhaps not coincidentally, the U.S. Court of Appeals for the Ninth Circuit recently expressed more
definitive protection for state authority over water allocation, concluding that “[i]n the absence of state law to the contrary, water withdrawals are not subject to
the requirements of the Clean Water Act.”63 Congress’s repeated determination to preserve state authority over water allocation raises, from the opposite
perspective from federal supremacy in navigation, the question of why? Why has the federal government generally been deferential to the states in the context of
water allocation? Again, Benjamin Sovacool’s typology suggests answers. Sovacool
argues that: [t]he case for devolution of
environmental policy often rests on a set of four interconnected assumptions: (i) that decentralization
induces experimentation and innovation; (ii) devolution provides more flexibility in responding to
environmental problems; (iii) decentralization improves accountability and equity; and (iv) states will
engage in welfare-enhancing competition to craft better environmental policies.64 These assumptions
ring true in the field of state water allocation. First, states have experimented with and evolved many
aspects of their water law systems to suit local needs and conditions, from the rejection of common-law
riparianism in the West, to the creation of regulated riparianism in the East, to the adoption of widely
varying innovations such as instream flow rights and water banks, to large-scale experimentation with
state public trust doctrines.65 Second, one reason for this experimentation is the wide range of ecological, social, and political conditions among the
states and the resulting inappropriateness of a “one size fits all” approach to water allocation.66 Moreover, decentralization of water rights allocation leaves each
set of state authorities accountable to the people of that state and to intrastate views of equity. Finally, the differences among the states’ water law systems often
do reflect the states’ views regarding which water policies best serve state development or other aspects of state welfare, as can be seen, for example, in the wide
variety of public interest considerations that states incorporate into their permitting procedures.67 Thus, so
long as the principal interests in
and effects of state water allocation decisions are primarily local, a state’s rights approach to water
allocation makes sense. As Parts II and III of this Article will discuss, however, the assumption that both the interests and effects will remain local in a
climate change era is highly questionable. As a result, the traditional states’ rights federalism model for water allocation is the most likely to evolve as a result of
climate change impacts
Biden is seeking to roll back to Obama-Era WOTUS rules- causes litigation, headaches,
and kills the balance Trump set
Good 6/10
Keith Good, Former USDA National Statistics Service, Agricultural Economics Graduate from Perdue
“Biden Administration Seeks to Rewrite Trump Clean Water Rule” 6/10/21 SK
Washington Post writer Dino Grandoni reported this week that, “The
Biden administration is set to toss out President
Donald Trump’s efforts to scale back the number of streams, marshes and other wetlands that fall under
federal protection, kicking off a legal and regulatory scuffle over the fate of wetlands and waterways
around the country, from the arid West to the swampy South. “Michael Regan, head of the Environmental Protection Agency, said his
team determined that the Trump administration’s rollback is ‘leading to significant environmental degradation.’ The EPA and Army
Corps of Engineers will craft a new set of protections for waterways that provide habitats for wildlife and safe drinking
water for millions of Americans, according to a joint statement. Reuters News reported this week that, “President Joe Biden’s administration on
Wednesday announced its intent to protect more U.S. waterways through environmental regulations, reversing a Trump-era rollback that had
been urged by farmers, ranchers and manufacturers.” “With the announcement, the
Biden administration is wading into a
decades-long battle over how far federal officials can go to stop contaminants from entering small
streams and other wetlands.” The Post article noted that, “In 2015, the Obama administration expanded federal authority to stop or
curtail development that could harm a variety of wetlands, streams and ditches that feed into larger bodies of water protected under the Clean
Water Act. “Heeding the call of home developers, oil drillers and growers who saw the restrictions as detrimental to their livelihoods, the
Trump administration rolled back those Obama-era pollution controls.” ‘Now, Regan
says he’s trying to strike the delicate
balance between conservation and development that both the Trump and Obama administrations failed to reach,’ the Post
article said. New York Times writer Lisa Friedman reported this week that, “Tuesday’s announcement does not start the process of revising the
regulation. That will come when the E.P.A. officially promulgates a proposed new rule, possibly later this year. Wednesday’s action was a legal
move in which the Department of Justice and Department of the Army formally requested repeal of the Trump-era rule.” The Times article
indicated that, “Environmental groups and Democrats in Congress praised the announcement and pressed the administration to work quickly to
unravel the Trump policy. ‘Every day the ‘Dirty Water’ rule remains in effect, it causes irreparable harm to our health, to our environment, and
to our economies,’ Representative Peter DeFazio, Democrat of Oregon and chairman of the House Committee on Transportation and
Infrastructure, said in a statement. “However, some legal
experts said that by moving to repeal Mr. Trump’s measure
and start over again — rather than building on the previous rule — the Biden administration might only
prolong the back and forth that has gone on for years. ‘It could perpetuate this place we are in, in which each
administration throws out what the last administration does, and that is not good for anyone who is interested in this
issue,’ said Kevin Minoli who served as a lawyer at the Environmental Protection Agency in the Clinton, Bush, Obama and Trump
administrations.” DTN writer Todd Neeley reported this week that, “The EPA said a new regulatory effort would be guided by a number of
considerations. “That includes protecting water resources and communities consistent with the Clean Water Act, considering the latest science
and the effects of climate change on waters, and emphasizing a rule with a ‘practical-implementation approach’ for states and tribes. “The EPA
said the new rule would reflect the ‘experience of and input received from landowners, the agricultural community that fuels and feeds the
world, states, tribes, local governments, community organizations, environmental groups, and disadvantaged communities with environmental
justice concerns.'” And Annie Snider reported this week at Politico that, “The issue of which streams and wetlands are subject to federal
regulation has been the source of intense debate virtually since the Clean Water Act was passed, and has been a legal and political quagmire for
the past decade and a half after the Supreme Court issued a pair of muddled opinions that created enormous confusion on the ground. “Over
the past two presidential administrations, the country has ping-ponged back and forth among three
different regulatory definitions, sometimes with different rules in effect in different parts of the
country.” The Politico article reminded readers that, “Regan, who worked closely with farmers and ranchers in his previous job as head of
the North Carolina Department of Environmental Quality, won broad support from agricultural groups when Biden tapped him to helm EPA.”
L – Species Protection
Expanding federal control over aquatic species protection encroaches on state
power—federal control only applies under extraordinary national interests of
interstate species
Robin Kundis Craig, 6-8-2013, USC Gould School of Law, Adapting Water Federalism to Climate Change
Impacts: Energy Policy, Food Security, and the Allocation of Water Resources, Environment & Energy
Law & Policy Journal, Vol. 5, p. 183, 2010, FSU College of Law, Public Law Research Paper No. 431
Dynamic federalism often arises when federal interests in a given regulatory subject are limited or
unarticulated, leaving the state and federal governments to jostle for regulatory and management authority
according to the interests of each.68 As noted, given the lack of comprehensive federal leadership or legislation, the
regulation of greenhouse gas emissions has so far been an example of dynamic federalism.69 In the realm of water, protection and
regulation of aquatic species provides an example of this third kind of federalism. A variety of regulatory
authorities, both state and federal, manage and regulate important aquatic species, and the regulation
of wild animals in general has been the subject of repeated federalism analyses in the U.S. Supreme
Court. On the state side of those analyses, the Court has recognized that “[u]nquestionably the States have
broad trustee and police powers over wild animals within their jurisdictions.”70 As one example of this
authority, state fish, game, and wildlife agencies engage in varying levels of aquatic species regulation.71
Moreover, most states and territories have statutes to protect endangered, threatened, and sensitive
species, including aquatic species.72 Finally, in much the same way that Congress has recognized in
federal statutes state authority over water allocation, Congress has also recognized and helped to
enforce state species-related laws through federal statutes such as the Lacey Act,73 which prohibits the transport
or sale in interstate commerce of fish, birds, or wildlife killed or captured in violation of state law. 74 Nevertheless, in response to
repeated state arguments that authority over wild animals belongs exclusively to the states under the Tenth
Amendment, the Supreme Court has concluded that “[a]lthough States have important interests in regulating wildlife and natural
resources within their borders, this authority is shared with the Federal Government when the Federal Government
exercises one of its enumerated constitutional powers . . . .”75 One such federal power is the Treaty Clause,76
which has supported federal intervention in species regulation both in support of Tribes77 and through
congressional implementation of international treaties,78 limiting state regulatory authority in the process. For example, federal
protection of tribal treaty rights to fish can directly affect state regulation of aquatic species such as
salmon.79 Similarly, federal regulation to implement international treaties, such as through the 1918 Migratory Bird Treaty Act,80 can also
limit state regulation of aquatic species, especially waterfowl. In upholding the Migratory Bird Treaty Act against Tenth Amendment challenges,
the Supreme Court emphasized the federal interests both in international relations and in migratory birds: Here a national interest of very
nearly the first magnitude is involved. It can be protected only by a national action in concert with that of another power. The subject matter is
only transitorily with the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any
powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors
of our forests and our crops are destroyed. It is not sufficient to rely upon the States.81 More domestically, the Supreme Court has also
upheld82 federal regulation of species—specifically, wild burros—pursuant to the Constitution’s Property Clause.83 In response to a federalism
challenge to the Wild Free-Roaming Horses and Burros Act,84 the Court emphasized that the Act “does not establish exclusive federal
jurisdiction over the public lands in New Mexico” but did preempt the application of the New Mexico Estray Act,85 because the Property
Clause, like the Treaty Clause, “gives Congress the power to protect wildlife on the public lands, state law notwithstanding.”86 However, the
most contentious federal intervention in species regulation on federalism grounds has been the Federal Endangered Species Act of 1973
(“ESA”).87 Application of this statute increasingly has implications not only for state aquatic species regulation88 but also for state water
allocation decisions.89 The USFWS implements the federal ESA for terrestrial species, including most freshwater species, while NMFS
implements the Act for marine and anadromous species.90 The appropriate agency lists a species as “endangered” or “threatened” based on
the best scientific evidence available,91 then is supposed to both designate critical habitat for the species92and develop and implement a
recovery plan.93 Once a species is listed, all federal agencies must “insure that any action authorized, funded, or carried out by such agency . . .
is not likely to . . . result in the destruction or adverse modification of” critical habitat.94 Simultaneously, the Act prohibits all persons—
including states—from “taking” listed species,95 and under the agencies’ regulations, habitat destruction can constitute a prohibited “take.”96
Congress enacted the ESA pursuant to both its Treaty Clause97 and its Commerce Clause powers. While the U.S. Supreme Court has not ruled
on the constitutionality of the Act, the Act’s Treaty Clause basis seems secure.98 Moreover, several of the federal Courts of Appeals have
upheld the ESA against claims that Congress exceeded its Commerce Clause powers and violated federalism principles.99 Thus, while federal
interventions into species regulation have been many, Congress has not comprehensively structured the federalism of species regulation.
Instead, federal statutes regarding species are relatively limited in scope (generally by the types of species protected) and, day-to-day, state
regulation often remains far more relevant to the average fishing, hunting, or recreating citizen. Dynamic federalism—the constant interplay
and adjustment of state and federal interests—is thus the norm for aquatic (as for all) species. Benjamin Sovacool, lumping unstructured
dynamic federalism and structured cooperative federalism together under the label “interactive” federalism, has gleaned five advantages to
this approach from the literature: “Proponents posit that the conception of interactive federalism holds five advantages to earlier theories: (i)
plurality, (ii) dialogue, (iii) redundancy, (iv) accountability, and (v) economies of scale.”100 However, aquatic species regulation suggests that
these rationales are less helpful in explaining the amorphous federalism that pervades species regulation than they will be in explaining the
more structured cooperative federalism that governs water quality. For example, with respect to the plurality advantage, Sovacool indicates
that “[a]dvocates of interactive federalism note that having multiple regulators means that different officials with differing perspectives review
a problem.”101 Species regulation and protection, however, often are not a singular “problem” but rather multiple problems that vary with the
species involved and its most immediate stressors. A wholly intrastate species put at risk almost exclusively from in-state fishing presents a
different regulatory problem from migratory birds threatened by both hunting and habitat destruction occurring in multiple countries. Thus,
too, with respect to the dialogue advantage, federalism
in species regulation is often less simultaneous than
progressive, with a default rule being that a wild species is the states’ to regulate until Congress or a
federal agency brings it within a federal regime. Until that point, there may be little dialogue at all
between the levels of government. Nevertheless, once a federal regulatory regime applies, the dialogue advantage of interactive
federalism may be relevant. The ESA in particular explicitly encourages cooperative federal-state management of federally listed species.102
For similar reasons, redundancy
and accountability are infrequent advantages in aquatic species regulation,
although species subject to both federal and state protective laws may benefit from the best of both worlds. Finally, with the notable
exception of migratory and other interstate species, economies of scale are difficult to achieve because
one-size-fits-all regulation is often an inappropriate approach to species regulation. In other words, the
law views species regulation as primarily a local problem, subject to several exceptional situations deserving
of federal attention. As noted, the federal government’s interests are triggered when: (1) species are important to
Tribes; (2) species are the subject of international treaties; (3) species are found on federal lands; or (4) species
destruction and depletion has reached a level where it threatens national biodiversity or interstate commerce.
Notably, these exceptions are diverse and difficult to harmonize to a single federal interest, as evidenced by the
number of constitutional provisions that have been relevant in federal species regulation and the number of federal species-related statutes
that Congress has enacted. Thus,
one would expect the states to retain a prominent role in species protection
despite climate change impacts and the need for adaptation measures.10
L – Spending / Grants
Increased federal spending has put the collapse of federalism on the brink
Peterson & Lastra-Anadon 7-8, (Paul Peterson and Carlos Lastra-Anadon are opinion contributors
for The Hill, "Wasteful local stimulus funding could mark the end of competitive federalism," TheHill, 78-2021, - qcl
A fiscal flood of biblical proportions — $1.3 trillion — is descending upon state and local governments
via four pieces of congressional legislation enacted in the name of COVID relief. No less than $738 billion
is scheduled to be spent in the current fiscal year. The Biden administration and congressional
progressives are promising trillions more. The vast transfer of funds to lower tiers of government
threatens the U. S. federal system as we know it. Until now, state and local governments have relied
mainly on their own fiscal resources. Subject to constitutional and legal constraints, they can use their
wherewithal to address community needs and desires. Grants received from Washington grew from 2
percent to 20 percent between 1957 and 2018, adjusting for inflation, but they were still only one fifth
of all local revenues. We denote these arrangements as “competitive federalism,” because each locality
finds itself contending with its neighbors for needed resources. The “business” of each local
government, James Bryce, the English commentator, said a century ago, is “to mend the roads, … clean
out the village well, … [and] to see that there is a place where straying beasts may be kept.” Competitive
government is unusual. Only 25 of the nearly two hundred sovereign nations in the world have been identified as federal systems, and only
three — Canada, Switzerland, and the United States — give lower-tier governments broad powers to tax, spend, and issue regulations. Alexis
De Tocqueville was the first to notice U. S. federalism’s exceptional qualities. “Americans love their towns,” he said, “for much the same
reasons that [Scottish] highlanders love their mountains.” In both cases, the “peculiar features” have a “more pronounced physiognomy than is
found elsewhere.” De Tocqueville believed democracies marched toward tyranny: Ambitious politicians centralize power by promising bread
and circuses, then suppress those who oppose them. Yet he admitted the United States, despite its democratic institutions, remained the
cradle of liberty. Federalism explained the puzzle. Because politics was local, political ambition focused on minding fences and digging wells.
Strong states and localities encouraged civic engagement, setting up hardy barriers to centralized power and liberty-crushing leaders.
Federalism has taken a hit for its role in the defense of slavery and segregation. Only after African Americans acquired the vote and were able
to protect their interests did De Tocqueville’s insights ring true. By splitting power into pieces and focusing political attention on small but
crucial matters of everyday life,
competitive federalism gives every group, no matter how fragile, an
opportunity to find a place in the political sphere. African Americans are now able to construct local
centers of power that elevate their leaders to a national stage. So can a wide array of other groups,
whether they be ethnic, material, identity, or religious. Federalism is no less important for the country’s
economic prosperity. To attract productive citizens, state and local governments must tend to
community needs. To keep up with their neighbors, localities collect garbage, build schools, dig
sewage systems, pave roads, and construct aqueducts. America’s extraordinary economic growth
across the centuries owes much to this set of arrangements. Though local efforts are uncoordinated,
actions can be taken quickly. Unresolved national conflicts and centralized bureaucracies do not
stultify innovation, as happens in more centralized systems. Federalism abets the competitive spirit
that transformed the United States into the world’s leading economic power by the end of the 19th
Century and continues to propel it to ever greater heights in the 21st. Competitive federalism places
important limits on what state and local governments can do with their own resources. If they tax the
rich too much or give to the poor too generously, they repel those they most need to keep.
Intergovernmental grants fund poverty programs (welfare, Medicaid, food stamps, compensatory
education) necessary to serve needy populations. The “business” side has been mainly funded from
state and local tax resources. If local governments do not use these monies well, property values
decline, and government revenues fall. All this can happen quickly when 13 percent of all households
move annually. At the extreme, bankruptcies loom. Detroit’s school district, the municipal
government in Stockton, Calif., and the state of Illinois have approached that dark hole. State and
local governments once solved fiscal challenges and debt crises on their own. When New York City spent
beyond its means in the early seventies, Washington sternly refused a federal bailout. Today, Congress is
acquiescing to local demands for COVID fiscal relief. We estimate [based on our calculations projecting
past state and local revenues and stimulus into 2021] that in the 2021 fiscal year, the federal
government will pay 35 percent of all state and local government costs, nearly doubling the percentage
as recently as 2018. All this seems kind and generous. Certainly, many state and local politicians are
delighted they have little financially to worry about. California’s Governor Gavin Newsom (D) is even
able to send most California households stimulus checks on the eve of his recall election. But if the
federal government pays the piper, it will soon call the tune. If states and localities lean on
Washington to fund their basic operations, they will lose their autonomy. Competitive federalism, a
system of government that protects American liberties and enhances their prosperity, is now at risk.
L - Preemption
Federal action will discourage state regulatory action-- states are currently overshadowed by
the feds, and may regulate in place of the state.
Adler ’06 (Jonathan H. Adler, Case Western University School of Law, 2006, When Is Two a Crowd: The
Impact of Federal Action on State Environmental Regulation)
Whereas the federal government has broad authority to preclude state regulation, its power to induce state regulation is more proscribed.
State sovereignty precludes the federal government from dictating state regulatory initiatives. As noted
above, such “commandeering” of legislative or executive functions violates the residual sovereignty of state
governments and is not a “necessary and proper” exercise of federal power.85 This constitutional prohibition
hardly leaves the federal government without substantial ability to preempt state regulatory efforts, however. As the Supreme Court noted in
New York v. United States, there are “a variety of methods, short of outright coercion, by which Congress may urge a State to adopt a legislative
program consistent with federal interests.”86 Congress
can encourage “cooperative” regulatory efforts by offering
states ªnancial and other resources to implement regulatory programs in conformity with federal
requirements.87 Where such rewards are insufªcient, Congress may impose various penalties on
noncompliant states, threatening to cut off funds unrelated to the regulatory program at issue or to
preempt state regulatory programs that do not meet federal dictates.88 The federal government’s power to
induce state cooperation is on display throughout the environmental portions of the U.S. Code. While
current federal environmental laws grant expansive regulatory authority to federal agencies, most environmental statutes are implemented
through a “cooperative federalism” model.89
The federal government outlines the contours of a given regulatory
program, and then uses a combination of carrots and sticks to encourage states to implement the
program in accordance with federal regulations.90 The carrots include funding for state regulatory programs; the sticks
include the threat of federal preemption— speciªcally, if states refuse to regulate as the federal government
demands, the federal government may regulate in their place—and, in some instances, the loss of
federal funding not directly related to the implementation of environmental regulations. Provided the
relevant standards are met, states are free to tailor the details of their individual programs to accommodate local conditions and concerns.91
The strongest inducements for state cooperation are probably found in the CAA.92 Pursuant to the CAA, EPA establishes nationally applicable
air quality standards, known as the National Ambient Air Quality Standards (“NAAQS”), for criteria air pollutants, including ozone (“smog”) and
particulate matter (“soot”). States are required to draft State Implementation Plans (“SIPs”) that will ensure that the NAAQS will be met
throughout the state, and submit these plans to EPA for approval.93 The SIPs must include a number of speciªc pollution control measures
mandated by the CAA. If
a state fails to submit an adequate SIP by the appropriate deadlines, it is subject to
one or more federal sanctions, including the loss of federal highway funds, increased offset
requirements for new development, and the imposition of an EPA-enforced Federal Implementation
Plan (“FIP”).94 Furthermore, local transportation projects that do not conform to an EPA-approved SIP are ineligible for federal ªnancial
assistance.95 Federal inducement does not guarantee that states will adopt measures that satisfy federal policy-makers. It does, however,
adjust the relative costs and beneªts (economic and otherwise) of regulatory choices. If states decide that the costs of following federal
preferences are greater than the value of the incentives offered (or if the costs are greater than bearing the punitive sanction threatened), they
may not follow federal wishes. Indeed, in the 1970s when EPA claimed the authority to commandeer state ofªcials directly, some of these
ofªcials still balked.96 States retain the ability to reject federal requirements under the CAA, yet some would argue that this combination of
inducements virtually assures state cooperation. Federal policies that directly influence state regulatory decisions are only half of the picture.
Just as federal action may encourage or discourage state regulatory action directly,
federal action may indirectly, or even
incidentally, encourage or discourage state regulatory action. Federal policies will facilitate greater state regulation
where such actions reduce the costs of state implementation, such as by subsidizing necessary research, or where federal policies increase the
demand for given regulatory policies at the state level so as to alter or “set” state policy agendas. Federal
policies will discourage
state regulatory action where they “signal” that state regulatory action is excessive or unnecessary, or
where they reduce the marginal benefits of adopting state regulatory programs—benefits either to the
general welfare, those interest groups demanding state regulatory activity, or to the policy-makers responsible for adopting the relevant
policies.98 Such crowding out is most likely to occur where federal regulations serve as a substitute for state regulations, though there may be
other factors that have a similar effect. Adding in these indirect influences— facilitation, agenda setting, signaling, and crowding out—produces
a more complete matrix of the ways in which federal policies influence state regulatory choices (see Figure 1b below). Federal regulation and
other policy measures may indirectly encourage or facilitate state environmental regulation. Without
offering any direct
inducements, the federal government may encourage state policymakers to adopt environmental
regulations that they would not otherwise enact by affecting the costs and benefits of state regulatory
measures, or by increasing the demand for given policies at the state level. One way in which federal action may
indirectly encourage greater state regulation is taking actions that affect the state-level policy agenda. Specifically, federal action may elevate
the salience of particular issues to state policy-makers, thereby increasing the demand for regulation or other policy action in a given state.99 In
this fashion, federal policy-makers may engage in “agenda setting” that influences state regulatory policy choices. Actions by all three branches
can have an agenda setting effect. For example, a
study by an executive agency or congressional committee may
identify a particular health concern that may prompt local action to reduce the threat. National debate over a
given issue, such as whether to create or reform a new entitlement, may prompt states to act where the federal government does not.
Similarly, a
judicial decision either requiring the federal government to act, or perhaps finding that the
federal government lacks the power to address a given concern, may raise the profile of a given issue
and increase the demand for action at the state level. An area in which federal agenda setting can be observed is indoor air
pollution. Indoor air pollution is a serious environmental problem. Indeed, by some accounts, indoor air
pollution is a greater health concern than outdoor air pollution in all but the most heavily polluted
cities.100 Yet indoor air pollution is not the sort of problem particularly suited to federal regulation.
Insofar as indoor air pollution is a function of building design and local conditions, and does not involve spillovers across property—let alone
jurisdictional—boundaries, it is the sort of issue that state and local governments should be able to address.101
State and local
governments are in a better position to address indoor air pollution through building codes, real estate
transaction disclosure requirements, workplace exposure regulations, and the like. Thus it should be no surprise
that there are few federal regulations governing indoor air. However, this is not to say that the federal
government is inactive in this area. EPA has programs to address indoor air pollution, but these
programs are, for the most part, designed to increase awareness and understanding about indoor air
concerns and do not include regulatory controls.102 EPA puts out information, including scientific reports, about radon
levels, environmental tobacco smoke and other issues affecting indoor air.103 These reports increase the salience of indoor air pollution for
state and local policy-makers, and therefore may increase the demand for state and local regulatory measures. When EPA released a study
claiming secondhand smoke is a carcinogen,104 it did not prompt federal regulation. Yet numerous local governments cited this study as a basis
for local ordinances controlling secondhand smoke.105 A more recent report by the U.S. Surgeon General106 appears to be having a similar
effect.107 A
combination of federal action and inaction has also increased the salience of climate change
as an environmental policy concern. Various federal agencies have sponsored research and published
reports on the potential impact of anthropogenic emissions of carbon dioxide and other greenhouse
gases on climate change.108 Such actions, combined with the efforts of international organizations and
environmental NGOs, have increased the proªle of “global warming” as a policy issue. At the same time, the
federal government has not adopted any regulatory policies to control emissions of carbon dioxide and
other gases linked to climate change. To the contrary, both Congress and the Executive have, at times, explicitly refused to adopt
such measures.109 This combination of enhancing climate change’s profile on the public policy agenda and failing to act created an opportunity
for states. Over the past decade, numerous
states have adopted measures to address climate change
concerns.110 Although these measures are more aggressive than those adopted by the federal government, most of the state
measures are exceedingly modest, and few involve direct regulatory controls.111 California, however, has sought
to adopt prescriptive regulatory controls. In July 2002, California adopted legislation requiring the California Air Resources Board to “develop
and adopt regulations that achieve the maximum feasible and cost-effective reduction of greenhouse gas emissions from motor vehicles.”112
Even though the federal government has not sought to regulate greenhouse gases, federal
actions—ranging from scientific
reports to explicit refusals to regulate—have almost certainly increased the demand for climate policies
at the state level.
Federal action guarantees state crowd out on environmental policy
ENVIRONMENTAL REGULATION,” Harvard Environmental Law Review, Vol 31, 2007, LH
second potential negative indirect effect of federal regulation on state regulatory choices is crowding
out. This occurs because federal regulation may serve as a substitute for state-level regulation, thereby reducing the benefits of adopting or maintaining state-level protections. Insofar as
voters in a given state demand a certain level of environmental protection, there is no reason to expect states to duplicate federal efforts
when a federal program satisfies that demand, particularly if a state has not already created such a
program. If the federal floor is greater than or equal to the level of environmental protection demanded by a state’s residents, that state has no reason to
adopt environmental regulations of its own once the federal government has acted. To the extent that this effect
occurs, it is separate from—perhaps even in addition to—the signaling effect described above. The claim here is not simply that states regulate less
than they would absent federal regulation—although this claim is almost certainly true. Rather, the claim is
that some states that would adopt regulations more protective than the federal floor, absent the imposition of federal
regulation, have not done so due to federal regulation and may not do so in the future. If this hypothesis is correct, the net effect of
federal environmental regulation in at least some states could be less environmental protection than would have
been adopted had the federal government not intervened.
States solve better – they can regulate, implement, and allocate funding for water
protection effectively.
Berry & Huckins ’19 (Scott Berry at the US Water Alliance who led the writing and outreach around
this toolkit and Sarah Huckins, program associate at the US Water Alliance, “One Water for America
State Policymakers’ Toolkit,” April 2019, The Council of State Governments
Why A State-Focused Toolkit? As the Seven Big Ideas continue to spark action around the country, it’s clear that state
governments are essential to realizing the promise of One Water. State agencies have a primary role in
implementing and enforcing clean water, surface water, and drinking water laws. State policymakers
are uniquely positioned to address water management issues through legislation and executive office initiatives. These
policymakers can work directly with their municipalities to hear the concerns of ratepayers and give
local governments the flexibility and support they need. Drawing public attention to water challenges
and solutions can be an effective way to develop the public and political will for innovative policy. The
state agencies that are part of a governor’s administration can also set reasonable regulatory policy that ensures
compliance but also preserves local government flexibility and innovation. State legislatures can also advance sustainable
water management by prioritizing funding and financing for water infrastructure and management
programs. In many states, governor’s offices also propose and advocate for their own legislative ideas. Governors and legislatures also have
a role in cooperating with the federal government, which assists in funding and sets regulatory standards through agencies such as the
Environmental Protection Agency (EPA). Roles
of State Government • Establish Targets and Goals. Develop and broadcast
an achievable One Water vision. For example, the water service extension goals set by Kentucky in Big Idea 1. • Benchmark
Performance. Set strong but realistic performance metrics. For example, the Lead and Copper Rule changes established by Michigan in Big
Idea 6. • Create
Enabling Conditions. Create incentives for innovation and performance. For example, the targeted funding used by
North Carolina in Big Idea 5, or permit flexibility implemented by Wisconsin in Big Idea 2. • Remove Barriers and Bottlenecks.
Reevaluate state laws or regulations that may hamper innovative problemsolving or filling gaps in existing law. For example, the California State
Water Board receiving additional authority in Big Idea 1. • Prioritize Funding and Financing. Establish and secure funding and
financing for water infrastructure and water management programs. For example, the dedicated funding mechanisms created by Iowa and
Missouri in Big Idea 3.
To spotlight the important role that state governments can play in advancing
sustainable water management, we developed this toolkit as a resource for elected officials and staff in
the executive and legislative branches of state government. For each of the Seven Big Ideas, we briefly
summarize the key issues and then provide real world examples of how states are forging progress. The
promising examples are not meant to be prescriptive, but rather serve as a starting place for the
generation of potential solutions that are specific to individual state contexts. For research purposes, these
examples include endnote citations back to the legislative or regulatory language that was passed and/or implemented.
L – Tribal Lands
Indigenous water governance is a constant battle between the states and feds
Sly 93 (Peter W. Sly is a lawyer teaching at University of Arizona. "“5. Federalism and Self-Determination: State Goals in Indian Water
Rights Disputes” in “Indian Water in the New West” on University of Arizona Press,"
The vast federal proprietary and trust landholdings in the West will present dynamic issues of federalism
and water rights throughout the 1990s. In this decade, western states are becoming increasingly
concerned with water management. The federal government will not fund major new water projects,
yet its regulatory presence in western water matters is increasing. In this climate, Indian water rights
disputes provide both opportunities and dangers for states. States and tribes may work together to
foster federal funding of some water projects. Some states may have common hydrologic interests with
tribes. Some states fear increasing federal regulatory control as a result of uncertain Indian water rights
claims. All states have four major interests in Indian water disputes: regulatory and adjudicatory
simplicity, the protection of proprietary and fiscal interests, the maintenance of the integrity of state
water law, and interstate interests. In the exercise of its regulatory powers, the state acts in water
matters as a “traffic cop.” As with any exercise of state police powers, simple, certain, and clear rules are
desirable. In resolving conflicts over the use of a finite resource, all water managers seek to remove
uncertainty. Western water laws are built on efforts to increase certainty: for example, the requirement
that a water right must be put to continuous beneficial use to remain protected. Uncertain, potentially
senior rights, such as reserved water rights, affect all junior rights on the system. Uncertainty in the
amount of water rights is especially disruptive to current efforts to make water more transferable. To
avoid uncertainty, states have sought uniform administration, simplification of general stream
adjudications, and negotiation where feasible. Finally, states have a concern with water settlements that
obligate the state to fund water supply as part of the settlement. All states recognize some cost-sharing
obligations. However, Indian water conflicts are a consequence of conflicting federal policies for public
lands, water, and Indians. States believe the federal government should fund Indian water rights
settlements that result from inconsistent prior federal policies and practices. The net effect of the
Reorganization Act's repudiation of the allotment policy was to reduce greatly state influence over
Indian resources. Local governments could no longer gain control of tribal lands through state tax and
inheritance laws59 and lands could no longer be given to individual tribal members and subsequently
sold to non-Indians (thereby increasing the state tax base).
! – International Conflict
Federalism prevents international secessionist wars---absent the American model they
are destabilizing.
Erin Ryan 17. Assistant Professor, Lewis & Clark Law School; J.D., Harvard Law School. “Secession and
Federalism in the United States: Tools for Managing Regional Conflict in a Pluralist Society.” Oregon Law
Review 96: 123.
Yet the impetus toward devolution also surfaces in conflicts between competing intra-national constituencies, cleaving along regional, cultural,
ethnic, religious, linguistic, and ideological lines. In the dominant circles of international law, secession is disfavored— viewed as an extra-legal
alternative that goes beyond the requirements of generally accepted principles of self-determination (at least absent gross violations, alien
subjugation, international exploitation, or a colonial context).3 Nevertheless, recent
calls for secession in Catalonia, Iraqi
Kurdistan, Scotland, Québec, and South Sudan reveal multiple political contexts in which related
questions are being raised about how best to balance competing claims for autonomy,
interdependence, political voice, and exit.4
In the United States, a genuine secession movement by the Alaskan Independence Party was judicially
quelled as recently as 2010, highlighting the durability of the issue even in the modern United States.5 And while
calls for full secession are seldom given much credence in the American political context, calls to further devolve regulatory
authority occupy hallowed positions in major American political party platforms.6 Devolution claims, often
framed in terms of “States’ Rights,” have become customary on the political right—but in the wake of the 2016 Presidential Election, they are
increasingly heard on the left as well.7 A group of California citizens seeking their own independence from the United States have organized a
“Calexit” campaign, seeking a 2019 referendum on California’s exit from the American Union.
As secession and
devolution movements threaten to destabilize federations once thought impenetrably
secure—from the European Union to the United Kingdom to NATO—scholars around the globe are tapping the wisdom of
the Westphalian and post-Westphalian worlds to better understand the available tools for managing regional governance conflicts.9 New
scholarship exploring how different nations have managed these conflicts, some more and some less successfully, promises to broaden the
perspectives of researchers, government officials, and citizens struggling to resolve sovereignty conflicts with full appreciation for the
underlying principles they represent.
In support of that goal, this Article shares the
American experience of devolution conflict, probing our experiments with both
federalism and secession for lessons on managing the endemic tension between impulses toward autonomy
and interdependence in societies composed of different regional, cultural, and ideological
subcommunities. It explores secession in contexts both familiar and controversial, from the American Revolution through the Civil War,
addressing secession at both the national and subnational levels.
It also considers the
development of American federalism, from a model emphasizing vertical separation
toward one that harnesses inevitable jurisdictional overlap to cultivate opportunities for collaborative
and competitive engagement. It assesses the unique advantages of American federalism for mediating the
opposing forces of political entropy, which operate to pull the component pieces of pluralist nations
apart, and political gravity, which pull them together in pursuit of common goals. It considers both the
successes and limits of the American model, identifying those aspects that are instructive for governance
elsewhere and those that may be inapplicable abroad. Finally, it reflects on the way that federalism can act as a double-edged sword—or
perhaps more accurately, a simultaneous sword and shield—providing a potential conduit for claims to secession at the same time that it
functions as a safety valve to defuse the same impulses.
Beginning with a historical account of secession in the United States, Part I reviews American secession movements at both the subnational and
national level, with special focus on the paradigmatic cases of the American Revolution and the American Civil War. Both examples
demonstrate the deep
regional tensions that can surface within a larger overall polity, reflecting the
challenges of pluralist societies more generally. The southern states’ failed attempt to secede during the Civil War led to the
formal disavowal of secession in the United States—leaving us to grapple with the meaning of what had already happened during the
Revolutionary War, when the American colonies unilaterally separated from Great Britain.
After considering the meaning of these wrenching moments in American history, Part II turns to our
preferred means of mediating
regional conflict, the institution of constitutional federalism. By dividing sovereign authority between
local and national levels of government, federalism creates multiple simultaneous forums for political
contest, competition, and collaboration that have diffused regional tension through engaged multilevel
governance. Like all systems of federalism, the U.S. model cultivates the “sweet spot” between
competing claims for local autonomy and national interdependence, allocating sovereign authority
among levels of government where each best advances the overall goal. The availability of nested
political sites for regional expression, interjurisdictional innovation, and negotiated governance have
many benefits, including fortification of the American Union against the kinds of conflicts that might
otherwise lead toward fragmentation.
Federalism prevents civil conflicts from escalating to global war
Lawoti 3/18/09
“Federalism for Nepal”, Mahendra Lawoti is professor at the department of political science at Western Michigan University, writer of several books and Ph.D. from
the University of Pittsburgh with dissertation of Exclusionary Democratization: Multicultural Society and Political Institutions in Nepa.,
Cross-national studies covering over 100 countries have shown that federalism minimizes violent conflicts
whereas unitary structures are more apt to exacerbate ethnic conflicts. Frank S. Cohen (1997) analyzed ethnic conflicts and
inter-governmental organizations over nine 5-year –periods (1945-1948 and 1985-1989) among 223 ethnic groups in 100 countries. He found that federalism
generates increases in the incidence of protests (low-level ethnic conflicts) but stifles the development of rebellions (high-level
conflicts). Increased access to institutional power provided by federalism leads to more low-level conflicts
because local groups mobilize at the regional level to make demands on the regional governments. The
perceptions that conflicts occur in federal structure is not entirely incorrect. But the conflicts are low-level and manageable ones. Often, these are desirable
conflicts because they are expressions of disadvantaged groups and people for equality and justice, and part of a process that consolidates democracy. In addition,
they also let off steam so that the protests do not turn into rebellions. As the demands at the regional levels are addressed, frustrations do not build up. It checks
abrupt and severe outburst. That is why high levels of conflicts are found less in federal countries. On the other hand, Cohen found high levels of conflicts in unitary
structures and centralized politics. According to Cohen (1997:624): Federalism
moderates politics by expanding the opportunity
for victory. The increase in opportunities for political gain comes from the fragmentation/dispersion of policy-making power… the compartmentalizing
character of federalism also assures cultural distinctiveness by offering dissatisfied ethnic minorities proximity to public affairs. Such close contact provides a feeling
of both control and security that an ethnic group gains regarding its own affairs. In general, such institutional proximity expands the opportunities for political
participation, socialization, and consequently, democratic consolidation. Saidmeman,
Lanoue, Campenini, and Stanton’s (2002:
118) findings also support Cohen’s analysis that federalism influences peace and violent dissent
differently. They used Minority at Risk Phase III dataset and investigated 1264 ethnic groups. According to
Saideman et al. (2002:118-120): Federalism reduces the level of ethnic violence. In a federal structure, groups at
the local level can influence many of the issues that matter dearly to them- education, law
enforcement, and the like. Moreover, federal arrangements reduce the chances that any group will
realize its greatest nightmare: having its culture, political and educational institutions destroyed by a
hostile national majority. These broad empirical studies support the earlier claims of Lijphart, Gurr, and Horowitz that
power sharing and autonomy granting institutions can foster peaceful accommodation and prevent violent conflicts
among different groups in culturally plural societies. Lijphart (1977:88), in his award winning book Democracy in Plural Societies,
argues that "Clear boundaries between the segments of a plural society have the advantage of limiting mutual contacts and consequently of limiting the chances of
ever-present potential antagonisms to erupt into actual hostility". This is not to argue for isolated or closed polities, which is almost impossible in a progressively
globalizing world. The case is that when quite distinct and self-differentiating cultures come into contact, antagonism between them may increase. Compared to
federal structure, unitary structure may bring distinct cultural groups into intense contact more rapidly because more group members may stay within their regions
of traditional settlements under federal arrangements whereas unitary structure may foster population movement. Federalism reduces conflicts because it provides
autonomy to groups. Disputants within federal structures or any mechanisms that provide autonomy are better able to work out agreements on more specific
issues that surface repeatedly in the programs of communal movement (Gurr 1993:298-299). Autonomy agreements have helped dampen rebellions by Basques in
Spain, the Moros in the Philippines, the Miskitos in Nicaragua, the people of Bangladesh’s Chittagong Hill Tracts and the affairs of Ethiopia, among others (Gurr
1993:3190) The Indian experiences are also illustrative. Ghosh (1998) argues that India state manged many its violent ethnic conflicts by creating new states (Such
as Andhra Pradesh, Gujurat, Punjab, Harayana, Arunachal Pradesh, Goa, Himachal Pradesh, Meghalaya, Mizoram and Nagaland) and autonomous councils (Such as
Darjeeling Gorkha Hill Council, Bodoland Autonomous Council, and Jharkhand Area autonomous Council, Leh Autonomous Hill Development Council). The basic
idea, according to Ghosh (1998:61), was to devolve powers to make the ethnic/linguistic groups feel that their identity was being respected by the state. By
providing autonomy, federalism
also undermines militant appeals. Because effective autonomy provides resources and
institutions through which groups can make significant progress toward their objectives, many ethnic activities
and supporters of ethnic movements are engaged through such arrangements. Thus it builds long-term support for peaceful solutions
and undermines appeals to militant action (Gurr 1993:303). Policies of regional devolution in France, Spain and Italy, on the other hand,
demonstrate that establishing self-managing autonomous regions can be politically and economically less burdensome for central states than keeping resistant
peoples in line by force: autonomy arrangements have transformed destructive conflicts in these societies into positive interregional competition".
Empirically federalism bolsters peacemaking and promises to solve future conflicts
Daniel J. Elazar – 2014 (Jerusalem Center for Public Affairs) FEDERALISM AND PEACE-MAKING. April 19, 2012.
Retrieved Apr. 25, 2014 from
One of the most important developments contributing to the shift in the world political paradigm from
statism to federalism has been the demonstrated utility of federal arrangements in peace-making. In a
world well advanced in its movement toward federalism as the new paradigm for interstate and
intergroup relations, we must expect it also to offer considerable promise for peace-making. While it is wise
not to exaggerate that promise and look upon federalism as some kind of vade macum, we as students of federalism with our institutions
should work hard to find ever better ways to utilize and apply federalism to the cause of peace.¶ This
conference has focused on
many examples including the most outstanding, e.g., the European Union, post-Franco Spain, postapartheid South Africa, Belgium, the United Kingdom, India and earlier classic examples such as Australia
and Canada. We have also focused on ongoing efforts including advanced ones such as Russia and those
in progress like Cyprus and the Israel-Palestinian conflict.¶ As we all know, this is by no means an exhaustive list. We have
made no direct reference to resolution of such North American problems as the status of Puerto Rico or of the various Native American nations.
We have not considered the Caribbean Community or the importance of the states in the restoration of democracy in Brazil. We did take a
relatively bold step in looking at regional economic arrangements as incipient confederal ones or more with political implications. We did pay
serious attention to the revival of confederation as a species of the genus federalism and the utility of confederal arrangements in peacemaking efforts and we moved further down the road towards understanding how asymmetrical arrangements can be utilized in federal and
confederal systems.¶ What just about everyone meeting at this conference understands from one perspective or another is how
federalism has become an aid to peace-making, at least since the end of World War II. At the same time we
have not really focused on those cases where the declared use of federalism or the functional use of federal arrangements have not worked.
There is almost a paradox here. Where federalism has worked, often it has been proclaimed as something else. Where federalism has been
formally introduced as a solution to peace-making it has more often than not failed or at the very least disappointed. It is almost as if the term
"federalism" demands too much of the parties involved and federal arrangements can only be used successfully in conflict situations when they
are masked as "functionalism" or "autonomy" or "decentralization" or whatever.
Violent ethnic conflicts escalate globally
Mead 13, James Clarke Chace Professor of Foreign Affairs and Humanities at Bard College and Editorat-Large of The American Interest magazine, Walter Russell, Peace In The Congo? Why The World Should
These wars continue today; the Israeli-Palestinian conflict, the war in Syria, the Kurdish struggle for independence, the tensions in the Caucasus.
So far, the only way of settling them for good has been to exterminate minorities or to kick hundreds of thousands or even millions of people
(Germans from Poland and the Sudentenland after World War II) out to create homogeneity. One
of the biggest questions of the
21st century is whether this destructive dynamic can be contained, or whether the demand for ethnic,
cultural and/or religious homogeneity will continue to convulse world politics, drive new generations of
conflict, and create millions more victims. The Congo conflict is a disturbing piece of evidence suggesting that, in Africa at least,
there is potential for this kind of conflict. The Congo war (and the long Hutu-Tutsi conflict in neighboring countries) is not,
unfortunately alone. The secession of South Sudan from Sudan proper, the wars in what remains of that unhappy country, the
secession of Eritrea from Ethiopia and the rise of Christian-Muslim tension right across Africa (where religious
conflict often is fed by and intensifies “tribal”—in Europe we would say “ethnic” or “national”—conflicts) are strong indications that
the potential for huge and destructive conflict across Africa is very real. But one must look beyond Africa.
The Middle East of course is aflame in religious and ethnic conflict. The old British Raj including India, Pakistan,
Bangladesh, Burma and Sri Lanka offers countless examples of ethnic and religious conflict that
sometimes is contained, and sometimes boils to the surface in horrendous acts of violence. Beyond that,
rival nationalisms in East and Southeast Asia are keeping the world awake at night. The Congo war
should be a reminder to us all that the foundations of our world are dynamite, and that the potential for
new conflicts on the scale of the horrific wars of the 20th century is very much with us today. The second
lesson from this conflict stems from the realization of how much patience and commitment from the international community (which in this
case included the Atlantic democracies and a coalition of African states working as individual countries and through various international
institutions) it has taken to get this far towards peace. Particularly at a time when many Americans want the US to turn inwards, there are
people who make the argument that it is really none of America’s business to invest time and energy in the often thankless task of solving these
conflicts. That might be an ugly but defensible position if we didn’t live in such a tinderbox world. Someone could rationally say, yes, it’s terrible
that a million plus people are being killed overseas in a horrific conflict, but the war is really very far away and America has urgent needs at
home and we should husband the resources we have available for foreign policy on things that have more power to affect us directly. The
problem is that these wars spread. They may start in places that we don’t care much about (most Americans didn’t give a rat’s patootie about
whether Germany controlled the Sudetenland in 1938 or Danzig in 1939) but they tend to spread to places that we do care very much about.
This can be because a revisionist great power like Germany in 1938-39 needs to overturn the balance of power in Europe to achieve its goals, or
it can be because instability in a very remote place triggers problems in places that we care about very much. Out
of Afghanistan in
2001 came both 9/11 and the waves of insurgency and instability that threaten to rip nuclear-armed
Pakistan apart or trigger wider conflict with India. Out of the mess in Syria a witches’ brew of terrorism
and religious conflict looks set to complicate the security of our allies in Europe and the Middle East and
even the security of the oil supply on which the world economy so profoundly depends. Africa, and the
potential for upheaval there, is of more importance to American security than many people may
understand. The line between Africa and the Middle East is a soft one. The weak states that straddle the
southern approaches of the Sahara are ideal petri dishes for Al Qaeda type groups to form and attract local
support. There are networks of funding and religious contact that give groups in these countries potential access to funds, fighters, training and
weapons from the Middle East. A war in the eastern Congo might not directly trigger these other conflicts, but it helps
to create the
swirling underworld of arms trading, money transfers, illegal commerce and the rise of a generation of
young men who become experienced fighters—and know no other way to make a living. It destabilizes
the environment for neighboring states (like Uganda and Kenya) that play much more direct role in potential
crises of greater concern to us.
Yes Modeling
Countries still model us.
Rolunda et al ’13 - *Doy and Dee Henley Chair and Distinguished Professor of Jurisprudence @ Chapman University **professor of
law @ University of Virginia ***Vice President of National Council of the Patriotic People's Front from 1989 to 1990(*Ronald, **Mila Versteeg,
Dr. ***István Stumpf, “the U.S. Constitution Had on the Recently Adopted Constitutions of Other Nations?”, The Heritage Foundation, 29 May
2013,, Accessed:
The basic notions of rule of law, separation of powers, natural law, judicial review, and human rights
came to life thanks to the example of the United States in the last 225 years, which in turn has influenced
the entirety of Western civilization, including Hungary. The theoretical foundations of American
constitutionalism, the works of American legal scholars, and the practice of the U.S. Supreme Court are
valuable resources and strong points of reference for lawyers in Hungary and all over the world. I am
confident that it is for the benefit of the American academia to study from time to time how the concepts and institutions of American
constitutionalism flourish or face difficulties in other countries. It is an honor for me to be here and take part in this conversation. As Hungary
sets out to solidify its commitment to truths that are self-evident, to the protection of unalienable rights, to a limited but effective government,
and to a renewed constitutionalism, I am convinced that we may in the future inspire one another. Let me close with this thought: There is
much talk about a post-American era and American decline. As a young scholar visiting America since the 1980s, I got to know this country
through road trips across the heartland as well as Ivy League university lecture halls, and I can tell you that the
ideals of the Founding
Fathers, the principles of the U.S. Constitution, and the Declaration of Independence were not and are
not in decline. On the contrary, democracies around the world, old and new, need them now more
than ever.
Multiple empirics prove.
Rahdert ‘7 (Mark C; Professor of Law at Temple University; 1/30/07; “Comparative Constitutional Advocacy”;; American University Law Review, Volume 56, Issue 3;
accessed 6/30/17)
The past fifty years have changed all of that in remarkable ways, most notably through the enactment of new constitutions and the
development of tribunals for authoritative constitutional interpretation and application in democratic systems around the world.45 With
direct U.S.
encouragement, elements of American-style constitutionalism were transplanted into the new
Japan and West Germany.46 Some leading Western European
nations contemporaneously adopted new constitutional systems complete with formal constitutional courts.47
English-speaking constitutional legal systems with judicial review powers emerged in several British Commonwealth
nations including Canada, Australia, and New Zealand.48 New supranational constitutional systems with
authoritative judicial structures, most notably the European Court of Human Rights and the courts of the European
Union, developed.49 Constitutions and constitutional courts were installed in some of the nations that emerged from
crumbling colonial empires in Africa, the Middle East, the Indian subcontinent, Southeast Asia, and the Pacific.50
More recently, systems of constitutional law and adjudication in constitutional courts were adopted in several Eastern
European republics that were organized (sometimes with U.S. technical assistance) after the disintegration of the Communist bloc and
the Soviet Union.51 Indeed, if one were to create a list of the fifteen or twenty leading world constitutional systems
today, the overwhelming majority either did not exist or were in their infancy fifty years ago. 2. Similarity of issues
Many of the world’s leading constitutional systems have been in business long enough to develop significant and
relatively mature law on constitutional questions that resonate with issues in the United States. There is, for example, a
robust transnational jurisprudence on such issues as reproductive freedom,52 freedom of speech,53 freedom
of religion,54 racial and ethnic equality,55 language rights of minorities,56 gender equality,57 sexual
orientation equality,58 privacy,59 constitutional limits on punishment,60 the right to counsel for the indigent,61
and the rights of the accused.62 An international jurisprudence is also developing on such structural issues as
post-war constitutional structures adopted in
separation of powers and the rulemaking authority of government agencies,63 war and emergency executive powers,64
and even (to a limited degree) federalism. Exploring the jurisprudence of other nations on these and other similar
constitutional questions, one is struck by the similarity to U.S. constitutional law. This similarity has at least two
sources: a commitment to common constitutional norms, and the need to apply them to comparable cultural, social, political, and economic
developments.66 While the various world constitutional
systems reflect important differences in language, structure,
and history, they are often committed to the same basic principles as the U.S. Constitution. This is especially
true in the field of human rights67 because the U.S. Constitution has served as a model for human rights guarantees around the world.68 While
more modern
constitutions elsewhere have often expanded beyond the U.S. Constitution, including explicit guarantees that the U.S.
Constitution lacks,69 many have looked (often explicitly) to the U.S. Constitution for guidance when crafting their
own Constitutions.70 Because their constitutional law embraces comparable basic human rights, it encounters similar constitutional
questions. While reliance on the U.S. model for structural issues has been less direct, other democracies also share some common
structural ground, particularly in the delineation of separate spheres for legislative, executive/administrative, and
judicial functions.71 Like the U.S. Constitution, many foreign constitutions delineate legislative and executive powers and
functions, and their legal systems face instances of potential horizontal and vertical conflict among internal
governmental structures.72
Countries follow American federalism
Aliff 2015
(S.M., Head, Dept. of Political Science, Faculty of Arts &Culture,South Eastern University of Sri
Lanka,Oluvil, Nov 2015, “New trends& Models in Federalism”, IOSR Journal of Humanities and Social
Science, 6/27/17,
A federal form of government has a multi-order structure, with all orders of government having some
independent as well as shared decision-making responsibilities. Federalism represents either a “coming together” or a
“holding together” of constituent geographic units to take advantage of the greatness and smallness of nations in a flat (globalized) world in
which many nation-states are too large to address the small things in life and too small to address large tasks.(Anwar Shah ,2006)( Subscribing
to the “coming together” view of federalism, Daniel J. Elazar pointed out and elaborated that the word “federalism” has its roots in the
Latin foedus, meaning “league,” “treaty,” or “compact.”( Daniel J. Elazar,1980) More recently, Robert Inman noted that “the word „federal‟ has
come to represent any form of government that brings together, in an alliance, constituent governments each of which recognizes the
legitimacy of an overarching central government to make decisions on some matters once exclusively the responsibility of individual member
states.”( Robert Inman,2006) “Coming together” has
been the guiding framework for mature federations such as the
United States, Canada, and, more recently, the European Union. The alternative “holding together” view of federalism,
also called “new federalism,” represents an attempt to decentralize responsibilities to state-local orders of
government with a view to overcoming regional and local discontent with central policies. This view is
the driving force behind the current interest in principles of federalism in unitary countries such as Sri
Lanka and Britain and in relatively newer federations such as Brazil and India and emerging federations
such as Iraq, Spain, and South Africa. Federalism emerged as an important instrument of nation/state building after the collapse
of European colonial empires in the immediate post World War II period (Watts 1996). In this respect, many post-colonial multi-ethnic
countries of Asia and Africa adopted federalism. Even
if several of these federations failed in their infancy, the role of
federalism in balancing the competing and perhaps conflicting demands for autonomy and unity in such
countries as India, Malaysia and Nigeria could not be doubted (Rothchild 1966). Since the end of the Cold War,
federalism once again emerged into the spotlight because of two contradictory developments. First, the disintegration of the socialist
federations of the USSR, Yugoslavia and Czechoslovakia refreshed doubts about stability and durability of multiethnic federations. The
continuing standoff in Canada over the question of Quebec‟s independence and the frequent political
stalemates that characterise federal Belgium strengthen uneasiness about the stability of multi-ethnic
federations. Second, in spite of these problems, politicians, used to reconstitute multiethnic countries through federalism after the
collapse of authoritarian regimes and centralist nation-building projects. For instance, international
powers imposed federalism
to reconstitute Bosnia-Herzegovina after a bitter war and genocide that accompanied the disintegration
of Yugoslavia. Russia adopted federalism to maintain what is left of the Soviet Union. Ethiopia adopted ethnic federalism in 1991 after the
end of military dictatorship. Recently, the American led international forces caused the reconstitution Iraq as an
ethnic federation following their invasion and occupation of the country in 2003. There are also calls for
a federal arrangement for such countries as Sri Lanka and Somalia that were torn apart by decades of
bitter conflicts. There is, therefore, a growing interest in the use of federalism as a way of managing ethnically diverse countries. In
ethnically divided countries, the hope is that political recognition of cultural and ethnic pluralism through federalism reduces ethnic tensions
and conflicts. That is why federalism has been presented as a compromise between ethnicnationalism, which like nationalism in its classical
form advocates congruence between nations and states (Gellner 1983: 1; Hobswam 1990: 9), and assimilationist centralization by dominant
ethnic groups in multiethnic countries.
US domestic federalism modeled
London, 2k (Herbert, President of the Hudson Institute, London, President of the Hudson Institute and
Professor Emeritus at NYU “The Enemy Within” April 1st,
Fourth, 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, subsidiarity, rule of
law, and property rights—the United States stands alone. It is the model. 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. Fifth and last, the rest of the world looks to the United States for answers. Very recently,
an American deputy secretary of state said, “Everyone’s crisis is America’s crisis.” Why? Because the
world looks to the United States as its model. As a consequence, there is no question that the United
States will maintain its extraordinary leadership.
US serves as model for other countries
FAS 20, 03-07-2020, "," No Publication,
The traditional U.S. role in the world since the end of World War II is generally described, first and
foremost, as one of global leadership, meaning that the United States tends to be the first or most
important country for identifying or framing international issues, taking actions to address those issues,
setting an example for other countries to follow, organizing and implementing multilateral efforts to
address international issues, and enforcing international rules and norms. Observers over the years have
referred to U.S. global leadership using various terms, some of which reflect varying degrees of approval
or disapproval of this aspect of the U.S. role. Examples of such terms (other than global leader itself)
include leader of the free world, superpower, indispensable power, system administrator, hyperpower,
world policeman, or world hegemon. The U.S. role of global leadership has resulted in extensive U.S.
involvement in international affairs, and this, too, has been described with various phrases. The United
States has been described as pursuing an internationalist foreign policy; a foreign policy of global
engagement or deep engagement; a foreign policy that provides global public goods; a foreign policy of
liberal order building, liberal internationalism, or liberal hegemony; an interventionist foreign policy; or
a foreign policy of seeking primacy or world hegemony.
Yes Spillover
Even small Links snowball – Sebelius decision proves the fed is opportunistic
Buckley 15
J.D. 2014, University of Virginia School of Law; B.A. 2009, University of Virginia Sarah Buckley, Clean Air
Post-Healthcare: The Federalism Limits of the Spending Power and the Future of Environmental
Regulation, MAY 2015VOLUME 101ISSUE 3, 101 Va. L. Rev. 807 (2015)
Some may dispute this characterization of Sebelius’s effects, on the grounds that it either will not undermine
cooperative federalism to this extent or that it should. Some scholars have said that the term “cooperative federalism” no longer
accurately captures the power dynamics of many of the programs bearing that label. As affirmative federal power has grown,
the baseline for what the federal government can demand from states in a “cooperative” arrangement has grown
with it.218 The growing number of demands on state implementation systems under the CAA from the 1970 CAA to the 1990 Amendments is
a case in point. A minority report out of the Senate Committee on Environment & Public Works blasted EPA for “diminishing the role of the
states” in the cooperative administration of the CAA.219 “The federal will to cooperate has declined under coercive federalism such that,
without some constitutional revision, state and local governments may not possess much leverage to compel cooperation.”220 Thus, perhaps
giving states some extra leverage is necessary to balance out the growing tide of federal power. Professor
Heather Gerken praised Chief Justice Roberts’s opinion for bolstering states’ power in cooperative governing,
“ensur[ing] that the principal [the federal government] cannot pull the rug out from under the agent [state
governments], even when the agent rebels.”221 Gerken views states’ participation as dissidents in cooperative federalism schemes as a
valuable role for policy and for federalism. By
limiting the extent to which Congress can change the terms of a
cooperative arrangement, Sebelius thus gave states a stronger negotiating position.
State action serves as a bulwark against Federal preemption – the plan reverse that
Kaufman 04/2020
Emma, Assistant Professor of Law, New York University School of Law. “THE PRISONER TRADE”,
The 1920s was also a decade of increasing optimism about regional administration of American laws. Across domains from
transportation and waste disposal to education and criminal justice, government officials touted the benefits of
regional governance, specifically interstate compacts.54 Compacts, these officials argued, could address the policy concerns wrought by
increased mobility without sacrificing cultural variation and local control.55 For opponents of federal law enforcement and skeptics
of the fledgling administrative state, regional agreements served as a means to “stave off federal intervention.”
Incursions on federalism spillover.
Roberts ’15 – Patrick S. Roberts Patrick S. Roberts is an Associate Professor at the Center for Public Administration and Policy (CPAP) in
the School of Public and International Affairs at Virginia Polytechnic Institute and State University. "The Centralization Paradox," American
Interest, 6-10-2015, ableism-edited
The fact that Derthick was not famous outside her professional circle probably says something about broader trends in American society and
politics. Derthick was for many years one the ablest expositors of the Anti-Federalist tradition in American political thought, a tradition that
lives on in the form of resistance to the overweening power of the presidency and the creeping centralization of government authority in
Washington. Her work shows why federalism
remains part of the core of American identity and the bedrock of
the Constitution’s commitment to self-government. It also shows why the distortion of the balance within
American federalism lies at the root of the political distemper we have experienced in recent times. The
matter so far sounds simpler than it is. Derthick, who was a protégé of Edward Banfield and a colleague and friend of James Q. Wilson, was no
simple thinker. Many observers have argued that what’s wrong with the U.S. political system is that it has too weak an Executive Branch
relative to the Legislative and Judicial Branches. From Samuel Huntington to Francis Fukuyama, the argument has been that we are a “Tudor”
polity heavy with “parties and courts”, that Federal and state bureaucracies are hidebound and slow because, unlike most European and other
democracies, they are encumbered by mounds of pointillist but often pointless and inconsistent directives from lawmakers and judges. The
more nuanced question, then, is this: Can the American political system be simultaneously overbalanced toward the central, Federal
government and yet still suffer from a relatively weak Executive? Martha Derthick understood perhaps better than anyone that it could. AntiFederalists such as Patrick Henry and George Mason were formally those who opposed the ratification of the Constitution and a strong central
government. They were dismayed at how much power some framers of the Constitution wanted to take away from the states. More broadly,
they worried that the complexity of the new government, and particularly the separation of powers, would obscure the responsibilities of
politicians to their constituents and their lines of accountability to the public at large.1 In other words, in the original tension, as understood by
the Founders, between a republican form of government and a democratic form, the Anti-Federalists leaned somewhat optimistically toward
the latter. Martha Derthick never referred to herself as an Anti-Federalist. Like most people today, she quoted the famous Federalists such as
James Madison far more often than she cited the Anti-Federalists.2 In some sense, Americans are all Federalists now, at least in so far as we are
all members of one nation governed under the Constitution (a post-Civil War amended Constitution at that). If Anti-Federalism is merely a
collection of historically specific and partisan ideas then it is a museum piece, an artifact in the history of ideas. If, however, Anti-Federalism
represents an orientation toward power that favors the local and is suspicious when authority is concentrated and concealed, then it is part of a
debate in which we are still engaged. Elvin Lim has aptly described the ongoing debate between the inheritors of the Federalist and AntiFederalist traditions as a “Lover’s Quarrel” that traverses political parties and ideologies throughout American history.3 Derthick did not want
to return to the Articles of Confederation, but she did favor the parts of the Constitution that protected the sovereignty of the states—the
foundational crucibles of self-government in a large, extended republic. She used her knowledge of the founding period to shed light on how far
America had drifted from its original constitutional design, particularly through the erosion of local deliberation by commandeering profiteers
masquerading as advocates of rational design and the public interest. Her position should not be confused with states’ rights arguments. Like
Madison, she was critical of state legislatures as fonts of political demagogy, but like the Anti-Federalists she worried that the same forces could
infect national politics. Her work highlights one of America’s central contributions to the world: how decentralized
federalism can
preserve liberty in a large republic, and how each citizen can maintain the delicate balance of being a member both of a state and of a
larger nation. American federalism offers hope to nations [devastated] crippled by regional differences and
overbearing central governments: the benefits of a small republic through membership in states and the
benefits of a large republic through membership in one nation. In recent decades, however, federalism’s
benefits—civic deliberation and laboratories of democracy—have been themselves [devastated] crippled
by an increasingly national, centralized, and presidentialized political culture. The principal lesson from Derthick’s
work is that policy interventions invariably have unintended consequences. At their best, policymakers anticipate
consequences and plan for contingencies. At their worst, they ignore or even conceal the self-serving consequences of their proposals. For
example, the end of smoking in airplanes, bars, and restaurants in the United States is considered a triumph for public health. Derthick’s Up in
Smoke reminds us of the knavish tricks that led to this triumph. Crusading state Attorneys General and trial lawyers joined forces to extract
riches from the 1998 Master Settlement Agreement (MSA) that sharply increased taxes on cigarette sales and created a powerful constituency
that benefits from the tobacco industry.4 State governments now have a substantial interest in seeing revenue from smoking continue. The
tobacco settlement shows the prescience of the Anti-Federalist concern that judicial decrees replace democratic deliberation when politicians
opt for expedient solutions. (Here is a stellar example from Derthick’s analysis of how a fear of excessive centralization and an appreciation of a
weak executive can coexist happily.) Prior to the ratification of the Constitution, one Anti-Federalist, writing under the name of Brutus, warned
that judges would not limit themselves to the plain meaning of laws and the Constitution, but would reconstruct words according to their
“spirit.” Interpreting laws according their spirit and applying them to new contexts may seem perfectly reasonable. The Founders never
envisioned the internet, or drone spy cameras, for instance, and judges must apply law to changing contexts. But Brutus and the AntiFederalists worried that judges and politicians—the Tudor “courts and parties”, again—would take advantage of laws and rules to satisfy their
own narrow interests in ways not intended by the public mandate behind the original law or the Constitution. They were indeed prescient. At
the founding, states and the national government each had separate spheres. The national government
pursued foreign policy, and the states formulated education, health, and welfare policies, among others. In modern
federalism, the spheres overlap. States and the national government share responsibilities for a range of
activities. Politicians at all levels of government propose policies to meet public concerns, and they attempt to shift costs to other levels of
government or other institutions. In the case of the tobacco settlement, state Attorneys General shifted the cost of public services to addicted
smokers, who paid increased taxes on tobacco products. Like the Anti-Federalists, Derthick’s sympathies lie with local communities and,
through them, with the principle of subsidiarity. But to principle she joined the practical: Local governments, being at the bottom of the
political food chain, have less opportunity to outsource the financing and implementation of their goals than do states or the Federal
government. Alas, over time, local governments
have lost significant control over setting their own priorities.5
With the capillaries of the body politic thus impaired, the entire body has suffered. To show this ill health,
Derthick’s first book unpacked the development of the usually uninspiring topic of federal grants-in-aid with her characteristic verve and
humor.6 She described early public assistance grants to states as entreaties to change their behavior. As befits her Anti-Federalist sympathies
for subnational governments, she characterized intergovernmental relations as a diplomatic rather than a hierarchical process: Federal
enforcement is a diplomatic process. It is as if the terms of a treaty, an agreement of mutual interest to the two governmental parties, were
more or less continuously being negotiated. In these negotiations, numerous diplomatic forms and maneuvers are observed, especially by the
federal negotiators. Her
vision of intergovernmental relations was one of polite discussion, continuous
negotiation and accommodation, and threats held in reserve. The Federal ability to withhold funds “is in
fact one of the major resources of federal influence—but it is of use mainly as a potential resource. It lies
at the foundation, as a weapon in reserve, of all federal enforcement activity, and the nature of that activity is such as to make the best possible
use of it.” In Derthick’s view, what
began as a reasonable adaptation of federalism to a new era of national
government expansion has become, in its worst iterations, a club that the Federal government can use
to beat the states into submission without opportunity for public involvement. For example, Congress and the
President went too far in demanding state compliance with education reforms in the initial get-tough period of No Child Left Behind. At the
same time, she observed, the Federal government’s authority to selectively enforce laws by granting waivers poses problems for the rule of
law. Executive waivers have an uncontroversial origin as a tool to adapt Federal government involvement to differences among states.7 If
waivers are used often and selectively, however, they raise questions about why a law is not applicable to all citizens, or why it is a law rather
than just a good idea. President Obama has issued more than a thousand temporary waivers exempting businesses and labor unions from
various provisions of the Affordable Care Act. The constitutional source of the President’s right to issue waivers to laws is murky at best. At
worst, the President’s unilateral suspension of the law threatens the rule of law itself. Government works
best, in Derthick’s
view, when it operates through deliberation at the lowest possible level. Citizens can more easily
observe government operations at the smaller scale, look their chosen representatives in the eye, and
together decide what their communities should do through discussion and debate. Where local action is not
possible or desirable, national level programs should be given clear goals, and, above all, Executive Branch agencies should hit the sweet spot
between too much autonomy and too little. Thus, in Agency Under Stress, Derthick shows how the Social Security Administration suffered from
a lack of innovation when it was the domain of experts alone.8 So yes, bureaucrats can be henpecked by “courts and parties”, to be sure, but
left alone they can be highly inertial, too. This led Derthick to the conclusion that experts should be on tap, not on top. In other cases,
politicians, judges, and advocacy lobbies henpeck relentlessly, hobbling administrative agencies so severely that they cannot see straight or
work effectively. For example, Derthick pointed out the absurdity of bureaucracy-ensconced school reformers who purport to improve student
achievement by punishing the teacher workforce.9 Honest observers can differ on whether the generic problem with bureaucracy is too much
autonomy or too little, but the problem isn’t really amenable to generic determination. Each situation is different and things change; Derthick
understood that. Nevertheless, she believed that the lack of transparency in state and national policy should be cause for concern for anyone
who holds democracy to be the best form of government because it offers citizens informed consent. If democratic decision-making processes
are transparent, the rules of the game are clear, and citizens have an opportunity to debate and discuss the wisest course of action, then,
rational apathy given its due, democracy can provide for informed consent. If the authors of policy hide behind the scenes, or bury their designs
in obscure “tax credit” amendments, the authority for government action becomes unclear, special interests have a field day, and citizens are
pushed away from meaningful participation. Then the political process fails at offering the meaningful informed consent that gives the political
system legitimacy. The Anti-Federalists worried that the Constitution would oppress people from two directions. They suspected that the
legislature would be unable to stand up to the unchecked power of the Supreme Court, and they feared that the populist presidency would
grow in power until it overwhelmed popular rule and sober self-government. Such concerns have risen to high collective consciousness many
times in American history. The trope of the “imperial presidency” rings out from Lincoln to FDR to Richard Nixon. Several contemporary
observers of the American political scene have predicted that, if the United States government were ever to fall, a despotic presidency would
be to blame. Derthick did not frame her criticism of American politics in such apocalyptic terms, but she did worry that the
rise of a
populist presidency could obscure how policy is actually made and put too great a distance between
citizens and the policy process. A populist American President appears on television and video daily as a sponsor of grandiose policy
proposals: free community college education; a mission to Mars. The populist-style President himself is a product of the cauldron of election
contests that demand ambitious proposals but offer hazy details on implementation or any reasonable metric as to how such proposals might
be evaluated. This
sort of President nowadays invariably gets absorbed into an electronic celebrity culture
saturated by advertising language. Nowhere is this form of political theater more evident than in recent education policy, where
proposals for reform—first charter schools, then school choice and vouchers, then smaller class sizes—appear as “flavors of the month”
without enough time having passed to evaluate their effects. Meanwhile, laws emerge behind the scenes from issue networks rather than the
minds of lawmakers. The presidentialization of everything has
spread beyond health, welfare, and education to other
domains, including disaster management.10 At the founding, disaster management was a responsibility for states and localities, if for the
government at all. Today, the President is the responder-in-chief to any major disaster, from floods to hurricanes to oil spills.11 Disasters make
for good news stories, and responding to them is one way in which the President and the Federal government can palpably affect citizens’ lives
and deliver benefits. The President cannot issue “waivers” in disaster management, but he does have sufficient discretion to issue
“declarations” that trigger Federal resources to flow and pre-planned protocols to spring into action.12 The number of disaster declarations has
increased over time. While “no dough for snow” was once a rallying cry at the Federal Emergency Management Agency, it is now routine for
the President to declare snow disasters. In emergency management, as in the tobacco settlement, politicians sometimes derive benefits from a
social ill. Disaster losses offer politicians an opportunity to come to the rescue. It is too perverse to say that politicians hope for disaster losses,
but they do have more incentives to respond ably than to take steps to prevent disaster losses in the first place by, for example, limiting
development in flood plains and other risky locations. Questions about how to manage sustainable development, however, depend on context
and buy-in rather than on rational planning.13 These decisions are best left to communities, which can draw on expert guidance to come to
their own decisions about implementation. Making
the presidency the locus of policymaking in areas previously
reserved for the states, such as education or welfare, risks closing off avenues for participation and for creative
implementation in different regions. Critics of the contemporary Anti-Federalist approach might point out that state legislatures,
elected judges, and city councils are even more likely to be captured by special interests than Presidents.14 In reply, a defender of local and
state prerogatives would point out that centralization
is at best a temporary fix to special-interest control, and
often no fix at all. Derthick’s study of the Federal and federalized tobacco settlement shows how mercenary state officials engaged in a
“race to the trough” of tobacco settlements. Today’s term “special interests” conveys just what the Anti-Federalists were worried about. The
best way to defeat narrow, particularistic interests is to reinvigorate participatory processes, electoral
contests, and opportunities for interaction with the bureaucracy that implements laws and policy. This
doesn’t mean that more democracy can always solve the problems of democracy; sometimes opening the policy decision process just makes it
easier for well-organized groups to employ the logic of collective action to accrue even more political leverage.15 But it does mean that
shutting the citizenry out of the process will ultimately undermine the legitimacy of the government as a whole. Derthick’s The Politics of
Deregulation offered a salutary example of how the public policy process can serve the public interest rather than narrow, particularistic
interests. She explains in that book why the time was ripe for a consensus among economists to lead to deregulation of the trucking, banking,
and airline industries in the late 1970s.16 Economists agree about many topics, but only occasionally do their ideas lead to policy change in the
general interest.17 The rise of expertise in government, new communication technologies, and, most importantly, arguments that served both
the Left and the Right propelled deregulation from the realm of expert ideas to policy action. Though often associated with conservatives,
deregulation proceeded apace during the presidency of Jimmy Carter. Derthick’s portrayal of how deregulation came about defied the
stereotype of government agencies as slow to change. She showed how ideas can persuade bureaucrats to join coalitions for reform. Here, as
in other cases, she was at pains to demonstrate how settled truths about political behavior are often not true at all. Reading through Derthick’s
oeuvre shows the virtues of an orientation toward political power that leans more Anti-Federalist than Federalist. She recognized the
advantages of nationhood but observed that democracy is best practiced when power is local, transparent, and, as much as is possible, open to
all. Nevertheless, she understood well the dark side of political subsidiarity. She drew attention to the fact that the “tenacity and violence of
southern resistance to changes in race relations gave federalism a very bad name. . . . When a system of decentralized power was seen to
produce flagrant violations of fairness (now literally seen on national television), the system itself was discredited.”18 Derthick came of age
during the civil rights struggle, when claims for states’ rights fell under suspicion of being covers for racism and the preservation of what was a
de facto single-party system. She completed her Ph.D. under the direction of V.O. Key, a scholar of American elections at Harvard, but Edward
Banfield employed her to assist in compiling reports on the politics of cities.19 Banfield soon became embroiled in the racial politics of the
1960s by writing a book about why the tall and foreboding, racially segregated Chicago housing projects were doomed to make the problems
they intended to solve worse. This view is now conventional wisdom, thanks in no small part to the pioneering anti-social engineering work of
The Public Interest, which twice hosted Derthick essays. But at the time it brought down a virulent, early form of political correctness on
Banfield’s head that followed him from Harvard to Penn. Perhaps this perspective on university life is what helped Derthick decide to spend
much of her career at the Brookings Institution, where she served as director of its Governance Studies Program from 1978 to 1983. She
ultimately returned to university life as a chaired professor at the University of Virginia and continued to write articles and books and take an
interest in students even after her formal retirement in 1999. Derthick described herself as a journalist by temperament and method, a
disposition perhaps inherited from her father, who was a reporter and editor for the Cleveland Plain Dealer. She had a deep respect for the
facts, an early instinct she never lost. Her modesty, however, understates the depth of understanding found in her method. To begin with, she
read everything, from scholarship to government reports. Then she spoke to people involved in whatever she was studying. She folded all that
she learned into beautiful prose. She was not afraid to master the quotidian—what policymakers do and how they define their tasks—and not
only the ideas that presumably motivate them. Derthick was concerned with what mattered most: meaningful participation in government;
citizenship in the fullest sense of the term; effective public services; and structuring government so that markets and regulation each have their
place.20 She respected the careful work of economists and policy analysts who evaluated the actual effects of policy interventions. But she also
knew, along with sociologist Peter Rossi, that the better the test, the closer the effects get to zero.21 Because of her relentless pragmatism,
diligence in pursuing detail without regard to the procrustean influence of theory, and her lucid writing style, the American Political Science
Association gave her name to its award for the “best book that made a lasting contribution to the study of federalism.” In 2006, the proud
recipient of the Martha Derthick Award was none other than Derthick herself—though, as she reminded people, she was not on the nominating
committee.22 While her intellectual identity formed during the social upheavals of the 1960s, unlike many of her contemporaries she did not
believe the solution to social problems lay in a unitary form of government, which she saw as a nod toward social authoritarianism. Instead, she
believed, solutions could only be found in the push and pull of mutual accommodation among the Federal government, states, and localities,
and in opportunities for meaningful participation at all levels. Local communities are where people decide what they want to do and who they
want to be. They are the only avenue most Americans have for deliberation—for meeting with one another to discuss their collective goals and
plans. Pushing
more policymaking down from the Federal heights to states and localities will not satisfy
everyone, nor should it. It does not allay concerns about states that enshrine discrimination in law, or
states that give short shift to their most vulnerable citizens, or states so weak that they fail without Federal government intervention, as
appeared to happen during Hurricane Katrina in Louisiana. The modern-day Anti-Federalist looks much better, however, when considering how
open a system of state sovereignty and local control is to many different kinds of interests. State sovereignty leads to a greater number of
genuinely empowered elected and appointed officeholders, and to a wider variety of policy experiments. In the nation as a whole, state
sovereignty can allow the parts of the United States that want to be “red” to be “red” and the parts that want to be “blue” to be “blue”
simultaneously. If government’s ultimate purpose is to serve a diverse and ever-changing society, there is a strong case for preserving
Derthick’s modern Anti-Federalist legacy. If more of us understood that, perhaps we would not have had to wait for an obituary to recognize a
leading light in that vanguard.
Turns Case – Environment
Federalism is key to solve warming – solves global spillover by leveling the playing
Ibbitson 2017 (John, M.A. in journalism, senior fellow at the Centre for International Governance
Innovation, 6.2.17, The Globe and Mail, “Federalism might be our best hope in fighting climate change,”, Accessed: 6.26.17)VW
Federal systems of government are splendid things: robust, flexible, able to accommodate conflicting local
values. When it comes to the fight against global warming, federalism is the ace up Canada’s sleeve, while south of
the border it’s America’s last, best hope. Conservative prime minister Stephen Harper was right to withdraw Canada from the Kyoto
Protocol on climate change in 2011. The Chrétien government had made promises at Kyoto that no Canadian government could keep without
wrecking the economy. The expanding oil sands in Alberta had become a major driver of growth. The U.S. Congress was blocking president
Barack Obama’s efforts to fight global warming. Any
Canadian tax on carbon without an equivalent American action
would simply kill Canadian jobs, without lowering the planet’s temperature even a smidgeon, Mr. Harper argued, and that
argument made sense. But, although Ottawa wasn’t ready to fight climate change, some provincial
governments thought differently. Quebec had a natural advantage, because most of its electricity is generated by hydro. The
Liberal government in Ontario wanted to replace lost manufacturing jobs in traditional industries by developing green-energy technology.
British Columbia premier Gordon Campbell believed that a carbon tax was the most business-friendly way to lower emissions. When Rachel
Notley’s NDP came to power in Alberta, committed to bringing that province in line with others in the fight against climate change, Mr. Harper
shrugged. Ottawa’s job, he believed, was to get a pipeline to tidewater somehow, somewhere. If the provinces wanted to go all green, they
were welcome to knock themselves out. But then Mr. Harper was replaced by Justin Trudeau, and Mr. Obama by Donald Trump. The White
House is now even more of a climate-change-denier than the House of Representatives or Senate, while the Liberal government is as
enthusiastic about fighting climate change as any province. In Canada’s case, federalism worked to provide in advance what Ottawa now seeks:
a national (if piecemeal) strategy to reduce carbon emissions through provincial cap-and-trade or carbon tax schemes, with only
Saskatchewan’s Brad Wall seriously offside. In
America’s case, federalism and the entrepreneurial energy of the
private sector have combined to limit the damage inflicted by Washington. About 30 states have
green-energy strategies in place. Elon Musk resigned Thursday from two of Mr. Trump’s advisory councils in protest over the
President’s decision to withdraw the United States from the Paris accord on climate change. Of course he resigned: His Tesla Model 3 electric
car will soon hit the streets in an increasingly competitive electric vehicle market, going head-to-head with, among other competitors, the
Chevy Bolt and the Volkswagen eGolf. The battle in North America against global warming will be most successfully fought in dealer show
rooms. Mr. Trump, with his Luddite refusal to recognize the transformation under way in his own country’s economy, is making that battle
harder to win, which is why dozens
of mayors and CEOs vowed to continue efforts to reduce carbon dioxide
emissions in the wake of the President’s announcement.
Federalism is key to saving the environment.
David Konisky and Neal Woods, environmental and public affairs professors, ‘18 (David
Konisky and Neal Woods, both are environmental and public affairs professors in their respective
universities(university of Indiana and university of Kentucky), "Environmental Federalism and the Trump
Presidency: A Preliminary Assessment", 4/20/18,, DOA: 9/26/20)//MW
First, and most obviously, there has been significant policy retrenchment. To this point, the
Trump Administration has not
expressed any intent to pursue new environmental protection initiatives. EPA Administrator Pruitt has instead
emphasized on his “Back to Basics” agenda, which emphasizes a narrow focus on implementing existing programs, such as Superfund site
remediation, and helping states and communities achieve current national ambient air pollution standards. In marked contrast to this paucity of
new efforts, the
Trump Administration is devoting considerable energy to deregulation of existing
protections. We are still at the early stages of regulatory rollbacks of policies such as the EPA’s Clean Power Plan and Waters of the United
States rule and the BLM’s methane standards for the oil and gas industry. Because these regulations were finalized during the Obama
Administration, doing away with them and/or replacing them with alternatives requires a new rulemaking process. Even if the EPA is able to
move expeditiously, the ultimate fate of its actions will not be known until after they undergo certain legal scrutiny by the federal courts.
Additional efforts to rollback federal regulations are certain to follow, though there remains considerable uncertainty as to how reform efforts
such as the two-for-one rule and regulatory budgets will be employed. Second, the
role of states has become more
prominent. As discussed earlier, the notion of cooperative federalism being promoted by EPA Administrator
calls for delegating more authority to state governments to manage environmental issues. What this will
mean in practice remains to be seen, but historical experience here should be informative. Absent an assertive federal government, both in
setting policy goals and performing oversight, states will have additional discretion to decide how they want to pursue environmental
protection. In areas of policy implementation where states already have considerable leeway, variation in state performance is welldocumented (Konisky and Woods 2018). More broadly, studies in the comparative state environmental policy literature have shown that states
devote varying degrees of effort to environmental protection, depending on their political, economic, and fiscal contexts (Konisky and Woods
2012b; Ringquist 1993). Existing
differences in state environmental priorities and policies are likely to be
exacerbated if the federal government retreats from pursuing national standards, providing robust oversight,
and providing grant funding for state environmental agencies. Some states are likely to compensate for less federal
government activity. The state of California, for example, has long addressed its environmental problems by pursuing policies more
stringent than the federal government, most notably to limit air emissions for motor vehicles. Many states have followed suit, choosing to
adopt California standards rather than the lower federal standards. Just as importantly, however, many other states are likely to choose not to
compensate, using the strong signal from the federal government to begin retrenchment of their own activities. We have already begun to see
this pattern developing. For example, in response to President Trump’s decision to withdraw the United States from the Paris Agreement on
climate change, elected officials in some states and cities responded by announcing that they would move ahead with their own climate change
mitigation initiatives (Halper 2017). However, elected officials in other states celebrated President Trump’s decision (Domonoske and Dwyer
2017), as many had encouraged exactly this decision. Federal policy retrenchment, coupled with a varied state response, is
likely to
change the nature of environmental federalism in the short term; but will the recalibration of the
federal-state relationship that embodies the Trump Administration’s approach to environmental policy have
lasting effects? The answer to this question is difficult to project, since it depends a great deal on how long President Trump is in office,
how states respond, and the environmental policy preferences of his successors. It is important to emphasize, however, that policy goals
achieved through the tools of the administrative presidency are less durable than legislation. Subsequent
presidents with
different policy preferences could use administrative tools to reverse many of the Trump Administration’s policies—
that is, use the same set of tools that the Administration is using to undo Obama-era policies.
Turns Case – Climate Change
Federalism solves warming.
Buzbee 18, (Professor of Law at Georgetown, FEDERALISM HEDGING, ENTRENCHMENT, AND THE
CLIMATE CHALLENGE, Wisconsin Law Review, January 19th,
Advocating a new body of regulation with the explicit concession of likely error and risks of regulatory
derailment may seem self-defeating. Nevertheless, effective regulatory design, like effective investment strategies,
must be designed for success yet anticipate unfavorable developments and error risks.1 And in the United
States, due to our constitutional structures and linked political norms, any major regulatory choice must
include decisions about how to utilize the regulatory roles demarked by federalism. What roles should be allocated to or preserved for federal, state, and
local actors, or perhaps a combination of them all? Climate change policy choices remain the subject of partisan and rancorous contestation, including disputes over
the right federalism choice. By leavening idealized policy solutions with attention to political and legal discord and regulation-market linkages, this Article
illuminates the effects and dynamics of federalism hedging, a largely overlooked value of federalism structures retaining concurrent and often interacting federal
and state roles. Federalism
hedging refers to the regulatory choice to retain overlapping, interacting, and often intertwined
federal and state roles even in a setting where the apparently ideal regulatory regime would rely on exclusive federal regulation that would preempt
state roles. This Article argues that both federalism discourse and climate change policy debates have failed to analyze adequately how choices about federal and
state roles can serve to hedge and even reduce risks of regulatory reversal and implementation failure. This Article’s analysis of federalism hedging operates at
three levels. First, it introduces federalism hedging as a theory, explaining the attributes and dynamics of federalism hedging and situating it within recent scholarly
and policy debates about the values and functioning of federalism. Second, it then illuminates federalism hedging with analysis of the regulatory challenges posed
by climate change and the history of climate and clean energy progress and contestation. And, third, drawing on this theoretical and historical analysis, the Article
makes a normative and prescriptive claim that retaining
latitude for state and federal overlap can provide an array of benefits and,
especially, reduce risks of disruptive policy reversals that could, in turn, undercut linked markets and regulatory
progress. Such a hedging role is of especial importance where a body of regulation provides a crucial
underpinning of a market and that market is itself essential to regulatory success. Retaining latitude for
both federal and state roles also can serve in a valuable precautionary role conducive both to innovation
and pragmatic adjustment in regulatory settings characterized by rapid change in business models and
technology.2 This Article, like much federalism discourse, is actually not about what is constitutionally required. Instead, the Article builds on an increasingly
robust body of scholarship analyzing how federal and state roles recognized by the Constitution should be utilized to further particular regulatory policy goals or
political ends.3 Although federalism scholars often mention the benefits of federalism “redundancy” in risk regulation and benefits of dynamic interjurisdictional
learning, little of this pro-overlap and interaction federalism literature devotes attention to the regulation-business link, regulatory risks of error, implementation
failures, and political reversal risks.4 Another strain of federalism scholarship documents and analyzes the logic and legality of state and local climate and clean
energy initiatives undertaken without a broader national agreement. Before comprehensive federal climate legislative proposals went down to defeat in 2009 and
2010, they spurred an important but truncated debate over what roles should be retained by states if the nation enacted a climate-focused federal cap-and-trade
bill.6 Prominent scholars and stakeholders argued that because climate regulation addresses a global ill and logically must embrace market-based regulatory tools—
most likely cap-and-trade-based regulation or use of pollution taxes—regulation should be structured to draw on the largest markets possible in order to facilitate
the business search for costeffective means to reduce emissions.7 They often championed preemption of state climate roles. Final (but unsuccessful) bills, however,
rejected such calls.8 And a recent 2017 proposal by leading Republican conservatives advocated enactment of a carbon tax regime, but coupled that proposal with a
call for the elimination of other similarly targeted federal or state laws.9 In the absence of a tailored federal climate law, states nonetheless have made
climate and clean energy regulatory progress and, as litigants, prompted a series of federal regulatory
actions to address climate risks under the Clean Air Act and federal energy laws. And those federal regulatory interventions, especially the
Clean Power Plan (CPP) targeting existing power plants’ greenhouse gas (GHG) emissions, were shaped by state experiences, sought to
harness state regulatory capacity and creativity, and preserved state authority to do more.10 The role of
federalism overlap and interaction as a hedge, especially in the climate regulation arena, is a subject of more than just theoretical interest. As this Article goes to
press, the new administration of President Donald Trump has overtly declared plans to revisit and roll back climate progress.11 The extent to which this new
administration can do so is substantially shaped by federal, state and business climate and clean energy progress, and past statutory federalism choices. This Article
agrees that the ideal answer to a global challenge like climate change would be regulation at the largest scale possible, with minimized regulatory overlap.
Nonetheless, mandating such authority allocations would be the wrong answer. The effects and political economic dynamics of federalism hedging analyzed in this
Article reveal why. The
value of federalism hedging links to likely regulatory implementation failures, regulatory
reversal risks, and risks of unsettling linked markets. Responses to regulation will inevitably be ongoing
and dynamic; whatever regulatory instruments and design are chosen will shape and change the political
and market terrain, and vice versa.12 All policy reforms are “at risk,” facing post-enactment threats and a
dynamic environment.13 The challenges of climate change make such regulatory derailment risks
especially likely to be persistent threats. Federal harnessing of state roles, or at least preservation of the possibility of state regulation
alongside federal regulation,14 can be part of an effective and durable regulatory design due to three effects linked to federalism hedging: heightened stakeholder
incentives to commit to the federal regime; policy diffusion dynamics; and gradual entrenchment of supportive coalitions through a process of path dependence
dynamics that result in “increasing returns” and “costs of exit.”15 Relatedly, tested
regulatory and market accomplishments create a
body of experience and record that can provide a bulwark against ungrounded claims of regulatory
hardship, change coalitional political dynamics, and provide a fact-based foundation for future
regulation.16 For market actors supplying goods and services to meet a regulatory goal, a web of
regulation resulting from multiple regulators, or at least potential regulators, is far more resilient and
resistant to wholesale derailment than would be complete dependence on a single federal regulatory scheme.
Retaining that state authority, even if just a regulatory hedging strategy, fosters overall stability, creates
room for regulatory innovation, and thereby creates conditions conducive to private investment to meet
regulatory goals. Legal durability is always important, especially where the regulatory infrastructure is a
critical underpinning of linked investments and markets. This is especially true in the setting of climate
regulation.17 Always underlying climate politics and linked markets is fear of all governments, citizens, and
market actors that their jurisdiction will act, but others will not. Such inaction or regulatory reversals of
others can disadvantage the climate-regulating jurisdiction, lay waste to investors in related businesses and markets,
and leave GHG levels still on the rise.18 The climate and clean energy regulatory infrastructure is already built
on laws and regulations benefitted by federalism hedging.19 Concerted federal efforts to reverse course on climate
change—a constant in all climate regulation battles and an even more certain scenario under the Trump
administration—will surely slow and might even halt federally led climate progress. The existence of federalism hedging strategies,
however, will likely reduce the scale of such reversals and also set the stage for future progress.
Federalism is key to solve climate change — utilities prove that federalism is necessary
for flexible regulations.
Boyd & Carlson ’16 — Professor of Environmental Law (William; Professor and John H. Schultz Energy Law
Fellow at the University of Colorado Law School; Ann; a Professor of Environmental Law at UCLA and Faculty Co-Director, Emmett Institute on
Climate Change and the Environment; 2016; UCLA Law Review, Volume 63, “Accidents of Federalism: Ratemaking and Policy Innovation in
Public Utility Law,”
Our attention to the innovation that is occurring and the interaction of state
and federal policy aligns us with an
emerging school of federalism theory that suggests that states can be deployed not just for local ends but also to
promote national policies and values.348 The emergence and persistence of the three models of electricity
regulation combined with federal subsidies and nudges are helping to promote low- and zero-carbon electricity at a time
when the U.S. government is working to meet ambitious goals to cut carbon emissions. And they are
producing innovation by taking advantage of precisely those traditional values federalism is meant to
promote: diversity and experimentation. Yet they are doing so at least in part because the federal government has
allowed the states to continue operating as important players in the national system of electricity regulation.349 Our description
thus also provides another example of the dynamic interaction between and among levels of government, one that defies standard
explanations of our federal system and that recognizes the important role the federal government often plays in creating and supporting
policies that emerge from systems of federalism.350 CONCLUSION When Congress passed Part II of the FPA in 1935, it sought to
complement rather than replace existing state authority to regulate the electricity sector. In doing so, it recognized the value and importance of
state policy experimentation and the traditional role of state PUCs in regulating electricity rates. Today, despite
significant change in
the sector and in a moment of great technological and regulatory innovation, we are still working with the basic
jurisdictional split established in 1935. Rather than modify this framework, and notwithstanding multiple opportunities to do so,
Congress has left it largely intact, leaving states with the ability to choose whether and how to participate in
electricity restructuring. The resulting system of regulation is messy and uneven, with three major models in operation across the country. But
this three-model system, combined with specific federal policy nudges and subsidies that have worked to de-risk certain state
experiments, is also facilitating innovation across many aspects of the electricity sector. The standard, largely negative account of our
current system of electricity regulation contends that we need a statutory overhaul to bring order and efficiency to our regulatory framework
to better equip it to deal with new challenges. Perhaps. But what we have sacrificed in efficiency, we may have gained in experimentation.
Although the counterfactual is impossible to assess with confidence, we have argued that the
three-model system may be
producing more (and underappreciated) policy innovation than would occur under a single, national approach.
At a minimum, we argue, the diversity inherent in the three-model system has, when combined with directed federal policy
nudges and subsidies, allowed for different experiments across different kinds of states and across different aspects
of the machine than we would expect to see under a more uniform approach. In a very real way, then, the
structure of federalism at the heart of the U.S. system of electricity regulation, and the diversity and
experimentalism it has enabled, may be promoting rather than diminishing certain national policy goals—a recognition that
animates much of the EPA’s Clean Power Plan with its embrace of state autonomy. Basic principles of public utility law and, specifically, the
practice of PUCs in designing and setting rates have been central to the innovations we describe. All of which suggests that we may finally be at
a place where we are able to catch up with and realize the value of the experimentalist impulse that was at the heart of an earlier, more
expansive concept of public utility but that has lain dormant for so long. We
need this creative force now more than ever as
we grapple with the need to transform the most complex machine ever built into something vastly
cleaner, more distributed, and more interactive. Ratemaking, and the innovation it enables, must be front and center in that effort.
Turns Case - Economy
Federalism is key to a prosperous economy.
Bruce Katz, inaugural centennial scholar, ‘12( Bruce Katz, inaugural centennial scholar for
Brookings institute, “Remaking Federalism to Remake the American Economy”, Brookings institute,
2/16/12,, DOA:9/26/20)//MW
Remaking the economy, in essence, requires a remaking of federalism so that governments at all levels
“collaborate to compete” and work closely with each other and the private and civic sectors to burnish
American competitiveness in the new global economic order. The time for remaking federalism could
not be more propitious. With Washington mired in partisan gridlock, the states and metropolitan areas
are once again playing their traditional roles as “laboratories of democracy” and centers of economic
and policy innovation. An enormous opportunity exists for the next president to mobilize these
federalist partners in a focused campaign for national economic renewal. Given global competition,
the next president should adopt a vision of collaborative federalism in which: the federal government
leads where it must and sets a robust platform for productive and innovative growth via a few
transformative investments and interventions; states and metropolitan areas innovate where they
should to design and implement bottom-up economic strategies that fully align with their distinctive
competitive assets and advantages; and a refreshed set of federalist institutions maximize results by
accelerating the replication of innovations across the federal, state and metropolitan levels.
Federalism key to economy
Katz 12 (Bruce J. Katz is an inaugural Centennial Scholar at the Brookings Institution, “Remaking
Federalism to Remake the American Economy”, 16 February 2012, CS
The 2012 presidential election will be defined and dominated by the economic challenges that persist an
incredible 33 months after the formal end of the Great Recession. At the most basic level, the U.S. needs
more jobs— 12.1 million by one estimate—to recover the jobs lost during the downturn and keep pace
with population growth and labor market dynamics. Beyond pure job growth, the U.S. needs better jobs,
to grow wages and incomes for lower- and middle-class workers and reverse the troubling decades-long
rise in inequality. To achieve these twin goals, the U.S. needs to restructure the economy from one
focused inward and characterized by excessive consumption and debt, to one globally engaged and
driven by production and innovation. It must do so while contending with a new cadre of global
competitors that aim to best the United States in the next industrial revolution and while leveraging the
distinctive assets and advantages of different parts of the country, particularly the major cities and
metropolitan areas that are the engines of national prosperity. This is the tallest of economic orders and
it is well beyond the scope of exclusive federal solutions, the traditional focus of presidential candidates
in both political parties. Rather, the next President must look beyond Washington and enlist states and
metropolitan areas as active co-partners in the restructuring of the national economy. Remaking the
economy, in essence, requires a remaking of federalism so that governments at all levels “collaborate to
compete” and work closely with each other and the private and civic sectors to burnish American
competitiveness in the new global economic order. The time for remaking federalism could not be more
propitious. With Washington mired in partisan gridlock, the states and metropolitan areas are once
again playing their traditional roles as “laboratories of democracy” and centers of economic and policy
innovation. An enormous opportunity exists for the next president to mobilize these federalist
partners in a focused campaign for national economic renewal. As the 2012 presidential election
unfolds, and the debate over the future of the American economy comes into sharper relief, it is
essential that both candidates articulate a federalist vision for economic renewal. While past federalist
eras have been defined by their means—the way that different levels of government interact—the
current economic imperative necessitates federalism that is defined by co-delivering particular ends,
specifically a new vision for the national economy….
Given global competition, the next president should adopt a vision of collaborative federalism in which:
the federal government leads where it must and sets a robust platform for productive and innovative
growth via a few transformative investments and interventions; states and metropolitan areas innovate
where they should to design and implement bottom-up economic strategies that fully align with their
distinctive competitive assets and advantages; and a refreshed set of federalist institutions maximize
results by accelerating the replication of innovations across the federal, state and metropolitan levels….
The next president could also appoint a separate Task Force on Federalism and the Economy, comprised
of government, corporate, university and civic leaders, to examine ways in which the federal
government, states and localities could collaborate on creating jobs in the near term and retooling the
economy for the long haul, perhaps even designing a Race to the Top-style competition, as described
above. Special focus would be given to collaborative efforts that further the growth of advanced
industries that are central to U.S. competitiveness. Finally, the federal government, in conjunction with
the states and localities, could create a National Laboratory on Federalism and Competitiveness. The
laboratory would have three separate missions: (a) capture and disseminate the best economy-shaping
innovations under way in states and metropolitan areas, to speed replication and improvement; (b)
capture and disseminate the best innovations under way in other nations, particularly countries where
key powers are shared among different levels of government; and (c) report periodically to the federal,
state and local governments on ways in which policies at all levels could be refined to enable or scale up
the most promising innovations. A biennial Federalist Forum could be held to debate the
recommendations, bringing together, for the first time in decades, key representatives of each level of
government and key corporate, civic and academic institutions. Federalism is not a gift that Washington
bestows on state houses and city halls. Rather, it is a special, often dormant, vehicle for galvanizing and
unleashing the talents and energies of an entrepreneurial nation. The president has an historic
opportunity to usher in a new era of pragmatic, collaborative federalism that capitalizes on the
economic power of metros and the policy creativity of state and local leaders. Remaking federalism is
the path toward an economy that is productive, sustainable and inclusive. More broadly, it can be a
vehicle for economic prosperity, fiscal solvency and political comity—if the next president is willing to
take it.
Turns Case – Democracy
Federalism is key to authentic democracy – government accountability, citizen
involvement, and checks & balances.
Diamond 4 (Larry, Professor of Political Science at Stanford, senior fellow at the Hoover Institution,
founding coeditor of the Journal of Democracy. Conference on Fiscal and Administrative
Decentralization, “Why Decentralize Power in A Democracy?” February 12 2004. CS
Third, democracy has swept throughout the world as a basic value and framework of governance over the post three decades. And
decentralization is increasingly coming to be seen as a fundamental democratic principle. It is not enough for people
simply to be able to choose their national leaders in periodic, free, and fair elections. In countries of moderate to large size, a
good democracy requires that people be able to elect their own local leaders and representatives, and that
these local governments have some real power to respond to the needs of the people. In short, decentralization is increasingly
being demanded from below, through pressure from the grassroots, and is embraced for its potential to enhance the
depth and legitimacy of democracy. How Federalism and Decentralization Enhance Democracy I have already begun to suggest, then, how
federalism and other forms of decentralization can strengthen democracy and enhance its stability. They may help to hold
the country together by giving each group some control of its own affairs. They may help to sustain the political system
by distributing power among a wider array of political parties, each of which finds that it has some tangible stake in the system. And it speaks to
the aspirations of people and communities who simply want government to be closer and more responsive to their needs. Let me continue with
the functions that decentralization serves. When
government is closer to the people, it is more likely to be held
accountable by them for its successes and failures in the provision of basic services, the maintenance of order,
and the fair resolution of local issues and disputes. Government tends to be more responsive when it is closer to the people. That is why
democracies are more and more embracing the principle of subsidiarity: that each
government function should be performed
by the lowest level of government that is capable of performing that function effectively. When there are
multiple layers of elected government, as in a federal or politically decentralized system, there are other benefits for democracy. Lower levels
of elective office can constitute an arena for training and recruiting new political leaders, including women and young people who have not
previously had a role in political life. And these lower levels of democracy provide a more accessible means for citizens to become active in
public affairs: to question their local officials, monitor what they do, present their interests and concerns, and learn the skills and values of
democratic citizenship. Typically, it is difficult for most citizens and organized groups to get access to the national parliament or the central
ministries. They need
decentralized opportunities for access to decision-making power. And those points of
local access are more likely to be responsive if they are accountable to the people through elections.
Finally, decentralization of power provides an additional check against the abuse of power. Of course, checks
and balances are needed within the central government itself. This is why there must be an independent parliament
and judiciary, and effective auditing and counter-corruption mechanisms. But federalism can provide an additional bulwark
against the concentration and abuse of power.
Federalism key to democracy
Tabarrok 01 (ALEXANDER T. TABARROK is Senior Fellow at the Independent Institute, Assistant Editor
of The Independent Review, and Associate Professor of Economics at George Mason University,
“Arguments for Federalism”, 20 September 2001, CS
Federalism is so important to the cause of liberty and to the American constitutional structure—and so little
appreciated—that its study should occupy a central place in the education of all Americans, especially students of
government and law. Here I shall only summarize the key arguments for federalism. An eclectic and highly incomplete list of readings is
recommended at the end of this presentation for further study. 1. Laboratories
federal system,” Justice Louis D. Brandeis wrote in 1932, “that a
of Democracy “It is one of the happy incidents of the
single courageous state may, if its citizens choose, serve
as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” In
a decentralized system ideas can be tried at the local level, there learning occurs, ideas are improved and then begin to diffuse throughout the
rest of the country. This idea is more than theoretical. Airline deregulation began at the state level and was adopted nationally when it was
noticed that in-state trips in large states that had deregulated were much cheaper than trips of the same distance that crossed state lines.
Welfare reform and school choice are two other examples of recent policies that began at the state
level. The lessons learned need not always be positive lessons. Other states and countries owe California a great debt, for example, for its
demonstration of how not to deregulate electricity. 2. Diversity of Preferences The laboratory of democracy view
implicitly assumes there is one best way to do something and that a decentralized trial and error process
is a good way to discover what that best way is. If it were not for change, then from this viewpoint all jurisdictions would
converge over time on a similar set of policies as they learned from one another what the best policies were. The diversity of
preference view says that even in the long run, policies will differ across jurisdictions because people
have different preferences. What is best for Rhode Island is not necessarily what is best for California, and
what is best for San Jose is not necessarily what is best for San Francisco. By decentralizing power one can better match preferences with
policies. The diversity of preference view implies that the more heterogeneous a society is, the more decentralized should be its institutions.
Decentralization, by the way, doesn’t simply mean decentralization to a smaller government unit; it may mean leaving the decision in private
hands – leaving a decision to private choice is in effect decentralization to the smallest political unit, the individual. In their classic work The
Calculus of Consent Buchanan and Tullock make both the point about heterogeneity and decentralization to the individual when they write that
“Many activities that may be quite rationally collectivized in Sweden, a country with a relatively homogeneous population, should be privately
organized in India, Switzerland, or the United States (p.116).” 3.
Subsidiarity: Matching Economic and Political
Jurisdictions Subsidiarity is a European term that means “higher level governments should not do anything that lower levels government
can do as well or better.” More generally, impact jurisdictions should be matched to political jurisdictions. What do I mean? Consider the issue
of what level of government is responsible for the financing of fire houses. Suppose that the effective range or impact of the firehouses is 5 km
and that the firehouse is located in a jurisdiction of 10 km (see diagram). If
there are more voters in the central jurisdiction,
then they can foist some of the taxes for the fire station on taxpayers in the outer jurisdiction. Since the
benefits of the firehouse go solely to the central jurisdiction but the costs are spread across both jurisdictions, the central jurisdiction is being
subsidized and thus has an incentive to spend more on firehouses than is justified by the actual benefits. This is what we mean by pork barrel
legislation. There are 435 districts represented in Congress, for example, so it costs each district approximately 1/435th of the actual cost to
build a local project such as the Lawrence Welk museum. Thus, we get too many museums devoted to Lawrence Welk. A great cost to us all.
The other alternative is that the outer jurisdiction contains more voters than the central jurisdiction—thus, seeing no benefits, they have little
incentive to impose costs. In this case the central jurisdiction may have too little spent on firehouses. Note also that the subsidiarity principle
also implies that decentralization can go too far. If we split the central district into two, then there could be wasteful duplication of services;
two firehouses when one would do. Similarly when dealing with public goods the subsidiarity principle implies that the public goods with the
largest extensive range should be supplied by the political jurisdiction with the largest extensive range. National defense is the obvious
If national defense were left to the states each state would have an incentive to free ride on the
provision of defense by the others. If New York pays for a nuclear missile, then why should New Jersey
pay for anything at all? When we think of federalism we naturally think of the federal government and the states, but the principles
that motivate federalism apply at all levels, and we should be imaginative in thinking about how political units can be designed to match impact
jurisdictions. There is no reason, for example, why the political unit that determines fire expenditures need be the same as the unit that
determines water or school expenditures and indeed in the United States in addition to national, state and local governments there are many
thousands of special districts that are often functionally organized and that control areas such as water, streets, lighting and so forth. 4.
Liberty through Mobility and Competitive Federalism Oppression at the federal level is difficult to
escape. Oppression by the states can be countered by mobility. The more powers that are devolved to
lower levels, the easier it becomes pick and choose policies by moving. Gays may move to cities like San Francisco
where they are better tolerated, and indeed if enough of them move they can become a political force. In this respect, the idea is similar to the
diversity of preferences notion except there the emphasis was on the idea that federalism allows pre-existing diversities to be recognized.
Whereas here the idea is that you can move to a city or town that better reflects your preferences. One sometimes hears, for example, that
federalism was more important in the 18th century when the people of Virginia really were quite different than the people of New England.
Today, so the argument goes, now that people are much more likely to move from one state to another the differences are less clear and so
federalism is less important. While this argument makes some sense from the diversity of preference view, it makes no sense at all from the
perspective of mobility because it is mobility that generates differences in preferences and competitive
federalism works better the more mobile citizens are. The mobility argument, however, is about more than preferences, it’s
about checking and limiting government power. The idea is not simply that exit allows for islands of liberty but that the threat of exit means
that you don’t have to leave to achieve liberty. Knowing that taxpayers will leave if taxes become too high, for example, means that taxes won’t
become too high. As Nobel Laureate in economics James Buchanan (1995/1996) put it, in an ideal federalism the “federal government is
constitutionally restricted to the exercise of the minimal or protective state functions, while all other functions are carried out by separated
state or provincial units. The availability of the exit option, guaranteed by the central government, would effectively place limits on the ability
of the state-provincial governments to exploit citizens . . . Federalism serves the dual purpose of allowing the range or scope for central
government activity to be curtailed and, at the same time, limiting the potential for citizen exploitation by state-provincial units.” Nor
is it
just mobility of people that is important but also mobility of capital. Mobility of labor and capital,
together, ensure that governments cannot easily expropriate wealth thereby destroying the prospect of
economic growth. In this sense federalism was critical to the rise of the Industrial Revolution in England.
England, of course, does not have a written constitution or explicit national and state governments but after the Glorious Revolution the
powers of the national government were limited and economic power flowed to local governments. Competition among these local
governments gave the nascent industrial revolution breathing room. It’s often the case that technological change disrupts and diminishes the
power of old industries and political coalitions and as a result these coalitions try to hold back innovation. It is important, therefore, that there
be some way to escape the clutches of powerful coalitions—in England the industrial revolution began not in the long-established cities
(because these were dominated by politically powerful groups averse to change) but in the relatively free countryside—had England had a
national government capable of controlling economic life, there would have been no escape from the dominant coalitions of the day. Quoting
political scientist Barry Weingast (1995), “Federalism thus provided a necessary and decisive political foundation for England’s industrial
revolution.” In many ways, the
competitive federalism vision is the closest to that of the Founder’s—because it
treats federalism as a way of sustaining liberty just as are the other checks and balances in the U.S.
system. In particular, this view of federalism is tied closely to the enumerated powers interpretation of the constitution. Quoting Madison,
“The power delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State
governments are numerous and indefinite.” The powers of the federal government, in other words, are highly limited by law and where power
is less limited, at the state and local levels, limits occur by creation of the exit option. Note that the purpose of limiting the federal government
is not to create state’s rights. Madison mocked this view in Federalist 45 when he wrote that “Was, then, the American Revolution effected,
was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that
the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal
establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty?” Unfortunately, in
the recent federalist cases of the Supreme Court, they have taken precisely the line that federalism is good in certain areas because of a
“traditional state concern” and have emphasized state prerogatives and autonomy rather than liberty and citizen choice. The notable exception
is Justice Thomas, whose concurrence in the Lopez decision is highly recommended.
Federalism Low Now - General
Traditional federalism has shifted to cooperative federalism, with deficit spending
abilities increasing federal powers
Pilon 15 – Roger, PhD, J.D., Vice President for Legal Affairs, Director of the Center for Constitutional
Studies at the Cato Institute. “Federalism, Then and Now.” CATO Institute. 2015.
Testifying before the Senate Judiciary Committee in 1995, a perplexed Governor Ben Nelson remarked, “When I was elected governor in 1990 and prepared my first
budget, I honestly wondered if I was actually elected governor or just branch manager of the state of Nebraska for the federal government.” He could have been
speaking for any governor. Yet during the Senate’s Obamacare machinations in 2009, then Senator Ben Nelson cast the crucial 60th vote for cloture after
negotiating the infamous “Cornhusker Kickback” — “free” money for Nebraska, strings attached. There was a time in America when the federal government focused
mainly on national concerns and the states focused on state and local matters, like the health and welfare of their citizens. That division of powers, the
Constitution’s federalism, was never exact, of course, and it shifted
over time, but it remained largely intact for a century
and a half. During the New Deal, however, it was upended. Today, under what’s called “cooperative federalism,” the federal
government’s tentacles reach into almost every area of life, areas once thought the exclusive domain of
state and local governments — or of no governments at all. And the result, as former Senator James L. Buckley writes in his new book, Saving
Congress From Itself, is “runaway spending that threatens to bankrupt us and a Congress that appears unable to
deal with long-term problems of any consequence.” Focusing only on federal programs that offer funds to states and localities to be
used as Washington dictates, which have grown from $24.1 billion in 1970 to an estimated $640.8 billion in 2015, Senator Buckley draws on his own Senate
experience in the 1970s plus a cascading body of subsequent evidence to catalogue the vast array of costs those programs impose on our very system of
government. Before judging this as entirely Washington’s fault, however, we would do well to consult a dense 2012 tome by Professor Michael Greve, The UpsideDown Constitution; it turns out that the demise of federalism is more complicated than it seems, and the states themselves are far from blameless. In fact, of all the
“auxiliary precautions” the Founders crafted to control government, beyond “a dependence on the people,” none is more complex than James Madison’s
“compound republic,” which helps explain why so much constitutional litigation has concerned this one issue. Yet as I discussed in these pages in the Fall of 2013
when government overreach was the theme, here too the
heart of the problem is overweening government: as Senator Buckley puts
it, “Congress’s current dysfunction is rooted in its assumption, over the years, of more responsibilities
than it can handle.” To little more than outline these complexities in this limited compass, I will build here on that earlier article by first sketching the
theory that animates federalism, especially as it emerges from the Constitution, then trace how that theory has played out in practice, and finally look briefly at
what’s to be done at this point in time. The word “federalism” is nowhere in the Constitution; the idea must be inferred from the document’s structure, aided by
discussions throughout the Federalist. “Compound republic” and “dual sovereignty” capture much of its meaning. To grasp its essence, however, focus on its
function — to protect liberty. Imagine “We the People” in the beginning, sufficiently secure to think long-term, our progeny in mind, yet each with his own separate
interests, and cognizant of his rights to life, liberty, and the pursuit of happiness as well as threats to those rights, for which government is the desired remedy. As
Madison counseled in Federalist 51, “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable
the government to control the governed; and in the next place oblige it to control itself.” Heeding that, we could create and empower a unitary government, as
many peoples have; but then, for greater security, we could separate those powers functionally, vesting them in different branches. More safely still, we could
divide powers between separate governments, each with its own jurisdiction. With powers thus separated and divided, “a double security arises to the rights of the
people,” said Madison. “The different governments will control each other,” through divided powers (a “compound republic” — federalism), “at the same time that
each will be controlled by itself,” through separated powers. History and circumstances foreordained the order of America’s choices: We began as effectively
autonomous states, brought together under the Articles of Confederation by war. So minimal was that national government, however, that in time we realized that
we needed “a more perfect union,” especially to address international matters like threats from abroad and to check state impediments to interstate commerce.
Thus motivated by liberty, we created a more powerful national government, through the Constitution. The document’s federalism provisions are summarized in
the Tenth Amendment: “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.” Mischievously called the “states’ rights” amendment, it’s meant to reaffirm the very theory of the Constitution: the federal
government has only those powers that the people gave it, as enumerated mainly in Article I, Section 8, all of which pertain to national concerns; the balance of
powers, if not prohibited to the states, are reserved to them — or to the people, never having been given to either government. And states’ powers, as Madison
wrote in Federalist 45, “extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal
order, improvement, and prosperity of the State” — to be checked through state constitutions. Thus, federalism’s
core idea, divided
jurisdictions, is achieved in the Constitution itself mainly by enumerating and hence limiting Congress’s
powers — the balance reserved, by implication, to the states or the people. That’s not a detailed division, to be sure, which accounts for the ensuing litigation;
but it’s doubtless the best that could be done, given the indefinite subject. Yet the main point is clear: most government is to remain at the state level. In various
places the Constitution addresses other aspects of federal-state relations — as in the much litigated Supremacy Clause, which makes federal law supreme over
conflicting state law — but the point remains: as Madison put it in Federalist 45, Congress’s powers are “few and defined.” As it emerged from the Constitution,
then, federalism maximized liberty in four crucial respects. First, it empowered the federal government to address truly national matters that were inadequately
addressed under the Articles, like national defense, international and interstate commerce, immigration, and protection for intellectual property. But second, to
protect state interests and check federal power, Senators were chosen by state legislatures. Third, federalism respected subsidiarity: responsibility rests first with
the lowest authority, the individual; then, if necessary, with local, state, and, finally, national officials. That maximized liberty by keeping authority as close to the
individual as possible, thus affording a greater opportunity to check errant authority. And finally, given that citizens are free to move, federalism maximized liberty
by making states compete for their allegiance. Individuals were presumed, by their choices, to maximize their own liberty. If local or state governments themselves
failed on that score, their citizens could simply vote with their feet. That’s “competitive federalism.” Complex though it is — unitary government is so much simpler
— federalism worked, for the most part, as the Founders meant it to — until the New Deal. It did because federal power remained relatively limited, because the
states remained relatively autonomous, and because the sectionalism that grew following the Constitutional Convention’s compromise over slavery, to ensure
union, impeded the federal-state collusion that would follow the New Deal. But that compromise would not last. Slavery did not wither away over time, as many
Founders hoped it would. It took a civil war and the Civil War Amendments to end it — and the Fourteenth Amendment, in particular, to bring the states at last
under the Bill of Rights, marking a fundamental change to our federalism. Under Section 1 of the amendment, citizens could now ask federal courts to protect them
against their own states. And under Section 5, Congress could enforce those rights through legislation. Here again, national power was enhanced not to restrict but
to better secure liberty — to more effectively limit state governments. Thus, federalism doesn’t always entail the devolution of power. If its aim is liberty, it can go
in the other direction. In practice, of course, federalism’s “mid-course correction” through the Fourteenth Amendment did not occur all at once. Indeed, it was
painfully slow in unfolding — witness the long Jim Crow era — and it’s still unfolding, not always evenly or accurately. But with it, the grand principles of the
Declaration of Independence were at last incorporated in the Constitution. We
come now, however, to the reversal of that course, to
the Progressives’ express rejection, as the 20th century was dawning, of the Founders’ limited government vision.
Distrusting free markets regulated under the common law, Progressives were social engineers who looked to European “good
government” models, envisioning a world in which elites like themselves would plan vast areas of life through social and economic legislation. Their initial efforts,
directed mainly toward the states, garnered mixed results since courts generally saw their schemes as unconstitutional. Once ensconced in Franklin Roosevelt’s New
Deal administration, however, Progressives shifted their focus to the federal level, yet here too the Supreme Court stood mostly athwart their efforts. So after the
landslide election of 1936, Roosevelt unveiled his infamous threat to pack the Court with six new members. The plan failed politically, but the Court got the
message. With the “switch in time that saved nine,” it began “rewriting” the Constitution, especially its implicit federalism. In 1937 it opened the floodgates for the
modern redistributive and regulatory state by eviscerating the doctrine of enumerated powers. In 1938 it bifurcated the Bill of Rights, reducing economic liberty to a
second-class status. And in 1943 it jettisoned the non-delegation doctrine, enabling Congress to delegate ever more of its law-making authority to the burgeoning
executive branch agencies it had been creating. The demise of the enumerated powers doctrine was the seminal rewrite. Although the Founders had meant the
doctrine to be the main structural restraint on overweening government, in truth it was often more by politics than by law that it was enforced. Here, it was
Congress’s power to tax and spend that was first at issue. In a pair of decisions challenging the new Social Security Act, the Court drew on a previous decision that
had revisited an early debate about the scope of that power. Alexander Hamilton had held that Congress had an independent power to tax and spend for the
“general welfare.” That couldn’t be right, said Madison, Thomas Jefferson, and most others, since if it were, then any time Congress wanted to do something
unauthorized to it, it could say simply that it was spending for the “general welfare,” thus rendering Congress’s other enumerated powers superfluous. The General
Welfare Clause, said Madison in Federalist 41, was simply a heading, informed by the enumerations that followed. That view largely held for 150 years. But the 1937
Court came down on Hamilton’s side, freeing Congress to spend at will. The second power at issue that fateful year concerned regulation. As noted above, under
the Articles of Confederation, states had burdened interstate commerce by erecting protectionist measures for the benefit of local interests, so the Founders
empowered Congress to regulate — or “make regular” — commerce among the states. The New Deal Court read that grant, however, as authorizing Congress to
regulate, for any reason, anything that affected interstate commerce, which in principle, of course, is everything. The floodgates were now opened to the modern
regulatory state as well. With the demise of those structural limits, federal programs exploded. No problem was too small or local for Congress’s attention as
members fell over one another bringing home the bacon. And since Progressives had earlier brought about the Sixteenth and Seventeenth Amendments, there was
now plenty of bacon flowing to and through Washington thanks to the income tax, while thanks to the direct election of senato rs, members of that chamber could
ignore their state legislatures’ interest in protecting states as states and attend instead to the interests of their constituents. As Senator Buckley notes, 82 federal
programs today deal with teacher training — a traditional state function, over which Congress has no constitutional authority — 44 programs in 9 agencies for
planning economic development, 29 programs in 8 agencies for the construction and renovation of nonresidential buildings, and on and on. But it’s not entirely
Congress’s doing. As Professor Greve illustrates, today’s
cooperative federalism entails federal-state collusion. Congress
“induces” cooperation by offering up gobs of federal money for local projects, provided states
themselves contribute some funds. Although a state may have other more pressing needs, it’s hard to turn down “free” money, especially if it
enriches local interests. Moreover, states turning down federal offers face a hard reality: their citizens’ taxes
fund other states’ federal programs. And on the regulatory side, as history shows, elites in “progressive” states impose
“enlightened” economic regulations — favoring coercive unions, say, or minimum wage increases —
putting them at a competitive disadvantage vis-à-vis other states, so they press Congress to impose those
regulations on the entire nation. And once a program is established, the “iron triangle” — congressional
committee, executive branch agency, and special interest — ensures its perpetuity. Perverse incentives endure in
this classic prisoner’s dilemma. For his part, Senator Buckley urges eliminating the more than 1,100 federal grants to states and localities, term limiting members of
Congress, lifting the caps on individual campaign donations, and reviving federalism in the courts, all designed to free Congress to attend to its “core national
responsibilities” — a tall order for sure, given the countervailing incentives. Yet occasionally there’s a glimmer of hope. Nearly half the states declined to participate
in Obamacare’s Medicaid expansion, for example, even though it would have been “free” for several years. And fully 36 states declined to establish state exchanges
under the plan. Maybe it was a fluke — concerning the most audacious scheme to come along in ages — or maybe an awakening — we can’t keep spending
borrowed money. It’s too early to tell. A century ago, political forces began undermining the auxiliary precautions the Founders created, unleashing the perverse
incentives that imprison us today. We are left, then, as Madison saw, with only “a dependence on the people [as] the primary control on the government.” If their
recent reaction to the political audacity presently surrounding us is any indication, there may indeed be hope.
Federal government power has been increasing (evident in the Commerce Clause, war
powers, IR, rise of coercive federalism)
Chertoff 17 – Meryl Justin Chertoff, executive director of the Institute’s Justice and Society.
“Federalism Makes a Comeback.” The Aspen Institute. 10/1/17.
Everyone has read these headlines. But if I say that they all are based on the concept of federalism embodied in the US Constitution, many people react with MEGO
syndrome (My Eyes Glaze Over). Yet federalism
is one of the most important structural safeguards of liberty woven into the
Constitution by the Framers; their geometric minds envisioned it as a means of achieving balance and order. In the nation’s infancy, Alexander Hamilton in
Federalist 17 speaks of the “rivalship of powers” between the central government and the states, echoing the famed phrase in Federalist 10 on the balance of
powers between the branches, “ambition countering ambition.” Federalism
emphasizes that the defined limitations of central government have real
retain autonomy in a broad range of policy areas—serving, as Justice Louis Brandeis put it, as the
“laboratories of democracy.” But the party in power in Washington, at least since the New Deal, always has sought
to expand its reach in dominating the states. These distributions of power show up in the Constitution itself: they include the tautological
phrase in the Tenth Amendment stating that all powers not delegated to the federal government are retained by the states. That phrase is modified by the
Commerce Clause, which gives the federal government primary authority in those matters affecting
interstate commerce. And it has given rise to a broad category of case law on preemption, in which only
the federal government may act in certain areas (war powers, international relations) or, in cases where
the federal government and states both act, in which conflicting approaches are resolved in favor of the
federal government. For the last generation, federalism was the rallying cry of conservatives. The powerful policy organization that supplied its
meaning, and that states
intellectual firepower on judicial and constitutional theory named itself the Federalist Society. Yet today, Americans are seeing a progressive federalism, as liberals
turn their attention to addressing policy at the state level. Trading places with the conservatives, liberals now are in a position they never thought they’d be in, and
they have discovered federalism as a tempering force: a repository for more power in the states, a perch to create alternate models of governance, and even a
bunker to challenge federal policies through litigation brought by state attorneys general, who often build cases around state policy in conflict with federal law.
Conservatives and liberals have made common cause of a longtime conservative bulwark: states’ rights, the “laboratories of democracy” that can serve as
tempering forces and alternate models of governance. The same-sex marriage movement is a useful example for those seeking to examine how federalism can
shape policy nationwide. Advocacy groups in that effort adopted a multipronged strategy. While some litigation entailed high-stakes battles in federal courts, more
often the battle was state by state, with efforts made to change legislation, amend state constitutions, or to find a right to marriage in existing state constitutions—
as the Massachusetts Supreme Court did through the landmark Goodridge case, in a decision written by then–Chief Justice Margaret Marshall. By the time the US
Supreme Court took up same-sex marriage in Obergefell, the climate of public opinion around the nation was far more favorable to a decision that only a few years
before might have seemed radical. In the field of climate change, too, states can push policy. When California sets strict emission standards, Detroit takes notice if it
wants to sell cars there. So do food vendors when it comes to animal welfare and product labeling. As Yale Law School Dean Heather Gerken noted in a talk at the
Aspen Ideas Festival this summer, federalism at its best protects “minorities and dissenters”: their voices, when organized, have a bigger megaphone in the smaller
state arena than in the larger, dilute federal one. Yet during the past eight years, with the conviction that their leaders never would be in the party out of power,
progressives moved to strip states of their coordinate power with the federal government. Many viewed “states’ rights” as the province of Southern racists seeking
to avoid civil-rights laws. When the Obama administration sued the state in Arizona v. United States, Justice Anthony Kennedy wrote that enforcement of
immigration law at the US southern border was a matter of foreign policy, properly administered only by federal authorities. That worked well for states like
California and New Mexico, whose state policies jibed with the Democratic administration’s policy of a soft approach to illegal entry. But when the Trump
administration announced an intent to adopt a harsher tack, states began to realize they were all now stuck with a rule that allows for no state coordination or for
more compassionate approaches by state authorities. More heartening is the approach taken by the Supreme Court majority in the lesser-noted part of the decision
in the Affordable Care Act case. While liberals marveled at the opinion by Justice John Roberts on the individual mandate, the other half of the opinion had to do
with sanctions against states that chose not to expand Medicaid. The
ACA envisioned that the sanction against states that did
not expand would be to withhold part of the federal share of Medicaid—up to 100 percent. This is an example of
what is called “coercive federalism”—that is, the federal government’s effort to exact uniform policy from the
states individually when a separate constitutional or legislative mandate would preclude directly
requiring it. In a surprise, several of the liberal justices joined the portion of the opinion stating that the sanction went too far and intruded on state
autonomy—since Medicaid spending is in many states not only the lion’s share of the health budget but of the state budget as a whole. The sanction, would, for
many states, blow a hole through the state budget, and in doing so, intrude too much on the “retained powers”—autonomy—that the Tenth Amendment refers to.
In an effort to explore the wide range of perspectives regarding federalism, in November scholars from the Berkeley School of Law and the Pepperdine University
School of Law will meet at Berkeley for a symposium on federalism convened in cooperation with the Aspen Institute’s Justice and Society Program. A meeting the
following spring at Pepperdine will continue the conversation. Hopefully, fresh perspectives on federalism will emerge from these two symposia.
NU – Trump Destroyed
Trump put federalism on the brink through the overturning of historical laws during
the apex of COVID – means its susceptible to collapse.
Gawthorpe 20 (“Andew Gawthorpe is a lecturer in history and international studies at Leiden
University in the Netherlands” – The Guardian "Federalism has become another casualty of Trump and
the coronavirus," The Guardian, 4-1-2020, - qcl
Many American institutions and traditions have been challenged in the era of Donald Trump. The latest
is federalism, the idea that power should be shared between the federal government and the states. The
president’s response to the coronavirus epidemic has had a curious impact, overturning the historical
preferences of both parties. Put simply, coronavirus has meant federalism for Democrats who have
been abandoned in the face of the pandemic, and slavish devotion to federal authority for Republicans.
Federalism provides a logical way for the United States to respond to epidemics. States have the
primary responsibility for their citizens’ health – about which they have the best information – but the
federal government needs to take the lead in coordinating a national response. Supplies need to be sent where
they are needed most, and measures like lockdowns have to be implemented and lifted in accordance with a national plan rather than
haphazardly at the state level – because, as Andrew Cuomo has said, “state boundaries mean very little to the virus”. Yet a
vacuum of
responsible leadership from the White House has meant that the system has not worked as intended.
Rather than seeing it as his role to work with the states to develop a national plan, Trump instead spent
months denying that a problem even existed and stating that he took “no responsibility” for fighting the
virus. When the prospect of emerging as the hero who restarted the economy beckoned, he swung to the other extreme, claiming
“total authority” to supersede decisions made by the states and suggesting that governors who
wanted to lift lockdowns at their own pace rather than his direction were committing “mutiny”. On
Friday, Trump went on a bizarre, all-caps Twitter rampage, calling on citizens to “LIBERATE” Minnesota, Michigan and Virginia from state
quarantine measures. Many Republican governors have responded by following the president’s lead. Even as the government’s top infectious
diseases expert was pleading for a nationwide lockdown, governors like Florida’s Ron DeSantis chose to sacrifice the health of their constituents
on the altar of their desire to please the president. When DeSantis did eventually issue a stay-at-home order, he explicitly cited Trump’s
changing “demeanor” as his reason for doing so. Other Republican governors took their cues from the federal government too, for instance by
waiting for Trump to issue a national emergency declaration before they issued their own. Some Republican governors – such as Mike DeWine
of Ohio and Larry Hogan of Maryland – acted earlier, but they represent states in which Trump’s popularity is much lower than average among
Republican-governed states. Democratic governors have been more in tune with the needs of their localities than the president’s shifting
moods, issuing emergency declarations and lockdown orders sooner than their Republican counterparts. When their pleas for a more effective
federal response were ignored, they turned to self-help instead. As it becomes clear that Trump is pushing for an irresponsible reopening of the
economy, Democratic governors in the west and north-east have established working groups consisting of public health experts and economists
to plot their own way forward. Why did Republican governors stick with the president while Democratic governors went their own way? Much
of the explanation can be found in the power of partisanship, and the nationalization of state politics. Trump’s grip on the Republican base is so
absolute that the governors of red states value their relationship with him above almost any other. And so much of local politics is now filtered
through a national lens that Republican governors must be seen to be toeing the president’s line even on local issues in order to please that
base. The
particular way that Trump exercises power has also contributed to the reaction of governors
from both parties. Trump has made clear that he will dole out federal largesse according to political
loyalty, even preventing Colorado’s Democratic-led government from purchasing ventilators on the
open market and later sending a hundred units “at the request” of the state’s Republican senator, who is
facing a tough re-election battle. The message is clear: Democratic governors need to help themselves, because Trump sure won’t. And
Republican governors need to stick close to a president who sees himself as his party’s feudal patron rather than the leader of the entire nation.
The result has been an inversion of what the Founders intended, with some states slavishly following
federal dictate in flagrant disregard of local needs, and others hung out to dry as a national crisis
looms and Washington does little to shepherd a national response. Democratic governors cannot rely
on the president to protect the lives of their citizens, and Republican governors find themselves acting
more as the lackeys of a monarch than representatives of the interests of their states. Taken together,
these developments suggest that federalism has become another casualty of a president
unprecedented in his disregard for everything which truly makes America great.
NU – Courts Destroyed
The courts are collapsing states rights – the SCOTUS’ recent encroachment on state’s
property rights means we’re on the brink.
Dana 4-5 (David Dana is a peer-reviewed journalist for the Hill, "Will the Supreme Court abandon
federalism to defeat pro-labor regulation?," TheHill, 4-5-2021, -qcl
In March, the U.S. Supreme Court heard arguments for Cedar Point Nursery v. Hassid, in which the
Pacific Legal Foundation (PLF) asserted that a California law allowing union organizers entry onto
agricultural private property for up to 120 days a year constitutes a “taking” under the U.S. Constitution.
For deregulation advocates like PLF, the case presents a new opportunity for the justices to empower
the Takings Clause to be a more central constitutional doctrine buffering private property from what it
views as overreaching state authority. But it also asks the court, implicitly, if it remains committed to the
principle, celebrated by conservative Justices William Rehnquist and Antonin Scalia, of “federalism,” that
is, devolving power from the federal government to the states. Efforts to empower property rights in
the federal courts usurp the states’ rights to determine their own property laws. In cases where
plaintiffs seek compensation for the government’s taking of their property, courts must point to a
property interest that is being taken. Since the founding era, states have had ultimate authority to
define these interests. States need latitude not only to define property rights, but to redefine them
from time to time. In the 19th century, to meet the growing economy’s insatiable demand for lumber,
most states expanded their definitions of a river’s navigability, or public use, to “commercial usage” or
“floatable usage” — allowing timber companies to float logs through private property. With the advent
of air travel, courts redefined underlying property interests and the law of trespass to allow airplane
overflights. Drone use and data harvesting are two of many areas where adjustments in property rights
are being debated today. In an increasingly polarized society, there are powerful reasons not to have the
federal government proscribe uniform rules throughout the country on all property matters. Why
should a landlord’s property rights regarding evicting tenants in Alabama and California have to be
identical? Having states adopt a variety of laws serves as an important incubator for growth of the
economy and for promoting public welfare. States, for example, take different approaches as to what is
categorized as “marital property,” and that legal diversity allows for real-world tests of the different
approaches. Moreover, a one-size-fits-all approach to property law ignores the physical differences
among the States. California, facing fire, drought and beach erosion, needs a different law of property
than landlocked Iowa. In the 1980 case of Pruneyard Shopping Center v. Robins, the central precedent
for the current Cedar Point Nursery case, California shopping mall owners argued that it was a taking to
require them to allow petitioning on their private property. Justice Rehnquist authored an opinion
upholding federalism. Rehnquist held that California’s constitution allowed it to define property rights –
including how the “right to exclude” is defined – differently than Oregon had done in a similar case. To
Rehnquist, the federal government was not possessed of the “residual authority that enables it to define
‘property’ in the first instance.” That authority lay in state constitutions, state laws and state courts. But
the Supreme Court of the same period started empowering takings by defining “per se” takings rules
that applied uniformly across the country. When the Supreme Court defines a “per se” rule of takings,
it means that no other balancing or factual inquiry is required, overriding states’ ability to define
property. An expansion in the scope of per se takings is thus, in effect, a reduction in the power of
states to define property rights under their own law. Importantly, however, the per se rules the
Supreme Court has adopted to date are so narrow and limited in scope that they do not
fundamentally affect states’ ability to define property rights. As their lawyer stated in the oral
arguments, PLF wants nothing less than a new per se rule of takings that would override state law on
many issues. PLF requests a new per se rule that no matter the extent of the interference, any law
allowing entry on private property is a taking, even if the entry were limited to one hour per year. This
would go far beyond the current per se rule of the 1982 case, Loretto v. Teleprompter Manhattan CATV
Corp., which holds that only “permanent physical occupations” of property are per se takings. Under the
PLF’s approach, it would be immaterial whether a state had determined that property ownership does
not include the right to deny reasonable access to the property for a public purpose. The justices’ own
questions at oral argument – as well as public commentary to date – have largely ignored the
federalism dimension of the Cedar Point case. That is a mistake. The initial question in Cedar Point,
long before the case ever reached the Supreme Court, should have been one about California law: Does
a commercial enterprise’s property rights include the right to deny labor organizers reasonable access to
employees whom the employer brought to the site, and who may benefit from the organizers’ counsel
in order to prevent their exploitation? The Supreme Court should remand Cedar Point to the lower court
to consider that question. By so doing, it would recognize and ratify the central role of state law in
defining property rights. If states are not allowed to define substantive property law, it will be shaped
by the preferences and ideology of the justices who happen to serve on the United States Supreme
Court. Should Cedar Point mark a step toward the justices arrogating that tremendous power to
themselves, that will be a troubling development. If federalism is no longer a priority to the
conservative legal movement, we will move to a new era of the triumph of empowered takings where
the federal courts usurp the role of the states in determining property laws, limiting the power of
states to adapt to disparate conditions and experiment with solutions that might well benefit the
country as a whole.
NU - Spending
Deficit spending made the Recession the tipping point to federal power overpowering
state power
Pound 17 – William T., executive director of the National Conference of State Legislatures. “The State
of Federalism Today.” National Conference of State Legislatures. 7/24/17.
Federalism always has been one of the most significant features of the American constitutional system. The division of authority between the states and
federal government is a constantly evolving system of dynamic tension. With the recent changes in our nation’s capital, the state-federal relationship is once
again at the center of policy debates. The future will likely see both cooperation and conflict. That’s nothing new. In drafting the U.S.
Constitution, which was ratified by state conventions, the framers anticipated that states would be the principal policymakers in a system that granted limited
power to the federal government. Over the course of our republic, however, Congress and the federal executive branch have often ignored state concerns and
enacted laws and rules that pre-empt state laws, put undue burdens on state finances, or are difficult and burdensome to implement. Before
the Civil
War, states generally dominated American federalism. But a stronger national government emerged after
the war and grew with the advent of the income tax, World Wars I and II, and the Great Depression. With the modernization of state
legislatures in the 1960s and ’70s, a new balance in our federal system developed. The 1960s saw the creation of Medicaid, a shared state-federal program. And in
the ’70s, general revenue sharing provided unrestricted federal financial assistance to states and localities. This experiment with “no-strings” and noncategorical
sharing of federal revenues did not have a long life, however. The
last 40 years have been a period of more balanced
federalism. State governments, generally, have been fiscally healthy and active as the country’s creative laboratories and
public policy innovators. Creative environmental and energy legislation, novel education reform and inventive health policy all flowed from the states. But the
Great Recession, which hit at the end of 2007, was an enormous challenge to healthy federalism and the ability of
states to carry out their role as partners in the federal system. Nearly all major domestic policy programs—Medicaid, family assistance, transportation and
education—are managed by states or localities. During the recession, fiscal shortfalls and constitutional requirements for balanced
budgets limited states’ ability to maintain these traditional funding priorities. At the same time, the ability of the federal
government to deficit spend, particularly as a counter to recession, allowed it to expand its initiatives and direct state
policy when it was very difficult for states to resist. This only added to the growth in the percentage of
federal funds in state budgets that has been occurring over the last 50 years. Federal funds to expand Medicaid have driven increases in overall
state spending. In fact, the only category of state spending that has increased as a percentage of the total in the past 10 years is Medicaid. It currently accounts for
29 percent of state budgets and grows every year. How the new administration and Congress will address this big-ticket item remains to be seen. But current
debate centers on devolving power back to the states, giving them more autonomy, flexibility and control over Medicaid—as well as more of the costs—and NCSL
will continue to monitor the discussions. As the federal deficit grows, the search for ways to reduce spending or establish new revenue sources will increase. Both
could impact state budgets. Federal
tax changes now under discussion could have major effects on traditional state
revenue sources, yet the voice of the states is often missing from congressional debates. NCSL is here to ensure
that states’ interests and concerns are heard and included in the national dialogue. The creative tension in federalism can only be maintained by avoiding
overreaching federal pre-emption and mandates. If states are to be the laboratories of democracy, they need the freedom, power and flexibility to innovate, create
and adapt policies that best meet the needs of their citizens.
No Link
NL – Feds Water
Feds key to establishing centralized water policy—states fail, localized policy lacks
unified and effective approach.
Ormesher ’17 [James Harrison Ormesher, Undergrad at University of Mississippi. Sally McDonnell
Barksdale Honors College, Examining Federalism in American Water Policy: Taking Stock of a Modern
Issue, May 2017,]
While problems related to water in terms of availability, supply, and quality exist in obvious ways, the
solutions to these problems do not necessarily manifest themselves as clearly. The federalist system of
governance respects both states’ independence between each other, as well as a level of sovereignty
from federal authorities. This means responsibilities are frequently muddled between states and the
federal governments, and jurisdictions between states are disconnected. As a result, deciding who
solves problems and how to solve problems is complicated. However, since 1980 a modern movement
of federal devolvement has resulted in state governments having more power to enact policy, as they
deem necessary. This trend has been reflected in water policy, with the federal government taking
increasing roles in managing America’s water resources until the 1980’s and 1990’s when watershed
based approaches became popular. and policy focused on collaborative state solutions. While this has
empowered states to implement nuanced water policy in their jurisdictions, the decentralization of
federal decision making has also resulted in a federal inability to address the issues in water policy that
exist as a result of the state model of governance. Ultimately, while trends in devolvement has
empowered states to make nuanced decisions and take advantage of their adaptable system of water
management, it has not been particularly helpful resolving issues associated with interstate resources.
In order to address these problems, the federal government should centralize federal legislative and
bureaucratic institutions, undertake a National Water Assessment, and create watershed-planning
organizations. By developing more unified federal processes for the creation and implementation of
water policy, it will allow for the federal government to develop goals for water resources and work to
solve problems as they arise. By undertaking a National Water Assessment, the federal government can
work to mitigate the detrimental effects associated with information gaps affecting water policy. And
lastly, by creating watershed-planning organizations institutions can be created to encourage
understanding of water resources. This has only been made more difficult by federal fragmentation of
water policy resulting in a real lack of a centralized structure able to compensate for these
inadequacies. However, by consolidating information, bringing together the involved parties, and
empowering the federal government to take advantage of current trends in cooperation at the state
levels, the federal government could improve the federalist relationship and create a more proactive
and unified water policy.
NL – Authority
No link---the Commerce Clause allows minimum standards of interstate pollutions.
Attorneys General 19. Attorneys General of New York, California, Connecticut, Maine, Maryland,
Massachusetts, Michigan, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Virginia,
Washington, and the District of Columbia. Docket ID No. EPA-HQ-OW-2018-0149 Revised Definition of
“Waters of the United States”.
B. The Proposed Replacement Rule’s Purported Constitutional
Agencies Have Changed Course Without Reasoned Explanation.
Concerns Misconstrue Applicable Law, and the
The Agencies’ suggestion in the proposed rule that replacing the Clean Water Rule with the proposed rule is
necessary “to avoid regulatory interpretations of the [Act] that raise constitutional questions,” 84 Fed. Reg at
4168, is without legal merit. Their purported concern about limited Commerce Clause authority in this
regard, referencing SWANCC (see 84 Fed. Reg. at 4170), misses the mark and does not justify the proposed rule. As
explained above, the isolated intrastate waters in SWANCC lacked the jurisdictionally-required significant nexus to downstream waters. But the
Clean Water Rule that the proposed rule would replace is based on the significant nexus standard, and raises no legitimate constitutional
concern warranting replacement. In Rapanos, Justice Kennedy
made clear that compliance with the “significant nexus”
standard “will raise no serious constitutional or federalism difficulty” and “prevents problematic
applications of the statute” that could raise such concerns. Rapanos, 547 U.S. at 782-83 (Kennedy, J., concurring in the
The polluting
activities controlled by the Act, such as point source discharges of waste, are economic in nature
and subject to regulation under the Commerce Clause. See, e.g., Chem. Waste Mgmt., Inc. v. Hunt, 504 U.S. 334, 340 n.3
(1992) (solid waste is an “article of commerce”). The Clean Water Rule, by protecting both traditional navigable waters and the waters
that significantly affect them, provides “‘appropriate and needful control of activities and agencies which, though
intrastate, affect that [interstate] commerce.’” Rapanos, 547 U.S. at 783 (Kennedy, J., concurring in the judgment) (quoting
Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 525-26 (1941)); see also United States v. Riverside Bayview Homes, Inc., 474 U.S.
121, 133 (1985) (noting Congress’ intent under the
Clean Water Act to “exercise its powers under the Commerce
Clause to regulate at least some waters that would not be deemed ‘navigable’ under the classical understanding of that term”).
Indeed, the
Clean Water Rule supports our federal system by helping to maintain a level playing field while
improving the water quality and economies of all states. The scope of the Clean Water Rule does not render it
unconstitutional because “the power conferred by the Commerce Clause [is] broad enough to permit
congressional regulation of activities causing air or water pollution, or other environmental hazards that may have
effects in more than one State.” Hodel v. Va. Surface Min. & Reclamation Assn., 452 U.S. 264, 282 (1981) (upholding the
constitutionality of the Surface Mining Control and Reclamation Act of 1977).
In addition, the
Supreme Court has made clear that federal laws like the Clean Water Act that prescribe
minimum federal standards through a valid exercise of the commerce power do not violate the Tenth
Amendment. “The Court long ago rejected the suggestion that Congress invades areas reserved to the
States by the Tenth Amendment simply because it exercises its authority under the Commerce Clause.”
Hodel, 452 U.S. at 291. And it is clear that the Clean Water Rule the Agencies seek to replace, which is based on the
significant nexus standard, is a valid exercise of the commerce power that “raise[s] no serious constitutional or
federalism difficulty.” Rapanos, 547 U.S. at 782 (Kennedy, J., concurring).
The Agencies’ purported constitutional concerns in the proposed replacement rule lack legal support. The
Agencies provide no
reasonable explanation for the change from their prior position that the Clean Water Rule presents no constitutional concerns
(see, e.g., 2015 TSD at 83-91), rendering the proposed rule arbitrary and capricious.
No Impacts
No Modeling
United States is not modeled – not a central player
Gordon Adams, 6-26-2018, (Professor Emeritus, American University School of International Service)
"A new world is dawning, and the US will no longer lead it," Conversation,
From pulling out of treaties to denigrating allies to starting trade wars, the impulsive actions of
President Donald Trump are upending the international order that has been in place since the end of
World War II.
But even before Trump’s belligerent foreign policy positions, America had been gradually losing its
dominant role in world affairs.
A power shift among the nations of the world began at the end of the Cold War and has been
accelerating this century.
It is not as simple as saying “America is in decline,” since America remains a powerful country. But
American global power has been eroding for some time, as I argue in the Foreign Policy Association’s
“Great Decisions 2018” volume. The power of other countries has grown, giving them both the ability
and the desire to effect global affairs independently of U.S. desires.
I am a foreign policy scholar and practitioner who has studied U.S. foreign policy through many
administrations. I believe this global trend spells the end of the “exceptional nation” Americans
imagined they were since the nation was founded and the end of the American era of global domination
that began 70 years ago. We are no longer the “indispensable” nation celebrated by former Secretary of
State Madeleine Albright at the end of the last century.
Since the end of WWII, the U.S. has been the central player in the international system, leading in the
creation of new international organizations like the United Nations, NATO, the International Monetary
Fund and the World Bank.
American diplomacy has been essential to multinational agreements on trade, climate, regional security
and arms control. Americans could and did claim to be at the center of a “rules-based international
Those days are gone.
Not only do China and Russia contest America’s global role, a growing number of other countries are
asserting an independent and increasingly influential role in regional economic and security
Neither American political party has come to grips with this sea change. Until they do, U.S. global
actions are likely to be less effective, even counterproductive.
No risk of modeling- US’ global reputation ruined
Simon Tisdall (foreign affairs commentator. ), 11-19-2019, "Donald Trump has dragged America's
global reputation to an all-time low," Guardian,
Europeans, if they can bear to watch, are observing US politics with a mixture of fascination and horror
– and it’s all down to Donald Trump. Each week seems to bring another democracy-shattering rumpus,
scandalous revelation or shocking tweet. The depth and evident bitterness of America’s public divisions
are unsettling for friends and allies who count on dependable US leadership.
It is hard to overstate how badly Trump has hurt America’s worldwide reputation. US presidents have
been internationally unpopular before – George W Bush over Iraq, for example, or LBJ over Vietnam. But
Trump has sunk to an all-time low.
Opinion surveys reveal the negative impact on US global standing. A 25-nation Pew survey last year
found, overall, that 70% of respondents had no confidence in Trump’s leadership. While a majority still
held a favourable view of the US, unfavourable views were up sharply from the Obama era. About 70%
said the US under Trump did not take sufficient account of the interests of other countries and was
doing less to address international problems.
Trump won’t be around forever. But this collapse in trust may have lasting, long-term implications for
transatlantic ties. A survey of 60,000 people in 14 EU member states published this fall by the European
Council on Foreign Relations found most Europeans “no longer believe the US can serve as a guarantor
of their security”. Europe and America risk drifting even further apart in 2020.
Not all this angst can be laid at Trump’s door. But his personal hostility to the EU and individual
European leaders, his denigration of Nato, his bypassing of his own intelligence agencies and state
department, his collaboration with Russia’s Vladimir Putin, and his willingness to betray staunch allies
such as Syria’s Kurds are undoubtedly stoking fears about US reliability in security matters. Trump’s
hope of scoring a big pre-election foreign policy “success” adds to the general nervousness.
Some of these fears are structural. Europeans, including Britons, are alarmed by Trump’s disdain for the
UN and other multilateral decision-making bodies, and his readiness to ignore international treaties. His
go-it-alone chauvinism weakens US leverage. It also shows ingrained disrespect for the global rulesbased order that has sustained western liberal democracy in the postwar era.
Trump’s admiration for authoritarian regimes and “strongman” leaders such as Putin and China’s Xi
Jinping, when set alongside his electoral shenanigans at home, has strengthened the view that he is no
friend to democracy – at a time when democracies everywhere are under sustained attack.
The US under Trump’s baleful tutelage is not only losing influence and respect. It is also, increasingly, a
source of and contributor to global woes and instabilities. His unilateral, nationalistic, self-defeating
approach threatens deepening trouble across the board next year.
How much longer Nato can last as a coherent force, given Trump’s relentless antipathy, is an open
Unresolved issues around Iran’s and North Korea’s nuclear ambitions are one obvious 2020 flashpoint.
Trump’s interventions to date have made matters worse. Now mounting anger and frustration in both
countries could bring tensions to a head. In Iran’s case, such escalation may quickly draw in Saudi Arabia
and Israel – and Turkey too, given Trump’s craven appeasement of Ankara after its invasion of Syria.
How much longer Nato can last as a coherent force, given Trump’s relentless antipathy, is an open
question. It is one Russia will be constantly testing as it expands its influence in the Middle East, builds
up its conventional and nuclear forces, and intimidates neighbors such as Ukraine and the Baltic states.
Another fraught 2020 issue is whether a worldwide recession can be avoided as Trump pursues his trade
vendetta with China, market confidence falls and debt levels (including the projected $1tn 2020 US
deficit) rise. Judging by his recent belligerence, Mike Pompeo, America’s undiplomatic chief diplomat,
appears determined to trigger a new cold war with Beijing. Harsh words could easily turn to blows over
Hong Kong, Taiwan and the South China Sea.
No model of federalism
Habisso 2012 (Tesfaye, former Ethiopian ambassador to South Africa) “Can Ethnic Federalism
Help to Manage Ethnic Conflicts and Accommodate National Diversity?”, Tigrai Online, Ethiopian
Daily News 10/11/2012
Apart from the defining characteristics mentioned above, federal systems can take a variety of shapes
and there is no single “model” of federalism! The qualifying adjectives, which are added to the word,
such as “quasi-federalism”, “centralized federalism”, “decentralized federalism”, “symmetrical
federalism”, ”asymmetrical federalism”, “cooperative federalism” or “executive federalism” give a first
glance at this diversity. If we have a look at the existing, real federal systems around the world (for
example, Australia, Belgium, Canada, Germany, India, Malaysia, Nigeria, Ethiopia, Switzerland and the
United States), we realize that each federal system is a system sui generis (or unique to each country
or state), both in circumstances which gave birth to it and in the forms that it takes: the relation
between the governments on the different levels, the degree to which the subunits are represented
within central institutions and the allocation of powers and competencies, differ tremendously between
those federal systems. Some federations emerged from a voluntary contract between previously
autonomous states, such as the United States, Switzerland and Canada. In these cases, autonomous
states transferred part of their powers to a new central authority. In other cases, unitary states
undertook a constitutional reform and restructured as federal systems, so powers were given from an
existing national government to the newly created subunits. The second mechanism, which is rather
seldom, holds true for Ethiopia and Belgium. The existing federal systems also differ with regard to their
formation. Federalism, when considered as a principle, can be realized in highly different institutional
arrangements and political mechanisms. In fact, there is a wide range of federal types and no federal
system can be simply adopted and introduced in another state because each institutional design has to
consider the specific ethnic composition of a country, the existing identities, the political cleavage
structure, its socio-economic state and its history, in short, the “spirit and soul of the people”, as the
great 18th century French philosopher Montesquieu, stated a long time ago. Thus any federal
institutional system in Ethiopia may borrow features from existing federal systems but in its overall
structure it is likely to be unique to Ethiopia. Ethnic federalism, it is widely believed among social elites
in Ethiopia, was adopted as a response to the age-long aspirations of Ethiopia’s diverse “nations,
nationalities and peoples” (more than eighty cultural-linguistic communities or ethnic groups) as
forcefully propagated by the Ethiopian Student Movement and all progressive forces of the country
since the 1960s and 1970s for self-rule and shared-rule and vehemently opposed to the policy of
centralization and assimilation pursued by the past successive regimes of the country. Thus, the
programme of ethnic federalism undoubtedly reflected the “soul and spirit” of the Ethiopian “nations,
nationalities and peoples”, and today ethnic federalism just works well for them, even though some
advocates of the nation-state model of nation-building do not support it at all whereas some political
forces such as the Oromo Liberation Front (OLF) and the Ogaden National Liberation Front (ONLF)
believe that the implementation of ethnic federalism is still not deep enough, that is, the FDRE
Constitution that recognizes the constitutional right of self-determination is not fully and satisfactorily
implemented to grant them full autonomy due to the ruling party’s and state’s alleged centralizing
role. Finally, it must be clearly and firmly stated that it is absolutely difficult to formulate abstract
generalizations about federal institutions and the prospects for their stability, since it might well be that
institutions that work perfectly in one context will fail to perform if transplanted to another. This paper
rejects the notion that federalism can be a one-size-fits-all solution to ethnic and other forms of
intrastate conflict. Instead, it proposes a vision of federalism deeply rooted in the specific features of
diverse societies.
Countries will not use US federalism as a model
Stepan 99 [Alfred, Wallace Sayre: Professor of Government at Columbia University, founding
Director of the Center for the Study of Democracy, former Director on Concilium on International and
Area Studies at Yale University). “Federalism and Democracy: Beyond the U.S. Model,” 1999,, 07/27/14
The U.S. model of federalism, in terms of the analytical categories developed in this article, is
"coming-together" in its origin, "constitutionally symmetrical" in its structure, and "demosconstraining" in its political consequences. Despite the prestige of this U.S. model of federalism, it
would seem to hold greater historical interest than contemporary attraction for other democracies.
Since the emergence of nation-states on the world stage in the after-math of the French
Revolution, no sovereign democratic nation-states have ever "come together" in an enduring
federation. Three largely unitary states, however (Belgium, Spain, and India) have constructed
"holding-together" federations. In contrast to the United States, these federations are
constitutionally asymmetrical and more "demos-enabling" than "demos-constraining." Should
the United Kingdom ever become a federation, it would also be "holding-together" in origin. Since it
is extremely unlikely that Wales, Scotland, or Northern Ireland would have the same number of seats
as England in the upper chamber of the new federation, or that the new upper chamber of the
federation would be nearly equal in power to the lower chamber, the new federation would not be
"demosconstraining" as I have defined that term. Finally, it would obviously defeat the purpose of
such a new federation if it were constitutionally symmetrical. A U.K. federation, then, would not
follow the U.S. model.
US reputation tarnished in eyes of other countries
Max Boot, 6-2-2020, (Columnist covering national security). " Trump has turned America into a pitiful
," Washington Post,
The world is watching, and it is appalled by what it sees. Germany’s Süddeutsche Zeitung summed it up:
“Trump declares war on America.” Our allies are mortified; our enemies are gleeful, because Trump has
handed them a priceless gift. Every tinpot dictator can now savor a moment of unearned moral
superiority over a country that has spent decades lecturing them on human rights. Chechen
strongman Ramzan Kadyrov: “I am horrified by watching the situation in the United States, where
members of the authorities brutally violate the rights of regular citizens.” The Iranian press quotes
Ayatollah Khomeini: “America has begun the process of its own destruction.” A North Korean
newspaper decries “a white policeman’s brutality.”
No Spillover
One Federal violation won’t spillover – many safeguards check.
Bednar ‘20
Jenna Bednar, professor of political science at the University of Michigan, member of the external
faculty at the Santa Fe Institute and author of “The Robust Federation: Principles of Design” April 17
2020, "Of course Trump’s authority isn’t ‘total.’ Here are 3 myths about how federalism works,"
Washington Post, - 4/17 -
Instead of coordinating a national pandemic response, the federal government has compounded the collective action problem, as shown by
Jared Kushner’s striking assertion that the national stockpile is “ours” and not a resource for the states. The
founders pointedly
included safeguards to prevent national government overreach or shirking; those include the judiciary,
separation of powers, state representation in federal decisions, intergovernmental councils, the
people themselves and states’ ability to push back. Another safeguard emerged later: the party
system. In a robust federal system, these reinforce one another, a kind of fail-safe system intentionally
full of redundancies. The founders worked to design an institutional immune system so that no single
person or faction could disrupt the government. They hoped that federalism might sustain democracy. What might threaten
this robustness would be what the Federalist Papers called a “lack of diverse interests”: If the judiciary, the branches of federal government and
the internal workings of political parties were all aligned in their thinking or had a culture of obedience, and if the public were apathetic or illinformed, then the safeguards may simultaneously fail. Where
Trump has faced limits to his attempts to expand
powers, he has attempted to skirt them: purging internal oversight by firing inspectors general and on
Wednesday, making the extraordinary threat to adjourn Congress so he can make recess appointments.
Will the pandemic serve as a catalyst, making it even easier for the president to accumulate power, or awaken the slumbering safeguards?
The governors’ decisive responses to the pandemic may suggest that the safeguards can again
constrain the federal government.
Federalism is resilient
Rodriguez 14
Christina Professor of Law @ Yale Law School, “Negotiating Conflict Through Federalism: Institutional
and Popular Perspectives,” Yale Law Journal, Vol. 124
Though pursuit of their interests by each player may often lead to conflict, particularly over which institutions should control any given policy domain, I argue that
the value of the system common to all of its participants is the framework it creates for the ongoing negotiation of
disagreements large and small—a value that requires regular attention by all participants to the integrity of federalism’s institutions. It is in this
sense that I think federalism constitutes a framework for national integration, in the spirit of this Feature. It creates a
multiplicity of institutions with lawmaking power through which to develop national consensus, while
establishing a system of government that allows for meaningful expressions of disagreement when
consensus fractures or proves elusive—a value that transcends perspective. In what follows, I attempt to establish these conclusions by
considering how the negotiations required by federalism have structured our national debates over a number of
pressing social welfare issues, including immigration, marriage equality, drug policy, education and health care reform, and law enforcement. I focus on how
these debates play out in what I call the discretionary spaces of federalism, which consist of the policy
conversations and bureaucratic negotiations that actors within the system must have to figure out how
to interact with one another both vertically and horizontally. Indeed, within existing legal constraints, state and local
actors will have considerable room to maneuver, and the federal government considerable discretion to
refrain from taking preemptive action. 2 I highlight questions of administration and enforcement, because it is in these domains that the
system’s actors construct one another’s powers and interests on an ongoing basis, based on the value they seek to derive from the system. In these
discretionary spaces, “winners” must sometimes emerge from discrete conflicts, whether through judicial resolution or political
concession, and the parameters set by courts and Congress obviously define the terrain of negotiation. But
the intergovernmental relationships and overlapping political communities the system creates are
neither locked in zero-sum competition nor bound by fixed rules of engagement, precisely what makes
federalism productive regardless of perspective. pg. 2097-2098
No spillover – federalism isn’t zero-sum – losses in one area don’t guarantee losses in
Ryan 12 -- Erin Ryan is currently a Fulbright Scholar in China. She is a professor of law at Lewis and Clark
Law School, (7-3-2012, "Spending power bargaining after Obamacare, "OUPblog,
It’s important to get these things right because an awful lot of American governance really is negotiated between state and federal actors this way.
Federalism champions often mistakenly assume a “zero-sum” model of American federalism that
emphasizes winner-takes-all competition between state and federal actors for power. But countless
real-world examples show that the boundary between state and federal authority is really a project of
ongoing negotiation, one that effectively harnesses the regulatory innovation and interjurisdictional
synergy that is the hallmark of our federal system. Understanding state-federal relations as heavily mediated by
negotiation betrays the growing gap between the rhetoric and reality of American federalism—and it offers hope for moving
beyond the paralyzing features of the zero-sum discourse. Still, a core feature making the overall system work is that intergovernmental bargaining
must be fairly secured by genuine consent.
No Impact to Civil War
Civil conflicts do not escalate
Straus 12 — professor of politics at the University of Wisconsin (Scott, WARS DO END! CHANGING PATTERNS OF
The principal finding is that in the twenty-first century both the volume and the character of civil wars have changed in significant ways.5 Civil
wars are and have been the dominant form of warfare in Africa, but they have declined steeply in recent years, so
that today there are half as many as in the 1990s. This change tracks global patterns of decline in warfare.6 While some students of
African armed conflicts, such as Paul Williams, note the recent trend,7 it is fair to say that the change in the prevalence of civil wars
is not recognized by most Africanists and generalists. Equally important but even less noted is that the character of warfare in Africa has
changed. Today's wars are typically fought on the peripheries of states, and insurgents tend to be militarily weak and
factionalized . The large wars that pitted major fighting forces against each other, in which insurgents threatened to capture
a capital or to have enough power to secede, and in which insurgents held significant territory – from the Biafra secessionists in Nigeria, to
UNITA in Angola, RENAMO in Mozambique, the TPLF in Ethiopia, the EPLF in Eritrea, the SPLM in Sudan, the NRM in Uganda and the RPF in
Rwanda – are few and far between in contemporary sub-Saharan Africa. Somalia's Al-Shabab holds territory and represents a significant
threat to the Somali federal transitional government, but given the 20-year void at the centre of Somalia the case is not representative. In April
2011, rebel forces in Côte d'Ivoire captured Abidjan, but they did so with external help and after incumbent Laurent Gbagbo, facing a phalanx of
domestic, regional, and international opposition, tried to steal an election.8 More characteristic of the late 2000s and the early 2010s are
the low-level insurgencies in Casamance (Senegal), the Ogaden (Ethiopia), the Caprivi strip (Namibia), northern Uganda (the
Lord's Resistance Army), Cabinda (Angola), Nigeria (Boko Haram), Chad and the Central African Republic (various armed
groups in the east), Sudan (Darfur), and South Sudan, as well as the insurgent-bandits in eastern Congo (a variety of armed actors,
including Rwandan insurgents) and northern Mali (al-Qaeda in the Maghreb). Although these armed groups are in some cases capable
of sowing terror and disruption, they tend to be small in size, internally divided, poorly structured and trained, and
without access to heavy weapons .9 Several of today's rebel groups have strong transnational characteristics, that is, insurgents move
fluidly between states. Few are at present a significant military threat to the governments they face or in a position to seize and hold large
swaths of territory.
Empirical studies prove civil conflicts do not escalate to interstate war
Hendrix and Salehyan 11 (Dr. Cullen Hendrix is Assistant Professor at the University of North Texas, Research
Associate at the Centre for the Study of Civil War at the International Peace Research Institute, Oslo, and Associate
at the Robert S. Strauss Center for International Security and Law. Dr. Idean Salehyan is Assistant Professor at the
University of North Texas and Associate at the John Goodwin Tower Center for Political Studies at Southern
Methodist University, the International Peace Research Institute, Oslo, and the Robert S. Strauss Center for
International Security and Law. “The Brewing Storm? Climate Change, Rainfall, and Social Conflict in Africa,”
February 2011, CCAPS - Climate Change and African Political Stability,
Traditionally, the study of conflict has been dominated by a focus on international and civil war, where at least one of the
combatants is a government. Yet, interstate war has been
extremely rare in Africa. (One notable exception is the Ethiopia-Eritrea
conflict in the late 1990s.) And while civil wars and insurgencies have occurred more often than warfare between states, they are still
relatively uncommon given the high cost of mobilizing, financing, and equipping rebel armies. Moreover, civil wars
are predicated on people’s belief that the central government is the most appropriate target of action . If conflict is
about competition over scarce water and land, then attacking the government is only useful if the government
effectively controls those resources or has the power to redistribute them within society— preconditions that are
not met in many African states. Often, it is easier to take resources from a neighboring community than to challenge the state and its
armed forces. And if a constituency is politically important, then peaceful opposition activities are often sufficient to secure the
group’s goals. Given the above, it seems far from clear that competition over dwindling resources and scarce arable
land will lead directly to interstate war or rebellion in Africa. More likely, one would expect that environmental stress will
provoke economic downturns and food insecurity, which in turn will spark episodic demonstrations, riots, labor unrest, and communal
conflicts—and such conflicts may target not only governments but non-state actors too, such as tribal groups, private citizens, and
corporations. If not addressed, these conflicts can contribute to long-term state fragility.
Federalism Bad
Federalism Fails
Federalism doesn’t work- it takes too long and too many resources.
Hawkins 2/16 (Marcus Hawkins, B.A., Political Science, Florida Atlantic University, “A Definition of
Federalism: The Case for Reinvigorating States' Rights”, ThoughtCo, 02/07/2021,
Conflicts between state and federal governments are becoming more common. States have begun to
fight back and have either passed their own laws or have taken the federal government to court in
protest. On some issues, though, it has backfired when states take matters into their own hands. The
result has been a hodgepodge of inconsistent regulations. Federal laws are then passed to decide the
issue for the whole country. While there are many examples of federal-state conflicts, here are a few
key battle issues: The Health Care and Education Reconciliation Act The federal government passed the
Health Care and Education Reconciliation Act in 2010 (which made some changes to the Patient
Protection and Affordable Care Act, passed a few days earlier), inflicting what conservatives say are
burdensome regulations on individuals, corporations, and individual states. The passage of the law
prompted 26 states to file a lawsuit seeking to overturn the law, and they argued that there were
several thousand new laws that were nearly impossible to implement. However, the act prevailed, as
the federal government, it was ruled, can legislate interstate commerce. Conservative lawmakers argue
that states should have the most authority to determine laws regarding health care. 2012 Republican
presidential candidate Mitt Romney passed a statewide health care law when he was governor of
Massachusetts that was not popular with conservatives, but the bill was popular with the people of
Massachusetts. (It was the model for the Affordable Care Act.) Romney argued that this is why state
governments should have the power to implement laws that are right for their states. Immigration Many
border states such as Texas and Arizona have been on the front lines on the issue of unauthorized.
Although tough federal laws exist dealing with unauthorized immigration, both Republican and
Democratic administrations have refused to enforce many of them. This has prompted some states to
pass their own laws to battle the issue. One such example is Arizona, which passed SB 1070 in 2010 and
was then sued by the U.S. Department of Justice under President Barack Obama regarding certain
provisions in the law. The state argues that its laws mimic those of the federal government that are not
being enforced. The Supreme Court ruled in 2012 that certain provisions of SB 1070 were prohibited by
federal law. Police officers are allowed, but not required, to ask for proof of citizenship when pulling
someone over, and they cannot arrest someone without a warrant if they believe the person is
deportable. Voting Fraud There have been alleged instances of voting fraud, with votes being cast in the
names of individuals who were recently deceased, allegations of double registrations, and absentee
voter fraud. In many states, you can be allowed to vote without photographic proof of your identity,
such as by bringing a bank statement with your address or verification of your signature as compared
with what's on file with the registrar. However, states like South Carolina have sought to make it a
requirement to show a government-issued ID to vote. The Department of Justice tried to prevent South
Carolina from enacting the law as written. Ultimately, the 4th Circuit Court of Appeals upheld it with
changes. It still stands, but now ID is no longer necessary if the would-be voter has a good reason for not
having it. For example, voters who are disabled or blind and can't drive don't often have governmentissued IDs, or an elderly person may not have an ID because they never had a birth certificate. In North
Dakota, which has a similar law, members of Native American tribes who live on reservations may not
have photo IDs because their residences don't have street addresses. The Goal of Conservatives It
remains highly unlikely that the largess of the federal government will return to the role that was
originally intended: weak so that it didn't feel like a return to an oppressive monarchy. Writer Ayn Rand
once noted that it took more than 100 years for the federal government to get as large as it has, and
reversing the trend would take equally as long. Conservatives, who want to reduce the size and scope
of the federal government and restore power to the states, seek to focus on electing candidates who
have the power to stop the trend of an ever-increasing federal government.
Fism bad now.
Kettl 20 (Donald F. Kettl, Ph.D. and master's degrees in political science from Yale University, “America
is so divided because federalism isn’t working”,, 5/07/2021, MW
Because Washington can’t put together a consensus on much of anything, lots of the big decisions are
moving to the states. The states, in turn, are moving increasingly in opposite directions. That has fueled
growing differences between the states, to the point that the government we get depends on where we
live. The result is that the United States of America are now more like the Divided States of America.
Consider Obamacare, formally known as the Affordable Care Act, where the states are playing a mostly
hidden but increasingly central role. In some cases, states have created their own exchanges, while
others have passed the buck to the feds. In all cases, they’ve had to decide whether to expand the
Medicaid program to include more of the poor. In the end, 26 states plus Washington D.C. decided to
expand Medicaid, 14 states decided not to, and 10 are going down a hybrid road. That means that
poorer Americans receive different health care depending on where they live. Madison’s grand plan to
bring peace between the states, in fact, has created vast inequality among them The differences
stretch into how health insurance gets managed. Last year, residents of Wilmington, Del., paid $449 for
the most basic Obamacare plan. In Philadelphia, just 30 miles away, the cost was 18% less. This year,
premiums in Wyoming, West Virginia, and Vermont are twice as high as in Rhode Island, Minnesota, and
Michigan. The big differences have nothing to do with Medicaid expansion, since all of these states
except Wyoming decided to expand Medicaid. The inequalities, rather, are the product of how state
governments and insurance companies manage insurance differently in different places. That’s the
result of the system Madison designed. But it’s worked out just the way Alexander Hamilton feared,
without enough common ground to pull the nation together.
Federalism fails.
Kettl 20 (Donald F. Kettl, Ph.D. and master's degrees in political science from Yale University, “America
is so divided because federalism isn’t working”,, 5/07/2021, MW
That makes Alexander Hamilton’s warning — putting too much power in the hands of the states would
cripple America’s ability to act as a nation — even more important. Differences are growing between
the states. And the consequences for America’s ability to act in concerted fashion are becoming ever
more harsh in an increasingly globalized economy. Hamilton argued that the ability of the country to
thrive depended on having a national government strong enough but accountable enough to call the
shots on important issues. We don’t need to have Washington call the shots on everything, even if it
could agree on calling the shots about anything. But relying more on the states frames a fundamental
choice. We can embrace Madison’s vision, preserve a strong role for the states, but get even more
unequal results. Or we can accept a stronger role for Washington. That would mean that the right
would have to surrender its leverage over health care from the states — and that the left would have to
trust Washington to enforce auto emission standards. And it would also mean that the feds would have
to find a way to get things done, without getting trapped in endless gridlock.
Federalism Ba – Laudry List
Federalism – laundry list of bad impacts
DLC , 1-07-2015, "," No Publication,
Critics of federalism observe that it results in inefficiencies, redundancy and policy failure. Hurricane
Katrina is now an iconic case of how multiple levels of government and overlapping jurisdiction can
result in catastrophic failure. Federalism also permits state policies that may undermine the interests
of nearby states. Consider the case of a state where gambling is legal situated next to a state that
prohibits it. The latter state’s attempt at regulating public morality and criminality may be
undermined as its citizens and criminal elements flock to the state that has legalized gambling.
Federalism is also criticized for creating a political environment that can result in a race-to-thebottom in terms of goods and services provided by state governments. As states compete for
business and investment, businesses can forum shop for states with the lowest taxes, fewest
regulations and best business climate. This puts states in competition with each other and can exert
downward pressure on taxes (which may contribute to a greater quality of life for citizens through
better schools and hospitals) and regulations (which may result in healthier environment and safer
products). Finally, to those who extol federalism’s virtue in bringing democracy closer to its citizens
through greater local control, critics point to cases where federalism has actually reinforced injustice
and undemocratic practices. The perseverance of racial segregation in the southern states for almost
one hundred years after the end of the Civil War is a glaring example.
Federalism is bad – inequality, fragmentation, and social issues
Doig 9 - Jameson Doig, a faculty member at Princeton University, 1961-2007; visiting professor at
Dartmouth College, 2008-2009. Publications include New York:the Politics of Urban Regional
Development, with Michael Danielson (U California Press, 1982); Leadership and Innovation, with Erwin
Hargrove and others (Johns Hopkins University Press, 1987); Empire on the Hudson (Columbia University
Press, 2001); articles on Canadian and American politics. Main teaching interests -- American public
policy; public administration; comparative federalism, 2009, “The Benefits & Dangers of Federalism”
A federal system may have a similar advantage in other fields -- for example in trying distinctive
strategies to undertake stem-cell research, to obtain prescription drugs, to treat those who are dying,
and generally in the field of social services. As Justice Kennedy suggests in the quotation above (he is
borrowing from Woodrow Wilson and Justice Brandeis decades earlier), states may serve as important
"laboratories for experimentation". Yet perhaps the benefits are overstated, and some disadvantages
may be lost to sight. For example, will the devolution of responsibilities in a federal system sacrifice
values of equality and social justice, because of differences between rich and poor regions? Will those
values and others be diminished when states and provinces are given more power, because citizens of
these limited regions may be less tolerant of minorities in their midst? (The history of the U.S. South
and the treatment of native peoples by Canadian provinces offer sobering examples.) Will states and
provinces compete against each other in destructive ways, undermining the economic-development
strategies of all? Moreover, it might be argued that states and provinces often lose their capacity to take
a broad view of social issues because individual industries and groups have undueinfluence there
(influence that is lessened when action is pushed up to the national level); those who study the role of
tobacco in North Carolina, or mining interests in Montana and British Columbia, may wonder if
devolution and deference to localized sentiment will be mainly a route to warped social values and
diminished democratic vitality.
Federalism Bad – Racism
Federalism allows for racism and structural violence to be ignored, Flint proves
Dr. Tony G. Reames, 1-19-2016, "When federalism fails: EPA knew about Flint,"
The “EPA did it’s job…” these are the words of the Environmental Protection Agency (EPA) Administrator
Gina McCarthy on the Flint, Michigan lead-poisoned water crisis. State and local officials are rightfully to
blame for what has happened in this community of just under 100,000 residents, which has been
steadily losing nearly 50% of it’s population since 1960. The median household income in Flint is
$24,834, nearly half Michigan’s $48,411 median household income. Furthermore, 41.5% of residents live
below the poverty line in this majority African American city (56.6% Black, 35.7% White, 3.9% Hispanic).
Although the head of the Michigan Department of Environmental Quality (DEQ) has already resigned,
calls for additional resignations and even criminal prosecution of government officials, including
Governor Rick Snyder, are continuing. But how far up the chain does the blame go? That’s a great
question, and I’m glad you asked. Unfortunately the answer is not an easy one. Now here is where
federalism rises to the occasion. Our system of federalism sets up a separation of government levels
that becomes very convenient in cases like this. Susan Hedman, the head of EPA’s Region 5 which covers
Michigan, says her department was made aware in April 2015 that Flint water was not being treated
with chemicals to prevent lead leaching and avoid water contamination. However, the agency did not
alert the public of this concern. Yet, they did follow “proper protocol” by repeatedly prompting
Michigan’s DEQ to implement chemical treatment. According to Hedman, “it is important to understand
the clear roles here, communication about lead in drinking water and the health impacts associated with
that, that’s the role of DHHS (Department of Health and Human Services), the county health department
and the drinking water utility.” Often, federalism allows the different levels of government to blame
each other for inaction and oversight as they typically operate in silos rather than in concert with one
another. At which level of government should the blame lie? In my opinion, all, for various reasons. In
this case, the state and federal governments must own their responsibility to uphold the standards
embedded in their names, quality and protection. This sad saga continues.
Federalism Bad – Economy
Federalism creates ineffective governance—impedes economic recovery/hurts
Meyerson 9 Harold Meyerson, the editor-at-large at The American Prospect and a columnist for The
Washington Post, November 19, 2009 (“Fed Up With Federalism,” The American Prospect, Accessed
online at, Accessed on 7/28/12)
Conversely, liberals have argued for the right of the nation to move beyond its federalist constraints
during those periods when they controlled the national government (the 1930s and, especially, the
1960s). And during the late, lamentable Bush presidency, conservative justices on the Supreme Court
frequently forbade the states from enacting stricter regulations on businessthan those that Bush's
administration had put in place. The love of federalism is a sometime thing; its critics and champions
switch places depending on who is in power at which level of government. But the problem with our
allegedly ingenious federal system is not simply that half the time, if not more, it is an effective way to
protect all that is biased and unfair in the American nation. The problem is also that federalism
inherently subverts a coherent national response to many fundamental challenges the United States
faces, at a time when other major nations -- our competitors in an increasingly global economy -- face
no such structural impediment. Given the sheer size of America and the distinct cultural identity of its
many regions, federalism has always made a certain amount of sense. The abolition of the slave trade
and the legalization of gay marriage had to beginsomewhere. As the rise of national government,
transportation, and media have eroded regional identities, traditions, and isolation, however, more
conservatives than liberals have found a refuge in federalism. But even though federalism is more often
the refuge of reactionaries than of visionaries, it has an even deeper flaw: setting the nation at crosspurposes with itself, and never more so than during a recession. *** There is a classic algebra problem
in which water pours into a bathtub from the tap at a specified rate but also exits the tub at a
different rate because someone has neglected to stop the drain. If you know the rates, you should be
able to figure when the water will rise to a certain level. During a recession, the United States becomes a
version of that bathtub. The federal government is the tap. The state and local governments are the
drain. That's no way to fight a recession. When investment, production, and consumption are all in
decline, the only way to keep the economy from shrinking is for the federal government to deficit
spend and create a stimulus. But while the federal government pours money in, the state and local
governments, which cannot deficit spend, see their tax revenue shrinking, so they cut spending, raise
taxes, or both -- taking money out of the economy. America's distinct brand of federalism inherently
impedes an economic recovery. Consider the state with the biggest tap and the biggest drain:
California. The sum total of the federal tax cuts for Californians included in last year's Bush
administration stimulus legislation and this year's Obama administration stimulus came to $15.5 billion
for the years 2008 to 2010 -- money desperately needed to boost consumer spending in the midst of the
worst downturn since the Depression, says Jean Ross, executive director of the California Budget
Project. But the sum total of state tax increases enacted by the California Legislature and signed into law
by Gov. Arnold Schwarzenegger in 2008 and 2009, Ross says, came to $12.5 billion for the years 2008 to
2010 -- money desperately needed to keep public services in California from grinding to a halt in the
midst of the worst downturn since the Depression. "The state negated 80 percent of the feds' tax cut,"
Ross says. "And the cuts and the increases pretty much targeted the same lower-income groups." Nor
were the negations limited to tax cuts. Ross calculates the federal government's direct aid to education,
its block-grant programs and other education-related expenditures for California total $9.5 billion from
2008 to 2010. The state government's cuts to K-12 schools, community colleges, the California State
University, and the University of California add up to $17.4 billion for the same years. California leads
the fiscal--disaster pack, but it is anything but alone. A September paper from the Center on Budget and
Policy Priorities reports that since the recession began, at least 41 states and the District of Columbia
have slashed their budgets for a wide range of services -- 27 for health care, 25 for aid to the elderly and
disabled, 26 for K-12 education, 34 for higher education, and some states for all of these. Forty-two
states have reduced wages to state workers through layoffs, furloughs, and salary cuts. At least 30 states
have raised taxes during the same period. "All of these steps remove demand from the economy," the
center concludes. They "reduce the purchasing power of workers' families, which in turn affects local
businesses." Without the Obama stimulus, which appropriated roughly $140 billion to the states to
reduce their budgetary shortfalls during 2009 and 2010, these numbers would be even worse -- though
keep in mind that $140 billion in federal funds isn't engendering growth; it's merely offsetting state
cutbacks. The center estimates that the federal bailout enabled states to reduce their budget gaps by 40
percent. But with state financial shortfalls in those two years coming to a whopping $350 billion, that
leaves $210 billion in unrecompensed state budget shortfalls, which the states have to make up by
cutbacks or tax hikes or financial gimmicks. Dean Baker and Rivka Deutsch of the Center for Economic
and Policy Research estimate that the cutbacks and tax hikes of cities, counties, and school districts in
2009 and 2010 will come to an additional $15 billion. So how much does the government's stimulus
come to when we subtract the amount the states and localities are taking out of the economy from the
amount the feds are putting in? The two-year Obama stimulus amounted to $787 billion, of which $70
billion was really just the usual taxpayers' annual exemption from the alternative minimum tax, and
$146 billion was actually appropriated for the years 2011 to 2019. That leaves $571 billion that the
federal government is pumping into the economy during 2009 and 2010. Subtract the amount that state
and local governments are withdrawing from the economy (they have a combined shortfall of around
$365 billion, but let's say they do enough fiscal finagling so that the total of their cutbacks and tax hikes
is just $325 billion), and we're left with $246 billion. At $787 billion, the stimulus came to 2.6 percent of
the nation's gross domestic product for 2009 and 2010 -- not big enough, but a respectable figure. At
$246 billion -- the net of the federal stimulus minus the state and local anti-stimulus -- it comes to just
0.8 percent of GDP, a level lower than those of many of the nations that the U.S. chastised for failing to
stimulate their economies sufficiently. But other major nations don't have federal systems that turn
them into unstopped bathtubs in times of recession. They have states and municipalities, to be sure,
but either the responsibility for funding most functions of government resides with the national
government, or, as in Japan, state and local governments are not required to run annual balanced
budgets. In China, which probably has had the most robust recovery of any major nation, taxes and
spending for everything are set in Beijing (including the lower tax rates for provinces in which
manufacturing for export is the main economic activity). In France, taxing and spending has been
controlled by the national government at least as far back as Louis XIV. In Britain, funding for local
government also comes from the national government; "local taxation," says Thomas Barry, first
secretary for economic affairs in the British Embassy in Washington, D.C., "is a very small fraction of the
total tax burden in the U.K." Such is obviously not the case in the U.S. The national government alone
funds defense and the two great social programs, Social Security and Medicare, created at moments
(1935 and 1965) when liberals controlled both Congress and the White House. But state and local
governments, which can't run deficits, remain the primary funders of education, transportation, local
infrastructure, and public safety and split the cost of health care for the poor with the feds. What this
means is that the governmental impediments the United States encounters during a recession are far
greater than those encountered by the other major nations with which we compete in the ever more
global economy. What this means is that our federal system is, in this very significant particular,
massively dysfunctional. *** This September, the Los Angeles County Metropolitan Transportation
Authority, the agency that runs LA's growing subway system and its far-flung bus lines, struck a novel
deal with an Italian rail manufacturer. In return for its purchase of 100 light-rail cars from the company,
the MTA got the company to agree to locate a unionized factory in Los Angeles. Problems with the
manufacturer caused the deal to collapse, though, and the MTA is now searching for another company
that will build the trains in Los Angeles. The agency's attempt to bolster local industry with a Buy-LA
policy has encountered opposition, however, from the Los Angeles Times, which noted in an editorial
that federal funds available for buying clean, green rail transport are denied to states and cities that
insist on making the product locally. To be sure, the Obama administration has allotted billions of dollars
to incubate an electric-car industry. But it is not insisting on domestic content, nor has it cut a deal with
a foreign manufacturer to locate a factory here, as Los Angeles is trying to do with rails and as Southern
states have done for years with foreign automakers. The federal government doesn't do that. Well,
our federal government doesn't do that. Foreign federal governments do that all the time. China has
spared no expense to attract foreign manufacturers, routinely abating their taxes, holding wages in
check, offering help to construct new facilities. In the U.S., states and cities woo foreign and domestic
investors with an array of tax and zoning incentives; right-to-work states promise to hold down wages,
too. But the kinds of sweeping guarantees that national governments can offer are beyond the capacity
of states and localities to promise, much less deliver. China, for instance, is halfway through a stunningly
ambitious project to build 100 university science parks roughly modeled on North Carolina's fabled
Research Triangle. On average, the parks, according to the testimony of attorney Alan Wolff to the
U.S.?China Commission, are 150 percent the size of North Carolina's triangle. "China has taken our
model and expanded dramatically on it," Rick Weddle, CEO of the Research Triangle Foundation,
testified to the commission. "We toured a research park in Suzhou that is a joint venture between the
Chinese government and Singapore. We wouldn't even think about that." The industrial policies of
American states are dwarfed by those of foreign nations, while the one entity with the resources to
compete with foreign nations -- the federal government -- stays out of the game. States seek new
factories while the federal government shuns domestic content requirements. As with stimulus policy
during recessions, state and federal industrial policies seem totally at cross-purposes. Federalism also
enables federal and state governments to punt the responsibility for funding politically contentious
programs to each other -- a pretty good way of ensuring that the programs will end up underfunded.
A quick way to grasp the contrasting levels of political power wielded by the elderly (considerable) and
the poor (negligible), for instance, is to look at how the government funds their health care. Medicare,
for seniors, is entirely federally funded. Medicaid, for the poor, has the responsibility for its funding split
between the federal government and the states. Despite the fact that Medicaid is nominally a national
program, the levels of financial support that states allot it vary considerably. During the current
recession, many states have opted to slash Medicaid benefits, even as federal Medicare benefits have
largely stayed intact. The perverse consequences of this hybrid funding have seldom been clearer than
during the health-care reform battle, in which the Senate Finance Committee's bill to open Medicaid
rolls to more Americans without pledging full federal funding for the program has presented recessionwracked states with a problem they could do without. After Gov. Schwarzenegger stated that the
increased cost to his state could amount to $8 billion annually, Sen. Dianne Feinstein of California, who
backs the health-reform efforts, announced that she couldn't support a bill that increased the state's
costs. (In the House bill, the federal government picks up almost all of the states' increased Medicaid
costs.) Federal mandates on states that must balance their budgets during recessions are problematic
policy, and they illustrate the buck-passing that is inherent in the federal system. Historically, the price
for this feature of federalism has been paid neither by the federal nor state governments but by the
poor. In regulatory matters, the gap between federal and state standards can work as Brandeis thought
it should, but it can also enable businesses to comparison shop for the lowest level of regulations. While
federalism is an effective way to create multiple governmental power centers in a nation, it creates a
system that powerful private players can game. The diffusion of power inherent in federalism works
best when power in the private economy and civil society is also diffused, so that, for instance, business
will get push-back from labor when it attempts to arbitrage the gaps between state and federal law. The
boundary between federal and state functions in the United States has always been a flexible one, and
one that has moved slowly and haltingly toward the federal level throughout most of the nation's
history. By the standards of nearly every other major nation, however, and increasingly by the
standard of common sense, the United States retains a system of government that frequently
subverts its own policies and enables federal and state governments to negate each other's
endeavors. Federalism has its points, but in a growing number of ways, and especially during a
recession, it makes no damn sense at all.
Federalism not sustainable
Impossible to sustain federalism
is the Rex G. Baker and Edna Heflin Baker Professor of Constitutional Law at the University of Texas at
Austin Harvard Journal of Law & Public Policy, 01934872, Spring2008, Vol. 31, Issue 2]
It is clear that, at least in some circumstances, the advantages of decentralized policy making outweigh
its costs. That does not mean, however, that federalism can usefully be instituted and maintained as a
matter of constitutional law enforceable by courts. Discussions of federalism often focus on the national
and state governments being assigned separate "spheres" of power by the Constitution, with each being
supreme in its own sphere. The reality, however, is that divided supremacy is an oxymoron. (4) Policy
making power is not a physical object that can be divided into non-overlapping parts. Virtually
everything in the real world has some connection to or impact upon everything else. The federal
government cannot have full power over interstate trade, for example, if the states have full power over
intrastate trade, which competes with and otherwise affects interstate trade. The Constitution deals
with this problem by providing that when federal and state regulations conflict, as they often and
inevitably do, the federal regulation prevails. (5) It is the federal government, therefore, that is
the true sovereign, and, as American historyamply illustrates, the scope of
its ultimately unchecked sovereignty has consistently expanded over time and will almost
certainly continue to do so in the future.