Tags: states, states counterplan,

Stefan Bauschard

Introduction

I think that as long as you properly conceptualize, write, and execute the states counterplan in a given debate, you can win almost every negative debate with it.

I think this is true for three basic reasons:

(1) Theory. Affirmative debaters are bad at erecting theoretical restraints on the negative and judges are reluctant to enforce any theoretical restraints that affirmatives erect.  Nearly unlimited negative fiat means negatives can write counterplan texts to circumvent almost any affirmative arguments against the counterplan.

(2) Reality. The states are largely the domestic policy makers.  There is almost no literature that speaks to the need for federal action in a world in which all of the states (and federal territories) essentially implement the substantive mandates of the affirmative plan. It's quite rare that the state action cannot solve the affirmative advantages as well as federal action can.

(3) Offense. It is much easier for the negative to win offense against federal action than it is for the affirmative to win offense against state action. This is true for three reasons. One, disadvantages to federal action, particularly politics, are substantively stronger and have bigger impacts than disadvantages to state action. Two, the negative can spike almost any disadvantage to the counterplan they know is coming in the counterplan text.  The need to have all parts of the plan be topical substantially limits the ability of the affirmative to spike negative disadvantages in the plan text. Three, the structure of the debate is rigged against the affirmative's ability to debate counterplans -- negatives have 13 minutes in the block to answer affirmative disadvantages and defend their own while affirmatives have only a small amount of time in the 1AR to answer negative disadvantages and defend/develop their own disadvantage(s) that they linked to the counterplan.

In this post, I will explain how to conceptualize, write, and execute the states counterpan in any given debate taking advantage of Reality, Theory, and Offense to win the debate. Although at times I will discuss them separately, the interplay of the three brings even more power to the counterplan.

First, let's start with the basics -- writing the text.  I put this section under (1) Theory because the ability to write counterplan text(s) in the ways described is dependent on the negative winning the theoretical legitimacy of doing so.

There are two things that you need to keep in mind when writing a states counterplan text.

One, you need to essentially have the state governments do what the affirmative has the federal government do in the plan without involving federal action.  For example, let's look at the following plan from the Gonzaga Head Start affirmative:



The simplest first step is to appropriately replace "United States federal government" with "the 50 states governments, relevant federal territories, and appropriate non-USFG actors in Indian Country."

The second step is to make sure that you appropriately word any part of a counterplan that deals with Block Grants.  Block Grants are simply grants of financial assistance that the federal government gives to state governments to implement various programs. You don't want to have the state governments fund the block grants themselves, but you can have the states simply increase their funding for those programs so that they are not dependent on the federal block grant money, or an expansion of it.

So, at this point, the counterplan would read in the following way:



Theory

After you have written a basic text to replace federal action with action by other, primarily state, actors, you need to add additional items to the text that will address any answers the affirmative may make against the states counterplan. 

It is easiest to make these additions after you have debated the states counterplan a number of times and know what many of the affirmative answers are, but let's walk through some common answers and discuss what you need to add to the counterplan text to address them. In the next section, I will talk about additional answers to these arguments.

Federal coordination and data sharing. Teams will argue that the federal government needs to act to coordinate the flow of information regarding the workability and implementation of the plan. To solve this, add: "All relevant identified actors will establish a center to coordinate the distribution of all relevant information and to share information amongst themselves."

Federal information. Some teams will argue that the federal government has some unique information that will make the program work particularly well. To solve this problem, add: "The federal agencies responsible for the program will make all relevant program information public and the states will take advantage of this information when designing and implementing the program."

Federal leadership. Teams will argue that if the federal government acts it will establish leadership on the issue, mobilizing other actors to act. I think that this can usually be beaten without adding anything to the counterplan text (see below), but if you don't think you can, you can have the Congress pass a resolution saying they support the efforts of the states to address the issue the plan does without passing any specific legislation. The counterplan is still net-beneficial because passing a resolution doesn't link to federal spending, federalism, and probably not politics (there is evidence that passing legislation uniquely expends political capital). The addition would be similar to: "Congress will unanimously pass a resolution supporting the action of the actors."

There is something unique about the federal program. Some teams will argue that there may be some unique way the federal government implements or runs the program that makes federal action uniquely important. To solve this, add: "All programs run by relevant counterplan actors will be modeled after the federal program."

Federal standards.  Some teams will argue that the federal government has some important standards in place that the federal program will need to comply with.  To solve this, add: "All programs implemented by relevant counterplan actors will be designed and implemented in a way that meets relevant federal standards."

States fail at implementation. Some teams will argue that the states are bad at implementing particular programs. To solve this, add: "All relevant counterplan actors will implement the "social services" the same way that the plan/federal government does."

Federal credibility/investment.  Some teams will argue that the federal action is critical to attract investment by private businesses.  This is a common answer to the states counterplan for the broadband affirmative. To solve this, add: "The state governments will adopt legislation guaranteeing 25 years of financial support for the counterplan."

State spending conditions. Teams sometimes argue that the states currently have spending restrictions that prevent participation of particular individuals in anti-poverty programs. For example, a team could argue that a particular state or group of states has restrictions that prevent illegal immigrants from accessing Medicaid. To solve this, add: "All relevant identified actors will eliminate all restrictions on participation by any persons in poverty in the identified program."

Federal spending conditions. This year teams will frequently argue that there is some federal law that prevents spending money for some social service program. The most popular one is probably the Hyde Amendment, which blocks the expenditure of federal funds on abortion service.  The big problem with this argument is that these conditions apply to the expenditure of federal funds, not to the expenditure of state funds. To solve this, simply add: "The 50 states and relevant federal territories will refuse all federal funding for X social service (in this case abortion) and provide all of the funding themselves."

Federal jurisdiction. Some teams this year will argue that only the federal government can provide social services because the area where the services are provided is under the jurisdiction of the federal government.   Where this is true (the military, natives), this is the most difficult counterplan response to answer.

There are two ways to deal with this through changes in the counterplan text.

First, the negative can include a provision in their counterplan text that devolves federal authority over the area in question to the states.  This is originally done through an extension of the Lopez precedent.

The "Lopez precedent" deals with an extension of the precedent established in the U.S. v. Lopez decision. To understand the counterplan, it is important to understand the basics of the case and the decision.

In 1994, Congress passed the Gun Free Schools Act, which made it a crime to carry a gun within fifty yards of school property. The Supreme Court, in U.S. V. Lopez (1995), struck down the Act because, they argued, gun crimes in schools were unlikely to "substantially" hurt the economy and therefore  ”substantially” affect interstate commerce. Through this decision, the Supreme Court established a standard that states that a piece of federal legislation deemed legitimate through reference to the Commerce Clause must have a substantial relationship to interstate commerce/the economic well‑being of the nation.

The counterplan stems from a 1995 article by Stephen Calebresi in the Michigan Law Review in which he argues that Congress should extend the Lopez precedent to reduce the authority/jurisdiction the federal government has over the states.

Obviously, devolving control of the military to the states would not be an "extension" of that precedent, but plenty of negative teams have gotten away with making this argument because affirmatives have been unable to generate basic common sense answers.

Second, negative teams that do not want to take such a radical route can simply have the states provide the social services to the relevant actors under federal jurisdiction. For example, the negative could have a counterplan text that read, "The states will offer social services to all individuals residing in Indian Country" and explain that the people impacted would simply access the services within the states. Negative teams may also want to add, "All relevant eligibility restrictions on the state provision of these services will be removed."

State spending.  This summer, a number of disadvantages have been written that argue it is bad for the states to spend more money. All of the disadvantages focus on why it is bad for particular states to spend money and generally take three forms. One, state spending on social services trade-off with spending on particular programs, such as state environmental protection programs. Two, new state spending on particular social services (the ones in the counterplan text) trades-off with other social services, increasing poverty and turning one of the case advantages. Three, new state spending leads to tax increases that threaten the economy.

There are two basic ways to make address these state spending arguments through changes in the counterplan text. First, you can exclude specific states in the counterplan text. For example, if the team you are debating has a California spending disadvantage, simply add, "Except California" to the counterplan text. This will create a small solvency deficit to the counterplan, but most affirmative teams will not be able to quantify it, let alone use it to outweigh a disadvantage that the negative is winning

Second, you can spike the trade-off or the tax increase. You can fiat that the states "change necessary law" to allow deficit spending (solves both the trade-off and tax increase arguments) or specify a different trade-off or a tax increase (as long as you are prepared to defend tax increases).

The court will rule the counterplan unconstitutional/outside the authority of the states.  While many of these additions to the counterplan text are starting to appear silly/ridiculous, few are unconstitutional. Others, however, may be, and if the states undertake unconstitutional/illegal actions, those actions may be challenged and subsequently struck down by various courts. The negative can solve this by adding: "The Supreme Court will uphold all actions in the counterplan as consistent with the Constitution and relevant law."

So, now our states counterplan might look like this:

The 50 state governments, governments of relevant federal territories, and appropriate  actors in Indian Country should provide the necessary funding to expand early childhood education and child care assistance for persons living in poverty, including, but not limited to: accreditation resources and incentives, and full subsidization of nationally accredited child care through Even Start, Early Head Start, and Head Start programs.  Relevant non-federal actors should also act to ensure that any funding that would be provided by the federal government under the Child Care and Development Block Grants is made available by these actors through their own resources. All relevant identified actors will establish a center to coordinate the distribution of all relevant information and to share information amongst themselves. The federal government will make all relevant program information public and the states will take advantage of this information when designing and implementing the program. Congress will unanimously pass a resolution supporting the action of the actors and programs implemented by relevant counterplan actors will be designed and implemented in a way that meet relevant federal standards. All relevant counterplan actors will implement the "social services" the same way that the plan/federal government does. All relevant identified actors will eliminate all restrictions on participation by any persons in poverty in the identified program. The 50 states and relevant federal territories will refuse all federal funding for X social service (in this case abortion) and provide all of the funding themselves and guarantee it for at least 25 years. The Supreme Court will devolve any authority needed to implement the actions described in the counterplan text to the states and uphold any state action undertaken as part of the counterplan.

I labeled this section "Theory" because there are obviously parts of the counterplan that are theoretically controversial.  I'm not going to go into detail of the theory arguments as I will cover those in a forthcoming article, but you can read a good summary of the objections here.

The point I will make here is that the more you add to the counterplan text the greater the risk that you will lose to a theoretical objection to all or part of the counterplan. You do not want to add these provisions unnecessarily.

Reality

Second, let's move on to a discussion of Reality (such a great segway from this counterplan text :). 

While the counterplan seems fantastical, there are two elements of reality that play strongly to the hands of the negative.

First, social services programs are primarily designed and implemented by the state governments. These programs are often conceived of by the federal government, and supported generously by federal financial resources, but it is the states that design and are responsible for almost all social service programs.  On balance, the states are way more likely to be able to solve in most in stances than the federal government.

Second, it is the states that implement the federal social service programs. Often, affirmative teams will respond to the states counterplan by arguing that the states fail at implementation.  Well, if the states fail at implementation, then the plan can't solve either.

Now, let's apply the combination of theory/the parts of the counterplan that have been added to the counterplan text and the arguments discussed in "reality" to generate a cohesive set of answers to the 2AC arguments that have been previously discussed.

Federal coordination & data sharing. 1) Counterplan solves -- the counterplan establishes data sharing and coordination; 2) Irrelevant -- we've conceded that the plan works and the counterplan simply implements the mandates of the plan. There is no vale to additional data sharing; 3) Irrelevant -- there is nothing to coordinate.  All of the states do the same thing.

Federal information. 1) Counterplan solves - it makes it available; 2) Irrelevant -- states design and implement social service programs, so there is no reason that they would not possess adequate information to expand  said program.

Federal leadership. 1) (Counterplan solves --we have the Congress say the counterplan is a good idea); 2) No value to leadership -- The only reason leadership is good is because it compels other actors to act, but we simply fiat that the actors act; 3) Simultaneous action by all 50 state governments would establish significant leadership at the state level that would make federal leadership unnecessary

States fail at implementation. 1) Counterplan solves -- we fiat the states implement the same way that the federal government would; 2) Applies to the plan -- normal means implementation is for the states to implement federal social service programs. The plan can't solve if the counterplan can't solve.

International modeling. Some affirmative teams (see the various abortion public funding affirmatives) will argue that other countries are more likely to model and adopt the plan if the U.S. federal government does the plan. 1) Counterplan solves – if all 50 states acted at once, this would be noticed internationally and seen as endorsed by the U.S., even if not the USFG, 2) the USFG isn’t the most credible international actor at the moment – none of their evidence assumes this contemporary geopolitical environment; 3) Counterplan solves – it has Congress issue a statement saying that they support the action of the counterplan

Morality.  Some affirmative teams (see UNT's food stamp affirmative) argue that each agent has its own morality responsibility to take action.  This argument cannot be addressed in the counterplan text, so negative teams will have to make a strong set of substantive answers, including a standard defense of why governments shouldn't act on moral claims.

The states won't act. 1) Counterplan solves ---we fiat that all of the states act.

The big thing that you want to emphasize throughout the debate is that none of the affirmative solvency arguments made against the counterplan assume that all 50 states act, that the states guarantee the counterplan exists as long as the plan exists, that they all act simultaneously, that they all coordinate their action, and that they model the counterplan on the current federal program and federal standards.

Offense & Defense

When discussing affirmatives and the states' counterplan, many people explain that "the states counterplan solves that case."  In order to win the counterplan, however you need to approach this consideration from a more sophisticated point of view.

The question you need to answer is this: If the states were to essentially implement the non-federal mandates of the plan, what advantages (including 2AC add-ons) would the counterplan solve entirely, solve partially, and not solve at all.

You need to answer this question to the best of your ability and as honestly as possible. Why? Because your answer to the question will determine where you must allocate your time winning critical defense that will allow your offense to outweigh. For example, if you determine that the counterplan cannot solve the first advantage at all, you need to devote substantial time to making defensive arguments against that advantage throughout the debate. If you determine that the counterplan can solve the second advantage, devoting time to answering that advantage throughout the debate is not important.

What about offense?  Your potential offense is any disadvantage that links to federal action and not to state action. The most common/useful include politics, federal spending, and federalism.

Strategizing -- getting to where your offense outweighs the affirmative's offense outweighs in the 2NR begins when strategizing the 1NC.

The 1NC obviously needs to include the base counterplan text and probably the three disadvantages that have just been referenced.  I say three because if you are relatively slow you may not have time to present all three disadvantages, the counterplan, and have the time to provide the necessary defense against the affirmative advantages that you do not think the counterplan can solve.  If this is the case, run fewer off!

When developing your defense, you need to allocate your time so that you spend the most time/make the best arguments against the advantage(s) you don't think the counterplan will end up solving.  You should, however, make at least some arguments against all of the advantage to give yourself the option of going for the "DA outweighs case" in case the counterplan doesn't work out and so that you don't show your hand too far in advance (make it obviously you are planning to go for the counterplan).

The other thing you need to think about for the 1NC is how many of the above suggestions you need to incorporate into the counterplan text. As a default suggestion, it never hurts to include the parts of the counterplan that involve state collaboration and publicity, as those are common negative arguments, but the more you add the more likely it is that the negative will make and go for theoretical objections (they may have no other choice) against the counterplan.  So, you need to think about whether or not it is likely *necessary* to add the parts to defeat particular affirmative advantages and to think about what parts you may need to add.

The more complicated decision-making and strategy occurs after the 2AC speaks.  At the end of the 2AC, you need to make a meta-assessment as to whether or not you think the counterplan can solve enough of the advantages that the affirmative read in the 1AC and may have read in the 2AC (add-ons).  Based on your answer you need to decide the following:

a) Is it necessary to kick the counterplan (are there disadvantages attached to it that you cannot answer)? In most instances, there is no harm to simply extending the counterplan even if it doesn't end up solving very much because it can only help and even if it solves very little because it just ends up being additional case defense.  If you do decide to extend it, however, you must spend very little time on it because it won't get you very far at the end of the debate.

b) What disadvantages are you going to extend? There is only a limited amount of time in the block, probably only enough time to extend one disadvantage if you are also extending the states counterplan.  You need to pick the disadvantage that you have the best chance of winning and probably one where the impacts turn any advantage the counterplan doesn't solve well.

c) What case defense do you need to extend against advantages the counterplan won't solve? You need to spend a particularly significant amount of time against any add-ons advantages that the 2AC read that the state's counterplan doesn't answer.

It is absolutely critical that you divide the block (2NC/1NR) in a way that enables you to extend the states counterplan, at least one disadvantage, and case defense where needed (and maybe some places it is even not needed in the world of the counterplan because it will give you the 2NR option of going just for the disadvantage and the case arguments.

You also want to make sure that you close off any affirmative option of going for theory by thoroughly answering any theoretical objections the affirmative makes to the counterplan. The more your counterplan does in terms of theoretically questionable additions, the more thorough you'll want to be in answering affirmative objections.

One place that you do not need to make a lot of arguments is answering the permutation.  Unless you drop it, permutations will not defeat the states counterplan because disadvantages to federal action demonstration that both actions (the plan and the counterplan) should not be done together.  Affirmative teams cannot write a permutation to avoid the link to the disadvantages without severing out of their original plan.

I think there are three basic levels of theory issues related to the states counterplan. First, can the negative fiat that all 50 states act simultaneously. While more controversy has arisen recently related to the legitimacy of this, negatives will be able to win that they are able to do this in most debates. The second issue relates to multi-actor fiat. In addition to fiating the state governments, can the negative also (in the same counterplan text) fiat additional actors -- the territories, Indian reservations, Congressional resolutions, and Supreme Court action? Third, can the negative add in a number of measures that fiat through real-world solvency deficits the affirmative can make against the counterplan? The greater number of these practices/measures that the counterplan takes advantage of, the more theoretically controversial it is and the more time the negative is going to need to defend the practices in the block.

If you decide to go for the counterplan in the 2NR, the time allocation and order of the 2NR is determined by how well you think the counterplan can solve the affirmative advantages that are still in play in the debate.  If you think the counterplan can solve most of the affirmative advantages, you should start with the counterplan and win that it (largely) solves those advantages. You should then spend time winning a risk of the disadvantage that is the net-benefit to the counterplan.  As long as the counterplan all of the advantages to a large degree, most judges will conclude that even a small risk of the disadvantage outweighs.

If you do not think that you can win that the counterplan solves some important case advantages, you need to start with your offense -- the disadvantage that is the net-benefit to the counterplan, win a large risk of that disadvantage, and spend time explaining why the impact to that disadvantage turns the advantages that you are likely losing that the counterplan solves. You should then quickly extend the counterplan, focusing why it solves the advantage that it likely solves (even if it is only 1 or 2 advantages) and then spend the rest of your time extending defensive arguments on the other advantages that the counterplan does not solve.

Regardless as to how significant a role the counterplan plays in the 2NR (whether or not you argue it solves (almost) all of the affirmative advantages or if it solves just solves just one or two, you should make sure you still do impact calculus. In the first scenario, your impact calculus will be along the lines of arguing that you win a huge risk of the DA, that the counterplan solves some of the case, and that the disadvantage outweighs and turns the other advantages. In the second scenario, you argue that the counterplan solves most (or all) of the case advantages and that any risk of the disadvantage outweighs.

Conclusion

While this discussion has been largely general, in my experience these adjustments to the counterplan text and application of the arguments made in the "Reality" section will enable the affirmative to defeat most affirmative answers. Check out this post of all of the specific answers made against the state counterplan to date that are available in the camp files.

Addendum: Affirmatives that Use with the Courts As Their Actor

Some affirmatives that you will debate will extend protection of particular rights through the courts. For example, they may have the Supreme Court say that the 8th Amendment to the Constitution protects a right of prisoners to access health care. These affirmatives may try to beat a typical states counterplan by arguing that the federal government needs to send a strong signal by extending this right.

If you anticipate that to be the affirmative strategy, your best bet is to run a state constitutionalism/state courts counterplan. The counterplan is similar to the states counterplan, but rather than just passing a statute (law) to codify the right, the counterplan has all of the state legislatures pass a constitutional amendment to their state constitutions to ensure that the rights are protected. The negative can easily win that the state courts will enforce these provisions, as the state courts have been very active in securing progressive rights.

In addition to politics and general federalism net‑benefits, the affirmative could also claim a state constitutionalism net‑benefit. The negative could claim that while the counterplan enhances the role of state constitutionalism/state courts, the plan undermines them. The negative can also use the Hollow Hope disadvantage as a net‑benefit by claiming that social movements are more likely to succeed if they are drawn to the state courts than if they are drawn to the federal courts and subsequently repulsed. This is a pretty good counterplan against any case that adopts a liberal rights reform.

There is also very strong evidence that claims that when the state courts and the federal courts afford identical rights participation (the permutation), that undermines the independence of the state courts and the development of what is referred to as "judicial federalism" -- strengthening state judicial systems.

The best for the affirmative to beat the counterplan is to run a case to protect rights for the mentally ill at the expense of another federally protect rights (such as First Amendment rights).   Only federal courts can make this ruling because the states cannot reduce rights below a federal floor that has been established. State constitutions, legislatures, and courts can provide greater rights than the federal government in any area, but they cannot reduce those rights beyond the federal floor.

The concept of the federal floor is an important idea to understand because often affirmatives will read evidence against your state constitutions counterplan that says that the state courts can't act because the federal courts have already ruled that there is no right to X. This is irrelevant though because state constitutions and courts can increase rights beyond the federal floor.

Additional Resources

Camp States Counterplan Answers (111 pages, loads a little slow)

States Counterplan Lecture -- Antonucci
Answering States -- Ed Lee
States Counterplan
States Counterplan Answers
The Federalism disadvantage essay (from a previous topic)
State Constitutions/Courts CP (in Federalism Strategy Guide)

Federalism DA
Politics DAs