Related: Federalism Disadvantage (download); Debating Disadvantages
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, criminal justice, and arguably the environment (at least when the issues primarily involves a state and local concern),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 the environment 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. Does water pollution (or at least some forms of water pollution) affect interstate commerce?
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 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 water pollution problem (the disaster in Flint, Michigan?) 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. They could tell the states they won’t provide certain funds unless the states implement a particular water regulation.
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 water quality 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.
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 ((arguing that environmental issues (and water issues in particular) should be left to the states)) 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.
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.
The Uniqueness Debate
There is a lot of evidence that the Supreme Court has reigned in federal government action vis a vis that states. There is also evidence that the Biden administration is promoting state leadership on environmental issues.
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.
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.
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.
-US federalism is modelled. A common impact in debate (since we need to get to large impacts) is that other countries model US federalism and that federalism is needed in another country, or set of countries to avoid a civil war. This is one good way for the negative to deal with threshold issues (how much of a loss of federalism causes the impact?), because they can claim that another country is making a decision now about whether or not to proceed with federalism as part of their governing structure.
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 environmental policy at the state level, arguing that state leadership on environmental issues (and water issues in particular) is best. 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 environmental policy.