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2006-7 National Service Topic Guide

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Introduction

The federalism disadvantage partially stems from the Tenth Amendment to the Constitution, which states that powers not explicitly given to the federal government are reserved for the states. The federal government possesses only those powers enumerated by the Constitution. Included among these enumerated powers are the powers to raise and coin money, the power to spend that money, the power to regulate foreign and interstate commerce, and the power to provide for the defense of the United States.

Generally speaking, the states are responsible for policy action on domestic issues, including education, welfare, health, and criminal justice where the Constitution does not provide authorization for the federal government to act.

The purpose of federalism, striking a balance between the powers of the state and the federal government, is to ensure that one branch of government, particularly the federal government, does not obtain too much power. The trick is to determine precisely how and where to strike the balance.

Authority for Federal Government Action

The Constitution specifies that Congress has the power to make all laws "necessary and proper for carrying into execution" the enumerated powers. Congress can take actions that it can justify are necessary to carry out the enumerated powers. Congress, for example, could argue it needs to support to protect mental health to support the development of the economy or to protect the general welfare. How closely connected the plan of action is to the enumerated powers is something that is determined by the courts, and at least recently they have not let Congress stray too far.

The second clause in the Constitution that provides authority to the federal government is the Commerce Clause. Commerce is the exchange of goods and the commerce clause gives the federal government authority over the exchange of goods for two reasons: (1) to prevent the states from taxing each other to death and (2) to ensure the national economic welfare. The specifics of what Congress can and cannot regulate under the commerce clause is subject to debate. 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.

Federalism is even more complicated because of the existence of the Fourteenth Amendment. The Fourteenth Amendment states that the Bill of Rights applies to the states. States can't, for example, take away the freedom of speech (First Amendment) or the right to own a gun (Second Amendment) in their states. Protecting citizens against intrusions of rights by the states therefore becomes a legitimate federal interest and trying to determine when it is legitimate for the federal government to act against the states to protect rights is a tricky issue.

In tension with these grants of authority to the federal government "over" the states (The Enumerated Powers, The Commerce Clause and the Fourteenth Amendment) is the Tenth Amendment. The Tenth Amendment says that all powers not explicitly given to the federal government, such as over health and education, are reserved for the states. This operates in tension with the Commerce Clause or the Fourteenth Amendment if Congress attempts to regulate education, claiming that education or is important to the economy, or of the courts (or potentially even the Congress), claims that a particular education policy or program is violating individual rights.

The Tenth Amendment does not prohibit the federal government from acting in areas in which it does not have explicit authority, even when it cannot justify its actions based on an enumerated power or the Fourteenth Amendment. After all, the federal government has the power to tax, and hence the "power of the purse." This gives the federal government a lot of power. In DOLE V. KANSAS (1987), the Supreme Court ruled that the federal government had the authority to get states to comply with federal regulations by threatening to withhold federal funding from the states. So, even if the federal government does not have the authority to act directly in a particular area, they can take advantage of other powers they have to get the states to do what they want.

In addition to conditioning funds on the states taking action in areas that the federal government may not otherwise have authority to act in, the federal government can also act in those areas by developing programs in those areas. In 1913, the passage of the 16th Amendment gave the federal government the authority to tax income directly (they no longer had to collect the taxes through the states). This has enabled the federal government to raise a ton of money, giving the federal government even more leverage over the states. In 1935, the Supreme Court in UNITED STATES V. BUTLER, interpreted the power of the federal government to spend money to include spending for the general welfare. This means that the federal government can spend money on things other than those explicitly mentioned in the Constitution. Consequently, the federal government started to support programs such as public health care programs, which were traditionally the states business. During the Johnson administration, hundreds of new federal programs were created and the money that was made available to the states had conditions attached to it.

While the federal government can uses its authority to indirectly act in areas that are reserved to the states, one thing it cannot arguably do is sue or permit suits against the states. The Eleventh Amendment to the Constitution says that states cannot be sued by citizen's of another state or power in federal courts. The extent of immunity that sovereign states should be provided is subject to debate and is an important part of the federalism link debate.

Federal and State Power as Defined By the Supreme Court

Articulating a Specific Link

Determining precisely what powers the federal government has vis‑a‑vis the states is not simple. As just a couple of the examples discussed above reveal, the lines are not easy to draw. When Congress passes a national law that potentially intrudes in an area of state authority, the states often challenge the decision and the Supreme Court has to decide whether or not the particular policy violates state's rights. The debate about which policies, and which types of policies, may violate states rights makes up the "link" debate to the Federalism Disadvantage.

Some of the particulars of the federalism debate are useful to understand. Understanding the particulars will help you to explain your link and why your link is unique.

Many debaters will just read a link card that says that the federal action undermines the federal‑state balance and then read a states power/federal‑state power balance good card. But, the federal government acts all the time. It will not be possible to win a unique link, at least a unique link that is persuasive, to "federal action." To be persuasive, you need to be able to argue why the plan is an illegitimate application of the Commerce Clause, the Equal Protection Clause, or any other power. As an affirmative, you should be able to defend your plan with specific evidence that says that it is a legitimate extension of Congress' Commerce Clause power or the Equal Protection Clause. If you have these cards, and you can explain these arguments, you will be forced to try to sell an ultra‑generic federalism link.

I will not review every specific power that the federal government has vis‑a‑vis the states and discuss every limitation that the states have retained vis‑a‑vis the federal government. I will, however, review a number of important limitations that the Supreme Court has identified and also discuss some of the powers that the Supreme Court has said that they do not. Affirmative plans that act in ways that the Supreme Court say threaten state power link to the Federalism Disadvantage and those that act in ways that the Supreme Court says are legitimate do not link very well to the Federalism Disadvantage.

Prohibited Powers

The Supreme Court, as referenced in the evidence above, has also been generally supportive of protecting the balance in favor of the states. In this section I will outline some of those prohibitions in greater details.

Prohibitions on Federal Commandeering. "Commandeering" refers to the idea that the federal government can require the states to implement federal laws. In two instances, the Court has prohibited this. First, in 1992, in U.S. V. NEW YORK, the Supreme Court said it was unconstitutional for Congress to require the states to "take title" (assume ownership) of nuclear waste. In 1997, in U.S. V. PRINTZ, the Supreme Court struck down a provision of the Brady law, which "commandeered" state officials to implement a background check for those purchasing weapons. The only exception to this doctrine stems from the Court's decision in RENO v. CONDON (2000). In this case, the Supreme Court said that Congress can regulate the states when the states act as private companies. In this case, the states, who were selling information in their driver's license databases, challenged a federal law that placed limitations on those sales. The Supreme Court said that the regulation applied to the states because they were acting as a private enterprise.

There is a growing debate about the power of the federal government in a Post-911 world to use state and local police forces to conduct searches, seizures, and detentions in the war on terrorism. Many states, and commentators, argue that such activity violates commandeering restrictions. I suspect that limiting federal authority in this area will be a popular affirmative case.

Prohibitions on Violating Sovereign Immunity. "Sovereign Immunity" refers to immunity from lawsuits by "sovereign" powers (governments). As is the case with the Commerce Clause decisions, the Court's decisions relating to sovereign immunity have not been consistent from a historical lens, but are presently leaning toward the protection of state sovereign immunity. In 1989, the Court ruled in PENNSYLVANIA V. UNION GAS that the states could be sued in federal court. In 1997, in SEMINOLE TRIBES V. FLORIDA, the Supreme Court reversed PENNSYLVANIA V. UNION GAS and ruled that Congress cannot abrogate state immunity under its article I powers and authorize lawsuits against states who do not enter into interstate compacts that required them to develop gaming agreements with Indian tribes.

In the Seminole Tribes decision, the Court established a two prong test to determine if Congress has the authority the abrogate states' immunity. Under this test, to abrogate the immunity, Congress must do two things. First, Congress must explicitly say in the legislation that it intends to abrogate the states' immunity. Second, The Court has to decide that Congress passed the statute "pursuant to a valid exercise of power," such as the Commerce Clause or the Fourteenth Amendment.

In 1999, in ALDEN V. MAINE, the Court ruled that states could not be sued in their own courts for violating federal law. The Court also ruled in 1999 in FLORIDA V. COLLEGE SAVING bank that Congress exceeded its authority when it authorized private suites against states for patent infringements and Lanham Action violations.

In a recent decision, ALABAMA V. GARRETT (2000), that is particularly relevant for this debate topic, the Supreme Court decided whether Title I of the Americans with Disabilities Act (ADA), as it applies to state governments, is constitutional when it abrogates states' Eleventh Amendment Sovereign Immunity rights.

To determine the Constitutionality of the ADA, the Court looked at the test it established in the Seminole Tribes decision. The first prong of the test was clearly met. Congress explicitly said that it intended to abrogate the state's sovereign immunity. Determining whether Congress met the second part of the test was more difficult.

The reason why it was more difficult to determine if Congress met the second part of the test is because the Congress relied on Section Five of the Fourteenth Amendment, which gives it the power to enforce constitutional rights. It is inherently difficult to determine whether or not Congress is properly exercising its authority under this test because, according to the Supreme Court in BOERNE v. FLORES, Congress only has the power to prevent the states from violating individual rights; Congress does not have the power to determine what constitutes a violation of a right. For example, once the Court says that free speech includes the right to yell "fire" in a crowded theater, the Congress can stop the states from passing a rule from prohibiting that, but the Congress cannot absent action by the courts, define free speech rights to include the right to yell "fire" in a crowded theater.

It is not hard to understand that it is difficult to clearly distinguish when Congress is enacting legislation to stop an existing rights violation versus when it is enacting legislation to define, or expand, an already articulated right. Even if "discrimination" is constitutionally prohibited, it is difficult to determine when discrimination is present and whether or not the Court has accepted a precise articulation of discrimination as an already‑defined form of discrimination.

In addition to meeting these two tests, legislation passed under the authority of Section Five of the Fourteenth Amendment must not protect against insignificant rights violations by the states. Congress must marshal evidence of widespread discrimination.

Although the legislation clearly met the first prong of the Seminole test ‑ it explicitly said that Congress intended to abrogate the states' immunity ‑ it did not meet the second. Congress, the Court said, was not properly acting under its 14th Amendment powers.

To make the determination that Congress was not acting under its 14th Amendment powers, the Court relied on its decision in CITY OF CLEBURNE V. CLEBURNE LIVING CENTERS. In this case, the Court said that "people with mental retardation" are not part of a suspect class that would require the city to possess a compelling state interest when it denied permission for a group home. Instead, since the individuals were not members of a suspect class, the city only needed to show a rational state interest. In this instance, the Court argued that Alabama has a rational state interest in dismissing the employees because of their disability and that Congress, therefore, had no authority to override the state's sovereign immunity.

Limitations on Regulation Under the Commerce Clause. The amount of power that Congress has under the Commerce Clause has been debated for years. In 1976, the Supreme Court held the NATIONAL LEAGUE OF CITIES V. USER, that the Congress did not have the authority under the Commerce Clause to enforce the minimum wage and overtime provisions of the FAIR LABOR STANDARDS ACT against the states. Nine years later, in GARCIA V. SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY (1985), the Court said that Congress had this authority under the Commerce Clause and that states could protect their own powers through bargaining in the political process. In that decision, justice Rehnquist predicted that the Court would once again have to move to protect the interests of the states.

The Court did not wait too long. Supporting the values of federalism, six years later, in GREGORY V.ASHCROFT (1991), the case held that the mandatory retirement age for state judges in Missouri did not violate the federal AGE DISCRIMINATION IN EMPLOYMENT ACT.

As discussed, in 1995, the Supreme Court announced a limited interpretation of the Commerce Clause and refused to let Congress regulate crime around schools. In 1999, in JONES V. UNITED STATES, the Court extended the Lopez decision, arguing that federal criminal law could not be used to prosecute a defendant when an arson took place on a personal residence because the personal residence was not involved in interstate commerce. Similarly, the Court extended the Lopez decision in 2000 in the UNITED STATES V. MORRISON decision, in which the Court held that Congress did not have the authority to provide a civil remedy for assault in the VIOLENCE AGAINST WOMEN ACT (VAWA).

Permitted Powers

Conditional federal grants. In 1987, Kansas challenged a federal law supported by then Secretary of Transportation, Elizabeth Dole. The law, which is still on the books, requires states that accept highway funds to raise the drinking age to 21. This raised the general question as to whether or not the Federal Government could get states to act by conditioning funding on particular actions by the states. The Supreme Court said Yes.

Funding. The federal government is free to provide the states funding to support various federal programs. This is generally considered to be part of the federal government's power to spend for the general welfare.

The fact that the Supreme Court has afforded Congress power in some regards (grants, conditional spending, etc) does not mean that you can't argue on the negative that teams that implement their plans through these mechanisms violate federalism. Litigants who argued against these types of regulations made strong arguments as to why they undermined state power. You can find evidence from the dissenters in these Supreme Court cases, from law review articles written against the decision, and from the amicus briefs submitted to the court by appropriate parties.

The trick to winning links where the Court has ruled that the link isn't "true" is finding the evidence, but winning that the link is unique. After all, if the Courts have already upheld policies that are similar to the plan, why is the plan going to have any overall impact on the federal‑state balance? This is a good question that affirmative teams that are familiar with the Supreme Court's federalism jurisprudence will be happy answering.

If the affirmative is prepared to make these link‑specific uniqueness answers, the negative needs to run a counterplan. In this case, the negative will have to run a counterplan to have the Supreme Court reverse its original decision and hold that type of implementation is unconstitutional. In these instances, this is the negative's only hope of winning a unique link to their Federalism Disadvantages in these instances.

Legalism and State Power

One way of arguing the federalism link and internal link is to take a legalistic approach and argue that the federal government simply has no authority to implement the plan in an area of power that is largely reserved to the states. This is the approach that has been discussed in this section so far and it is the best way to approach the link debate because it is what most accurately reflects what the disadvantage is about.

The other way of debating the link is to simply argue that when the federal government acts in a particular area this weakens/undermines the authority of the states to act in that particular area. As a result, the states are weakened overall and strong states are needed to prevent tyranny and respect diverse policy preferences. This way of articulating the link can often be more difficult because the federal government often acts in those areas, but you can usually tell a general enough story to win this type of argument.

Researching Links

The best places to find federalism links is in the more "legalistic" sections of law review articles that you may have a tendency to skip over in order to get to the solvency take‑outs or turns. In these more legalistic sections is where you find the evidence that says that particular policies are not legitimate uses of Commerce Clause power or are not legitimate means to achieve Equal Protection.

The Uniqueness Debate

As the discussions of the "permitted" and "prohibited" powers reveals, the Supreme Court has reigned in federal government action vis‑a‑vis that states. In terms of how the federal government can act, the Supreme Court has restricted the federal government's ability to commandeer the states, to require them to implement federal programs, and to hold the states liable. In terms of where the federal government can act, the Supreme Court has restricted their ability to act in the area of crime control and education. There is a lot of general evidence that you can find that says that the Supreme Court is acting to protect state rights . Usually these decisions are 5‑4, with the "federalism five" (Pryor) of Rhenquist, O'Connor, Scalia, Kennedy, and Thomas winning against the nationalist four of Stevens, Souter, Ginsburg, and Breyer.

Although the Court has had to act to reign‑in the legislature in some instances, both the legislature and the executive have generally acted in a way that is concerned with protecting state interests.

In recent history, Republicans have had a greater commitment to state autonomy than Democrats. One of the first things that Ronald Reagan did when he was elected was to give state officials greater stature and visibility than federal officials. A series of block grants were among the first legislative initiatives of the Reagan administration.

In May of 1998, President Clinton issued Executive Order 13803, which revoked Reagan's Executive 12875 and Clinton's earlier Executive Order which ratified and supplemented the Reagan Order. Order 12875 even added a waiver process that in the context of Order 12875 represented another enhancement of state power. The only thing that Order 13803 retained, however, is the waiver process. This put the federal government in the driver's seat. Congressional backlash over the issue of the order provoked such controversy that Clinton rescinded it! For amazing federalism evidence, you should search databases from May‑September, 1998.

The Bush II administration was supposed to issue an executive order that would create a federal watchdog agency to determine whether any federal law or regulation deals with an issue that could be better handled by the states. I did a little research to try to determine if the order was ever written or signed into law, and it appears that it was not. Nonetheless, as a Republican, Bush is unlikely to support the passage of policies that threaten the powers of the states. A more liberal Congress, may, however.

There was some evidence produced immediately after September 11th that claimed that the terrorist attacks would result in massive support for centralizing power with the federal government. This does not seem to have come to pass, however.

Most recently, Congress passed a law that allowed the claim of Terry Schiavo’s family to be heard in federal courts. Many argue that this was a violation of federalism. Also, the Supreme Court recently struck-down the Juvenile death penalty, which still existed in 18 states. There is strong, recent evidence that debates whether or not each of these policies is a violation of federalism.

The Impact Debate: Federalism Good

There are a number of reasons that federalism is arguably good. In the debate, you should be sure to extend at least one piece of evidence that makes each of the following arguments. If you win some of these arguments you may be able to turn back the affirmative case by impacting your disadvantage into their harm area.

‑ Federalism promotes public participation. Since state governments are "closer to the people," individuals are arguably more likely to participate in state government politics; they are more likely to know their representatives, to think that the issues are important, and to have a more direct stake in the outcome.

‑ Federalism alleviates social and ethnic tensions. Individual states in a federalist system are supposed to be able to make their own policy choices that diverge from the national norm. As long as those choices are allowed, individuals are more likely to have their preferences protected and live as they wish. If they are not able to make these decisions for themselves, they may decide to succeed or fight other groups whose interests and preferences they may see as mutually exclusive.

‑ Federalism encourages policy experimentation and innovation. If different states adopt different policies, each will likely adopt some policies that work and some that fail. Other states, and the national government, can learn from that experimentation. If the federal government only adopts a single policy, and it fails, there may be no alternatives on the horizon.

‑ Federalism provides opportunities for a number of individuals and groups to have power. If the states all have their own strong policy‑making apparatuses and areas of authorities, it prevents the tyrannical concentration of power in one group.

The Impact Debate: Federalism Bad

Although federalism has a number of benefits, it also has some drawbacks.

‑ States have adopted racist policies in the past. The argument that states will act in a racist way or violate civil rights is not as good of an argument as it used to be, but there is still evidence that the states will act against minority interests if there is not the threat of federal government intervention.

‑ States will race to the bottom. The argument is that the states will provide the lowest amount of social and environmental protections possible in order to keep their tax base low and attract industry.

‑ State governments are more corrupt and tyrannical than the federal government. This is also a weaker argument than it used to be, but there is evidence that state governments are corrupt and inexperienced when it comes to policy making. There is also evidence that corruption makes state government officials more likely to ignore the policy preferences of their constituents than the national governments.

‑ Federalism undermines business confidence. If all of the states adopt different policies and regulations it will make it more difficult for businesses that do business in multiple states to have a profitable enterprise.

‑ Federalism promotes ethnic conflict. Federalism, when modeled abroad, may discourage other groups from forming strong nation states. As a result, there may be more succession and ethnic conflict.

Debating Threshold Issues

Although federalism is an important concept, its impact in a debate round can be difficult to win. The reason that this is the case is because it is difficult to debate the impact of a single violation of state's rights or authority. Given the multitude of state and national policies, it is difficult to believe that even if the federal government illegitimately ignores the state's interests in one area the whole federalist system will collapse.

There are two ways to get around this problem. First, you should claim a modeling impact. Claim that other countries model our federal structure and that the plan, even though it is just in one area, would be a bad signal to other countries. Find recent evidence from other sources discussing federalism in that region that claims that "now is the critical time" for federalism in that area. Three, impact the disadvantage in crime policy at the state level. Argue. There is a card under permutation answers in the states counterplan section that makes the argument that when the federal government acts in a particular policy area the states don't. You could also read some of the evidence in the counterplan solvency section that explains why it is good for the states to act in the area of crime policy.

A note about federalism and this topic:

Federalism will get much less play on this year’s topic than on previous domestic topics. The reason is that in the resolution, “its authority” refers to the authority that is possessed by the federal government. Unlike past domestic topics, it is arguably not topical to directly reduce state and/or local authority.

Although it is not topical to directly reduce the authority of state and local governments, affirmatives, looking for more solvency, and negatives, looking for more disadvantage links, could argue that the restriction on authority also applies to the states. For example, if the Supreme Court were to rule that searches of body cavities in prisons without probable cause were unconstitutional, that protect would also extend to state and local prisons. This is what the link evidence in the federalism disadvantage that is included in this volume is discussing.

As long as the negative is well-prepared to defend the states counterplan, most affirmatives are unlikely to try to claim advantages that stem from the effect of the plan on state constitutional action. If however, negatives are unprepared with such arguments, affirmatives are likely to take advantage of this weakness.

Federalism Disadvantage Shell

A. UNIQUENESS: NEW FEDERALISM REVOLUTION

Patrick Gary, law professor, University of South Dakota; SETON HALL LAW REVIEW, 2006, pp. 851-2.

The revival of federalism has become a defining theme of the modern Court. Commentators have described the Court's decisions as sparking a "federalism revolution." This so-called revolution comes after a long dormancy. From the late 1930s to the early 1990s, constitutional provisions related to federalism were largely ignored. However, under the leadership of the late Chief Justice Rehnquist, the Court has attempted to revive the constitutional role and authority of the states.

B LINK: DOMESTIC ISSUES ARE RESERVED FOR THE STATES

Ellis Katz, AMERICAN FEDERALISM: PAST, PRESENT, AND FUTURE, 1997, p. http://usinfo.state.gov/journals/itdhr/0497/ijde/katz.htm.

The powers granted to the federal government are relatively few in number and deal mainly with foreign and military affairs and national economic issues, such as the free flow of commerce across state lines. Most domestic policy issues were left to the states to resolve in keeping with their own histories, needs and cultures.

C. INTERNAL LINK FEDERAL EXERCISE OF POWER REDUCES STATE POWER

John Yoo, law professor, SOUTHERN CALIFORNIA LAW REVIEW, 1997, p. 1352.

It is important to note that Justice Kennedy did not differentiate between laws that regulated states qua states and those that regulated private parties in areas that might be thought to lie within state power. Following Chief Justice Rehnquist's majority opinion, Justice Kennedy's concurrence treated the exercise of any federal power as a diminution of the power of the states and hence a reduction of state sovereignty

D. A HEALTHY RESPECT FOR FEDERALISM PREVENTS TYRANNY

ALASKAN LAW REVIEW, December 2004, p. 230

Perhaps the principal benefit of the federalist system is a check on abuses of government power. "The "constitutionally mandated balance of power' between the States and the Federal Government was adopted by the Framers to ensure the protection of "our fundamental liberties.'" Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.

2010-11 Policy Resources

Textbooks

2006-7 National Service Topic Guide

Introduction

Authority for Federal Government Action

Federal and State Power as Defined By the Supreme Court

Prohibited Powers

Permitted Powers

Other Links

Legalism and State Power

Researching Links

The Uniqueness Debate

The Impact Debate: Federalism Good

The Impact Debate: Federalism Bad

Debating Threshold Issues

Federalism Disadvantage Shell

Video Lectures

Hot Files

Related Files

Related Evidence

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