STATES COUNTERPLAN

GENERIC
S
 S – more durable
State reform is more capable of transforming public opinion---creates durability and solves
rollback
Gerken 17 – Professor of Law (Heather, “We’re about to see states’ rights used defensively against Trump,” Vox,
https://www.vox.com/the-big-idea/2016/12/12/13915990/federalism-trump-progressive-uncooperative)//BB

There is one, final way in which states

can be a tool for progressive values. Progressives have long thought of
federalism as a tool for entrenching the worst in our politics. But it’s also a tool for changing our politics .
Social movements have long used state and local policymaking as an organizing tool , a rallying cry , a
testing ground for their ideas. The most remarkable example in recent years has been the same-sex marriage movement,
which depended heavily on state and local sites as staging grounds for organizing and debate . That process
may explain why those equality norms now run deep enough that the Supreme Court’s ruling on same-sex
marriage in Obergefell — a decision that would surely have caused intense controversy not so long ago — was
greeted with enormous enthusiasm in many quarters and opposed in precious few. Today we see efforts to push
through other core parts of the equality project through state and local sites, including immigration reform,
policing, sentencing, health insurance, and the living wage movement, just to name a few. Those pushing reform at the
state and local level understand the crucial lesson from the same-sex marriage movement: If you want those policies to stick,
they have to come from the bottom-up, not the top-down . And it’s useful for reformers to work through
institutions rather than standing on the sideline and jeering. Social movements need pragmatic insiders, forging compromise from within, not just
principled outsiders, demanding more and better from without. Progressive federalism isn’t a cure-all, of course. The president is more than
capable of causing harm with a stroke of the executive pen. Heavily indebted states and cities may find resisting the federal government too
expensive. And cities and state governments have other important business to address. But progressives would be foolish to treat
the cities and states in which they live as
nothing more than enclaves sheltered from some of the national policies
they don’t like. States and localities can resist policies that jeopardize the rule of law, they can create
incentives for moderation and compromise when one party or another goes to the extremes, and they are the means for
building shared ideals going forward. Federalism is for everyone. It’s time that liberals took notice.

States have a powerful effect on prosecutors, police and sentencing judges

Wright 2 – professor of law @ Wake Forest U (Ronald, “How the Supreme Court Delivers Fire and Ice to State Criminal Justice,”
Washington and Lee Law Review, 59.4)//BB

The state appellate courts are not the only state institutions to become more engaged in criminal justice since
the days of the Warren Court. State legislatures have also filled the territory that the Supreme Court refused to occupy. Some
trends in the legislature have occurred outside the field of criminal procedure in the field of substantive criminal law and in laws setting
(and funding) punishments. As Darryl Brown and Bill Stuntz point out, the expanded reach of the substantive criminal law and the
increased severity of punishment have countered many of the libertarian effects of Warren Court procedural rulings.' Although these statutes
do not speak directly to procedure, they have powerful effects on the work of police, prosecutors, and sentencing
judges .
 S – follow-on
The counterplan solves and short-circuits any “fed key” argument with abstention,
nullification and follow-on
Gardner 18 - Assistant Professor of Law University of Washington School of Law (Trevor, “Right at Home: Modeling Sub-Federal
Resistance as Criminal Justice Reform,” 46 Fla. St. U. L. Rev., Lexis)//BB

Momentarily setting aside the merits of their respective assessments, it is important to first note that both Stuntz and Shulhoffer frame the relative
influence of local and federal government on the penal system in dichotomous terms. Indeed, if either of these leading voices was right in his
diagnosis of the source of penal dysfunction, the basic blueprint for criminal justice reform within the federalist system would be a simple matter
—either a bottom-up or top-down legal and administrative campaign. However, both perspectives ignore the policy and administrative diversity
at each of the two levels of government. Crime policy and corresponding enforcement at the local level, for instance, is not wholly good or bad.
This should be taken as a fairly modest claim given that there are tens of thousands of local government units.15 The story of criminal federalism
is further complicated by the multiple and varied roles the federal government plays in the modern criminal justice system. Contrary to
representations in the criminal law literature, the federal government has served as a catalyst for many of the first-order
problems in criminal justice, problems such as prison proliferation, overcriminalization, and over-reliance on police departments. Put
simply, the federal government is in many ways responsible for contemporary criminal justice dysfunction.16 Over the past 40 years, it
has expanded the scope of criminal liability, increased the scope of criminal surveillance, and facilitated
the militarization of police departments.17 Consider specific examples. In 2014, the U.S. Department of Justice directed the
distribution of military equipment to the Ferguson, Missouri, police department while in the same moment insisting that public officials in
Ferguson adopt “community-oriented” policing programs in the wake of the police shooting of Ferguson resident Michael Brown.18 In the field
of immigration, the federal government has spent nearly all of the past two decades pursuing the incorporation of every state and local police
department into the federal immigration enforcement system. Over the same period, it has clung to the role of chief architect of the War on Drugs
the federal government is not the savior , but instead a frequent
despite overwhelming evidence of the war’s futility. If
bad actor in the emerging narrative of criminal justice reform, reform advocates face a difficult question : who or what will
reform the federal government? To credibly answer this question, criminal justice reformers must discard
conventional assumptions regarding the relationship between criminal federalism and social justice. Rather than
reducing state and local governments to sites of penal oppression, reformers should appreciate these sites for
their capacity to function as a check against unbridled federal ambition in the field of criminal justice .19
This point falls in tension with certain political dogmas. Given that the most heralded political
achievements in support of the socially and economically marginalized (e.g., the War on Poverty, the Civil Rights Movement,
and, most recently, the Affordable Care Act) were based in federal statutes and managed by federal agencies, the notion that
state and local government activism can help to deliver a more equitable and more effective system of
criminal justice will strike many as misguided. But these achievements obscure the role state and local
governments now play in breaking the national fever for punishment . Accordingly, this Article captures the legal and
administrative tools at the disposal of sub-federal governments as part of a larger toolkit provided within the framework of criminal federalism.20
It endorses sub-federal government resistance within this framework as critical to challenging conventional
penal practices and the cultural norms that sustain them . It would be a mistake, nevertheless, to romanticize the relationship
between sub-federal governments and democracies, and criminal justice reform. Regressive crime policy is just as likely to be enacted by the
Ferguson City Council as it is by Congress. The Article therefore endorses sub-federal government resistance as an instrument rather than as an
ideology, as a tool of reform rather than as a philosophy of good crime governance. It demonstrates that when deployed

opportunistically, subfederal resistance can serve as a singularly effective method of

opposition to the pernicious problem of overcriminalization . The Article’s normative theory of sub-federal resistance in the
interest of criminal justice reform develops in four parts. Part I describes the incremental growth of the federal government’s influence over state
and local criminal administration over the past four decades, initially through the War on Crime and more recently through the incorporation of
local police departments into the domestic and national security fields. This short but compelling history provides a helpful backdrop upon which
to assess the significance of recent efforts by sub-federal governments to stem the tide of overcriminalization, often
despite vehement federal government opposition. Part II presents a process model of criminal justice reform by way of state and local
government resistance to federal criminal initiatives. It captures this process in four stages: i) sub-federal government abstention
from a federal enforcement initiative, ii) the nullification of the federal initiative as a result of enforcement

abstinence, iii) mimicry of this method of resistance by other sub-federal governments,21 and iv) the abolition of the
federal initiative by way of repeal of the underlying policy . The model is in part a distillation of
four sub-federal decriminalization movements that openly challenged federal crime policy: the immigrant sanctuary movement, the marijuana
decriminalization movement, sub-federal government opposition to Patriot Act enforcement, and sub-federal opposition to Prohibition
enforcement in the 1920s.

Follow-on is uniquely likely in CJR

Gleason ’19
(Patrick Gleason Vice President of State Affairs at Americans for Tax Reform, a Washington-based advocacy and policy research organization.
“As 2020 Presidential Hopefuls Debate Criminal Justice Reform, The Most Important Action Is In States” 6/19/19.
https://www.forbes.com/sites/patrickgleason/2019/06/19/as-2020-presidential-hopefuls-debate-criminal-justice-reform-the-most-
important-action-is-in-states/)$

Tennessee is not the only state where criminal justice reform legislation has been introduced this year.
Nevada lawmakers recently passed Assembly Bill 236, a sentencing reform measure that, like those enacted in Tennessee, will yield
significant taxpayer savings. “This legislation establishes crisis intervention training and alternatives to jail for those with behavioral health needs,” writes Americans
for Tax Reform’s Laurel Duggan about Nevada's AB 236. “This will ensure that this population receives the help they need to no longer threaten public safety. The
bill creates graduated sanctions for parolees, replacing the system in which technical violations result in reflexive imprisonment...The resulting decrease in
incarceration is projected to save taxpayers $543 million over ten years.”
Pennsylvania lawmakers, unlike those in Tennessee, are
still in session. Criminal justice reform advocates in the Keystone State are encouraging lawmakers in
Harrisburg to pass Senate Bill 637, legislation that would have professional licensing and permitting boards consider applicants’
criminal records individually and in the context of the profession they seek to enter , as opposed to the current practice
in many instances of barring them automatically. If SB 637 is passed by the Republican-controlled Pennsylvania General Assembly and signed by Governor Tom
Wolf (D), Pennsylvania licensing boards will discern the relevance of criminal convictions for the profession at hand. Boards will retain the right to reject an applicant
based on criminal convictions relevant to the license. Proponents of this reform see this as a significant improvement to the current approach, in which former
offenders are blacklisted from the job market and evidence of rehabilitation is not taken into account.
Policy Innovation Through Federalism Dozens of states passed criminal justice reforms that served as a
model for the First Step Act signed into law by President Trump last year. The experience in those states
demonstrated how increasing alternatives to incarceration for non-violent offenders can save state
taxpayer dollars, reduce recidivism, and keep families together, all without jeopardizing public safety.
“Overall, in the 10 states that have reduced incarceration the most over the last decade, crime has fallen
more than the national average and more than in the 10 states that increased incarceration the most ,” says
Marc Levin—Vice President of Criminal Justice Policy at the Texas Public Policy Foundation. “ Federal policymakers could act on the First
Step Act knowing that it is not an experiment, but rather legislation that is grounded in successful
reforms on the state level. ” Even those who are strictly focused on the federal government should pay attention to what is happening in the states.
Criminal justice reform is one area in particular where state level reforms have successfully
percolated up to the national level . It’s a template for successful policy innovation that more
politicians and candidates would do well to follow. Before taking something national; the success of criminal
justice reform shows that it’s wise to use a few of the 50 laboratories of democracy to first show the
nation that a given policy works and how best to implement.

Their “no follow-on” arguments don’t assume the critical threshold overcome by the CP
Gardner 18 - Assistant Professor of Law University of Washington School of Law (Trevor, “Right at Home: Modeling Sub-Federal
Resistance as Criminal Justice Reform,” 46 Fla. St. U. L.Rev., Lexis)//BB

There is a threshold at which the number of sub-federal jurisdictions that credit an alternative theory of
public security and implement an alternative model of security governance will be large enough to nullify ,
on a national scale , a controversial form of federal criminal enforcement . In response to this setback, the
federal government may indefinitely suspend enforcement —what might be considered de facto abolition —or it
may repeal the legislative provision upon which the enforcement initiative is based . Repeal may be the
result of frustration with enforcement dysfunction, concerns about the legitimacy of the rule of law, or
federal officials having ultimately credited the alternative theory of public security circulating among the
dissenting sub-federal governments.
Success at the state level allows data development and gathering --- causes federal follow-
on
Schuppe 18 – news analyst @ NBC, citing Mark Holden a CJR advocate (Jon, “Criminal justice reform finally has a chance in Congress.
Here's what the First Step Act would do.,” NBC News, https://www.nbcnews.com/news/us-news/criminal-justice-reform-finally-has-chance-
congress-here-s-what-n936866)//BB

President Donald Trump’s support has put Congress within reach of passing the most sweeping set of changes to the federal
criminal justice system since the 1990s, when fear of crime drove the enactment of draconian sentencing practices that shipped hundreds
of thousands of drug offenders to prison. This is no small feat. Reformers have been trying to get this done for years,
but something always got in the way: partisan bickering, election-year politics, ambushes by opponents. Amid Washington
gridlock, the First Step Act stands out. The measure, which could go to a vote during the lame-duck session of Congress between
now and January, contains several changes to the way the federal government treats drug offenders, both those who are in prison now and those
who will face a judge in the future. If it is passed, thousands of federal prisoners would have access to more help preparing for life after the end of
their sentences. Thousands of well-behaved prisoners would win freedom earlier. And thousands of people who are arrested for drug crimes in
the future would become eligible for exemptions from harsh mandatory minimum sentencing laws. Still, the bill stops short of what many
reformers say is needed to curb prison spending, relieve staff shortages and overcrowding, and make the justice system fairer. That is why they
say the First Step Act is exactly that: a start. It’s also worth noting that the federal prison system , with 183,000 inmates, is
tiny in comparison to America’s total incarcerated population of 1.5 million. State prison systems make up the
vast majority of that population, and that is where reform efforts have been spreading for years . Many
states, both red and blue, have cut their prison populations while also seeing drastic reductions in crime. “ The only
reason we’ve gotten to the point of these federal reforms , which we think will be transformative, is the fact
that states have applied them and have data they can point to that can persuade the tough-on-crime
crowd,” said Mark Holden, chairman of Freedom Partners, which makes conservative arguments for criminal justice reform. “It is hard to
argue against that, and it’s all based on data.”

State opposition shapes public opinion and changes norms---results in follow-on

Lemos 11 – Senior Associate Dean for Faculty and Research at Duke Law. Previous Furman Fellow and program coordinator at New York
University School of Law, a Bristow Fellow at the Office of the Solicitor General, and a law clerk for Judge Kermit V. Lipez of the U.S. Court of
Appeals for the First Circuit, and for U.S. Supreme Court Justice John Paul Stevens. She graduated summa cum laude from New York University
School of Law [Margaret, “State Enforcement of Federal Law”, New York University School of Law, 2011,
https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=5183&context=faculty_scholarship]//AV

First, federalism
"increases opportunity for citizen involvement in democratic processes" by locating
decision making authority in multiple, smaller units of government .213 Second, federalism operates as "a
check on abuses of government power" by distributing power among various sovereigns . 214 Finally, interstate
competition over regulatory authority produces better policies, particularly when citizens can "vote with their feet" by moving from state to
state.215 Competition creates incentives for state-level decision makers to tailor policies to fit local circumstances and preferences. Because
"preferences for government policies are unevenly distributed among the various localities, more people can be satisfied by decentralized
decision making than by a single national authority. '216 Regulatory competition also permits states to experiment with innovative policies,217
serving-as Justice Brandeis famously put it-as "laborator[ies]" for the rest of the country.218 1. Promoting Democracy The first
justification for decentralized power-promoting participatory democracy-translates easily from regulation
to enforcement. Enforcement has significant practical effects on the lives of citizens. As such, it is an important site for
democratic input.219 By authorizing enforcement by state attorneys general as well as a federal agency, Congress enhances citizens' ability
to influence public enforcement of federal law. State enforcers may be more accessible and responsive than federal agencies, both because states
are smaller units of government and because state attorneys general tend to be elected rather than appointed. To the extent that federal
agencies are accountable to the people, it is by virtue of their relationship with elected officials such as
the President.220 State enforcement removes the middleman.22 ' State enforcement of federal law also
opens up additional channels for democratic input within the state . As noted above, federal statutes can and sometimes do empower state attorneys
general to enforce rules that state legislatures could have created under state law but did not. In these areas, federal policy makers have recognized the value of state-level treatment of an issue, but state regulators have not acted. At
first blush, such statutes may seem pernicious from a federalism perspective, as they override the state's preference for inaction. However, attention to enforcement as a distinct form of state authority underscores the importance of
breaking open the black box that represents "the state" to reveal the diverse group of state actors within. 222 Independently elected attorneys general may represent different constituencies than other elected state officials because of
political differences, and they may "hear" different citizen voices because of the distinctive ways their offices are set up to gather and respond to citizen complaints. As a result, state attorneys general may pursue initiatives that the
legislature and the governor either overlook or affirmatively reject. This is a virtue of the existing system, not a vice. 223 To begin with, the failure of the state legislature to adopt a particular rule is not reliable evidence of legislative
intent. There are many reasons why legislation may not be enacted even if a majority of legislators and their constituents favor it.224 Indeed, the legislature may not even have considered the rule in question. But enforcement by the
attorney general may be appropriate even if it were clear that a majority of state legislators would vote against the relevant federal rule. State law recognizes various representatives in the judicial, legislative, and executive branches of
state government-including the attorney general. Absent some indication from state law, there is no a priori reason to favor state legislatures as the "real" representatives of the states' citizens. In any event, the attorney general's
authority to enforce federal law is best understood as a default rule that the state legislature could change, either by foreclosing any state enforcement of federal law or by designating a different state actor as the authorized enforcer.
Some federal statutes are explicit in this respect, stating that attorneys general can sue on behalf of the state unless the state enacts contrary legislation. 225 Those statutes reverse the preexisting default, under which the legislature's
failure to act also forecloses enforcement by the attorney general. Such a reversal seems entirely proper when the citizens' federal representatives and their attorney general have both deemed the issue important enough to warrant
action. Given that state enforcement provisions appear primarily in federal statutes designed to protect consumers, the targets of state enforcement are likely to be business interests that are capable of making themselves heard in the
state legislature should the need arise. By shifting the burden of inertia onto such groups, federal law can help promote democratic debate at the state level, ensuring that a statewide policy in favor of nonenforcement is made by the

citizens' representatives (either the attorney general or the legislature) rather than by default 2. Preventing Tyranny and Abuse Things become more complicated when
we move to the second of the traditional defenses of federalism: preventing tyranny . As the Supreme Court has
explained, "[jiust 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. ' 227 Whether the same argument can be applied to enforcement
depends, in large part, on how one defines "tyranny and abuse." Enforcement authority creates a state-level check against
underenforcement by federal agencies.228 Thus, if the federal government ignores certain violations for illegitimate reasons-
targeting Republicans but not Democrats, for example, or African Americans but not Caucasians-the states can level the playing field through
their own enforcement efforts. States can provide a similar corrective for underenforcement by other states . And the
potential for such gapfilling by individual states should reduce the likelihood of nonenforcement at the outset Note, however, that the ratchet only
moves in one direction: toward more enforcement. 230 States can increase enforcement, thereby reducing the risk of discriminatory
nonenforcement and underdeterrence. But state enforcement does not create an effective check against abusive overenforcement by the federal
government or other states. Each state can forgo enforcement itself , but it cannot prevent other enforcers from acting. This
problem is not unique to enforcement authority. For example, states lack the power to repeal the federal
ban on marijuana possession, even if their own laws permit such possession for medical purposes. 231 Nevertheless, the
presence of more permissive state laws can exert a powerful influence on public opinion-and, by
extension, on federal decision makers .232 The same can be said of enforcement. States can object to federal
enforcement practices through private communications with federal agencies or in public statements,
press releases, and amicus briefs . Of course, states can voice such objections regardless of whether they are empowered to enforce
the relevant law. Yet the fact that a state attorney general has authority to enforce federal law in a given
circumstance, but has chosen not to do so, lends a certain gravitas to state-based objections. The existence of
enforcement authority both validates states' connection to the statute and permits state enforcers to gain the expertise necessary for their
enforcement decisions to be taken seriously.

Empirics prove
Head 19 - executive director of the Faith & Freedom Coalition, JD Baylor Law (Tim, “Federal criminal justice reform is now law: What
comes next?,” The Hill, https://thehill.com/opinion/criminal-justice/427087-federal-criminal-justice-reform-is-now-law-what-comes-next)//BB

U.S. Supreme Court Justice Louis Brandeis in the 1932 New State Ice Co. v. Liebmann decision stated that state governments "may, if its
citizens choose, serve as a laboratory ; and try novel social and economic experiments without risk to the rest of the
country.” Perhaps Justice Brandeis stated more than he knew at the moment in describing how change is effected in our democracy. Throughout
our history, the broader federal government has traditionally moved very slowly to reform inefficient and ineffective
policies, while the more nimble and less laborious states lead the way in identifying and correcting failed policies. There is not a more clear
illustration of this principle than the national movement to reform the criminal justice system. The justice reform movement recently celebrated
its crowning achievement at the federal level as President Donald Trump signed the, Formerly Incarcerated Reenter Society Transformed Safely
Transitioning Every Person (First Step) Act. The FIRST STEP Act is the culmination of a ten year bipartisan, bicameral push for reform
and represents the most substantive federal justice reform in a generation. Just as Justice Brandeis described, a national change was possible
because states such as Texas, Georgia, and South Carolina led the way to enact effective reforms that made the public safer,
saved taxpayer dollars, and reduced the revolving door of incarceration. Since 2007, more than 30 states have passed
reforms designed to prioritize prison beds for more serious offenders, reduce incarceration , reduce recidivism
rates, and contain costs. States have achieved excellent results that federal reform hopes to emulate with the implementation of the FIRST
STEP Act. For example, Texas saved its taxpayers over $2 billion while dropping its crime rate to its lowest level since 1968. These results
finally proved to members of Congress and the Trump administration that similar results were possible within the federal
system. Now that the FIRST STEP Act is law, the question becomes what is next at the federal level and what
policy innovations can state governments develop to continue the national momentum toward a more efficient and effective
justice system. The next order of business for implementation of federal reform is for the U.S. Senate to confirm William Barr as Attorney
General of the United States. As Attorney General, Barr and his appointed lieutenants would be responsible for selecting a new director for the
federal Bureau of Prisons and ensuring that the Bureau accurately administers the codified risk assessment system for low-level, non-violent
offenders who are eligible for release, and provide these inmates with the programs to help them safely and successfully re-enter society upon
their release. While the sentencing reforms contained in the FIRST STEP Act were secondary to the prison reforms that are to be administered by
the Department of Justice, further sentencing improvements are possible through the U.S. Sentencing
Commission. The independent Sentencing Commission issues guidelines for sentencing in all federal
criminal cases. Today, the Commission lacks a quorum to function in its duties to administer federal sentencing laws. The acting chair,
Judge William Pryor of the Eleventh Circuit U.S. Court of Appeals is currently awaiting renomination by the White House and confirmation by
the Senate. By once again making Judge Pryor the chair of the commission, the Trump administration and the Senate can follow through on the
promises made by the passage of the FIRST STEP Act. These nominations are necessary to ensure proper implementation of the provisions
contained in the FIRST STEP Act and are essential to ensure the reforms championed by President Trump and reform leaders in Congress are
delivered. However, despite the “ah-hah” moment that the federal government realized with the passage of the FIRST STEP Act, states must
continue to lead the way as they have done for the past decade. Many states have joined the chorus of justice reform begun by
Texas, Georgia and South Carolina. Ohio recently passed legislation to seal certain low-level criminal records and
promote drug and alcohol treatment programs s alternatives to prison. In Pennsylvania , Governor Tom Wolf (D) signed the
nation’s first "Clean Slate” law to seal records of offenders convicted of low-level, nonviolent misdemeanor offenses who do not incur
further criminal charges over ten years. Pennsylvania also removed one of the most challenging barriers for ex-offenders to safely and
successfully re-enter society by eliminating automatic suspensions of driver’s licenses for low-level offenses . Kentucky
Governor Matt Bevin and the state legislature enacted reforms to make it possible for former low-level inmates to attain occupational permits o
momentum achieved by state-level reforms
they can work to support themselves and their families and turn away from crime. The
made the FIRST STEP Act possible at the federal level . States that have been slow to move have example after example of
successful improvements in other states. And now, in light of what President Trump and Congress have done to make the justice system more
efficient and effective, it is vital to continue the cycle of reform across the country which has made our communities safer and restored
lives at all levels.
 S – follow-on – generic
Congress follows on because the counterplan involves so many states electoral concerns are
triggered
Bulman-Pozen 12 - JD @ Yale, Professor of Law @ Yale (Jessica, “FEDERALISM AS A SAFEGUARD OF THE SEPARATION OF
POWERS,” Columbia Law Review, 112.3)//BB

States may be in a good position not only to monitor federal executive action, but also to make persuasive
appeals to Congress. One need not endorse the political safeguards of federalism theory with respect to judicial review to appreciate that
state actors may make especially strong entreaties to the members of Congress charged with
representing their interests.1 4 1 Because of the ties that bind state actors and their congressional
representatives, state actors are likely to have their concerns taken seriously . And when these ties are not enough,
states' particular ability to appeal to the public and to harness the power of the media helps them to get
legislators' attention. States may also be able to engage a different group of legislators than might pay attention to a particular agency's
action in the normal course. A common concern about congressional oversight is that only one part of Congress, usually a committee or
subcommittee, will monitor agency action, and this committee or subcommittee may have different views from Congress as a whole. 142 If
state actors take issue with the federal executive's administration of the law, however, they may complain
to their state representatives regardless of what committees these individuals sit on. Particularly if many states complain ,
they may therefore be able to mobilize Congress , yielding not only oversight but in some cases new laws , such as
the Social Security Disability Benefits Reform Act of 1984.143 In short, although state administration of federal law does not
negate the pathologies that afflict Congress, it can make Congress more likely to pay attention , to have the
information it needs, and to be motivated to correct the administration of federal law . Cooperative federalism schemes
thus may not only restore the focus of administration to Congress but also engage Congress itself in administrative oversight.

Those in state power move into national office---path dependence ensures follow-on
Parecki 19 – Associate at Hall Estill law firm. Previous Associate Editor of the Denver Law Review. J.D. from University of Denver
Sturm College of Law. [Kasia, “Murphy V. NCAA: Anticommandeering – A Win for State Autonomy and Federalism”, Denver Law Review,
7/4/19, https://www.denverlawreview.org/dlr-online-article/murphy-v-ncaa-anticomandeering-doctrine-a-win-for-state-autonomy-and-
federalism-6tadw]//AV

The Founding Fathers believed that federalism was critical to protecting liberty.[206] To reduce the risk of tyranny and abuse, the “Constitution
divide[d] authority between federal and state governments for the protection of individuals.”[207] Preserving state autonomy is crucial for
preserving federalism.[208] The Court’s decision to uphold the anticommandeering doctrine and to construe
preemption narrowly is crucial to protecting state autonomy and protecting federalism . While states’ ability to act
autonomously can bring a number of benefits to our democracy, it can also cause disruption if taken too far. State autonomy helps
create a number of avenues for determining the best approach to a particular problem . First, state opposition
can provide a haven for those opposed to federal policies that are perceived to threaten individual rights,
as demonstrated by the Firearms Freedoms Acts or ACA opposition .[209] Additionally, opposition statutes can create
standing for a lawsuit to challenge the federal law by providing an actual controversy between state and federal policies, as they did in the
challenges to the ACA.[210] Finally, states can provide a vehicle for those not in power at the federal level to
implement their policies at a local level, like with marijuana or immigration regulation .[211] This not only
allows minorities to show that the world will not end if their policies are implemented, it fosters political
circulation, allowing those in power at the state level to run for national office based on their state
achievements.[212] When states have autonomy, the interplay between state and federal power protects
individual rights by “empowering and motivating competing sovereigns to thwart the development of
excessive concentrations of power. Too much state autonomy can lead to disruptions in national unity and be detrimental to the rule
of law, as historical nullification movements have demonstrated.[214] However, the modern state opposition movements tend to
be less divisive than historical nullification movements .[215] One reason for this is, as Claiborne argues in
describing Virginia’s Health Care Freedom Act, is that Virginia “respected the Constitution,” and filed
suit in court when it was concerned about the unconstitutionality of parts of the ACA .[216] Another reason is
Congress’s willingness, in some cases, to allow states to serve as laboratories in trying out new social or economic experiments with more limited
risk than if these ideas were implemented at the federal level.[217] As these new ideas gain support at the local level and
grow in support nationally, adoption at the federal level becomes more feasible .[218] With its disruptive
potential mitigated, state opposition can lead to compromise and accommodation in contested areas. [219] In
recent years, states have tested out various ideas that lack support at the federal level. [220] While the Court found
some of these policies to be preempted by federal law, some policies have found a way to coexist with federal law
 S – international
States are perceived as representing the U.S. internationally
Robinson 7 – JD @ Yale (Nick, “Citizens Not Subjects: U.S. Foreign Relations Law and the Decentralization of Foreign Policy,” Akron
Law Review, Lexis)//BB

State and local governments are arguably seen as representing the U.S. government abroad in a more
official capacity than U.S. non-state actors. The governments of these localities are democratically elected and so
it is more likely that they will be seen as acting on behalf of the American people . Additionally, the federal government
generally has a greater ability to control the actions of these localities than non-state actors. Therefore, there is a greater chance that nonintervention by
the federal government to stop offensive activity will be seen as federal endorsement of such activity. Such logic though
should caution against court intervention in these cases rather than encourage it. If localities' actions damage U.S. foreign policy interests, the federal government can
easily preempt the state or local policies in question. Further, with the world's increased interconnectedness, it is more likely that if a foreign government takes offense
to a locality's policy it can discriminate between the policy of the locality and the policy of the federal government. n155

The counterplan creates cascading norms---those are perceived internationally

Robinson 7 – JD @ Yale (Nick, “Citizens Not Subjects: U.S. Foreign Relations Law and the Decentralization of Foreign Policy,” Akron
Law Review, Lexis)//BB

States have also urged the United States to sign and ratify international agreements . For example, several state
governments have passed resolutions in support of the Convention on the Elimination of Discrimination Against Women (CEDAW).324 Often state and
local action arises out of dissatisfaction with the perceived inadequacy or incorrectness of a federal policy
towards a foreign policy issue. Catherine Powell calls the impact of state and local laws on national foreign
policy “dialogic federalism.”325 She argues that enough local ordinances can create a norm cascade that
affects federal policy .326 The U.S. federal sanctions against South Africa passed by Congress over President Reagan’s veto in 1986 were arguably in
part a result of just such a norm cascade created by anti-apartheid resolutions and laws at the state and local level.327 In many ways, it is the
mobilization of citizens around, more than the passage of a resolution or act on a foreign policy issue that leads to a norm
cascade which changes federal policy. The effort required to convince legislators and their fellow citizens
to support a locality’s official action gives citizens a tangible and reachable local goal to focus their
efforts on. This helps organize constituencies locally that can develop into a national coalition . For example,
someone who has worked continuously to garner support for a local divestment initiative on Sudan is also more likely to call their Congressperson to urge them to
pass the Darfur Accountability Act. Norm cascades created by localities’ actions do not only impact the policy they are directed at, but have a wider
impact as well . For instance, the South Africa or Sudan divestment campaigns can be seen as national human rights
moments. These are moments in which a segment of the American public becomes unusually organized
to promote a human rights-based foreign policy goal . Most voters remain generally unaware of how U.S. foreign policy implicates
human rights in other countries. Further, most voters do not base their vote on foreign policy human rights issues. The signal given by these human

rights moments , however, creates an environment in which sympathetic legislators and policymakers can

prioritize human rights concerns in other areas of foreign policy, knowing there is a constituency that
generally supports this type of action .
 AT theory
There’s sufficient literature on both sides of the fed-state solvency question---don’t conflate
them choosing the wrong aff with there being zero affs with a fed key argument
Barkow 11 – professor of law @ NYU (Rachel, “Federalism and Criminal Law: What the Feds Can Learn from the States,” Michigan Law
Review, 4)//BB

And there has been no shortage of commentators interested in the specific question of when the federal
government should play a role in criminal law enforcement and when it should leave matters to local
control. One school of analysis approaches these questions as the Supreme Court has and is largely interested in what the Constitution has to
say about the relationship among the different institutions. These scholars take what is essentially a doctrinal approach to the federalism question,
analyzing it much the same way a court would. This line of scholarship therefore looks at constitutional text, history, and theory
to address the question of which criminal powers are within federal authority and which fall outside it .
Another group of scholars focuses not on the constitutional question of where power can or must reside, but on the
normative question of where power should reside. A subset of this group tends to focus on arguments grounded in "the political
economy of the different governmental institutions" that make up the criminal justice system. These scholars, for example, analyze the incentives
of officials at the different levels of government given voter and interest-group demands." They also consider whether a "race to the top" or a
"race to the bottom" might suggest the wisdom of greater or lesser federal involvement in criminal enforcement.60 Efforts in this vein also
include scholarship that addresses the political and institutional failings of federal law enforcement that may put it at a disadvantage 61 compared
to local actors. Still another major approach to the normative question of federalism in criminal law focuses on
procedural differences between federal and state systems to decide where best to allocate power.62 Some advocates of
federal law enforcement point to what they see as procedural advantages in federal court. These include fewer restrictions on the government's
use of informants,56 easier access to wiretaps and warrants,4 less generous discovery rights for defendants, 6 and broader grand jury powers."
The federal jury pool may also differ from the relevant state jury pool,67 so it is possible that prosecutors might see an advantage in drawing from
the federal pool over a more localized state jury pool. The federal government's superior witness protection program has also been cited as a
plus." Opponents of increased federal involvement in matters traditionally left to local prosecutors often look to judicial resources, typically
observing that the size and structure of the federal judiciary is not suited for taking on a larger share of criminal matters.
 AT bully pulpit deficit
State bully pulpit is stronger than the federal government--- marijuana proves
Mikos 12 – Professor of Law @ Vandy (Robert, “On the Limits of Federal Supremacy When States Relax (or Abandon) Marijuana Bans,”
CATO Policy Analysis, 12)//BB

The federal government’s campaign against marijuana , however, appears not to have altered public
perceptions of marijuana use. Studies have shown that the anti-marijuana campaign has not reduced the likelihood of marijuana use,
nor has it changed public attitudes toward the drug.166 People do, of course, refrain from using marijuana because they believe it is ineffectual,
dangerous, or wicked, but those beliefs appear not to have been changed or reinforced by the ONDCP’s aggressive
anti-marijuana campaigns. The reason the federal government’s campaign is not shaping preferences may
be that citizens simply do not trust the messenger . Not surprisingly, the persuasiveness of any campaign
may depend as much on its source as on its content . Imagine, for example, Cheech Marin trying to convince students not to
use drugs. The government’s ability to shape citizens’ preferences hinges in large part on lawmakers’
credibility and trustworthiness.167 And as a general matter, the public does not trust federal authorities
very much, particularly compared to their state counterparts .168 When it comes to drug policy in particular, the
public seems to harbor doubts about the motive behind certain federal drug policies. One common concern is that the federal marijuana ban is not
premised on science but is instead motivated by the financial interests of large drug manufacturers, which could lose billions in drug sales if an
ordinary plant were to displace some of their patented medicines, or so the story goes.169 Whether such beliefs are correct is beside the point;
what matters is simply that as long as the federal government suffers a trust deficit, it will have a difficult time
nudging people’s beliefs in the direction federal lawmakers deem desirable . State lawmakers, by contrast,
arguably have more influence over public beliefs and preferences . Owing to a variety of factors, citizens on
average deem state and local governments far more trustworthy than the national government.170
Consequently, state lawmakers may have an advantage vis-á-vis their federal counterparts when it comes to manipulating citizens’ views of
marijuana use or other behaviors. By legalizing medical use of marijuana, for example, state laws may have softened public attitudes towards it.
The use of marijuana may seem more efficacious and less dangerous or wicked because it is permitted by state law. In addition, though states
have not waged a public relations campaign to match that of the ONDCP, proponents of medical marijuana laws have run effective political
campaigns in getting such laws passed. Those campaigns have generally portrayed medical marijuana in a very sympathetic light; they have
portrayed exemptions as rooted in compassion and hope for the sick, rather than being about dangerous and reckless indulgences for the
wicked.171 Federal drug authorities clearly appear troubled by the signal they believe is being sent by state medical marijuana laws and the
political campaigns behind them. Indeed, their opposition to state medical marijuana laws stems in large part from the widely shared view that
these state laws are, in fact, changing people’s beliefs about the dangers of marijuana use, in particular, and perhaps drug use more generally.
General Barry McCaffrey, the former federal drug czar, succinctly made the point to Congress: “Referenda that tell our children that marijuana is
a ‘medicine’ send them the wrong signal about the dangers of illegal drugs—increasing the likelihood that more children will turn to drugs.”17
 AT norm creation deficit
States solve norm creation and have preferable educative effects
Mikos 12 – Professor of Law @ Vandy (Robert, “On the Limits of Federal Supremacy When States Relax (or Abandon) Marijuana Bans,”
CATO Policy Analysis, 12)//BB

When it comes to educating citizens about norms, state laws generally give citizens more current and
relevant information, and as a result are more likely to shape their choices than are federal laws . For one
thing, state laws typically convey more up-to-date information about current social norms. The main reason is that states employ
comparatively majoritarian-friendly lawmaking processes, such as referenda, that make updating state
laws to keep up with changes in societal views much easier .189 To be sure, passage of a congressional law regulating an
activity signals something about how the nation feels about that activity when the law is passed. Indeed, because it takes super-majority support
to push any measure through Congress, laws that do emerge from the national process may signal a strong national consensus and norm. But
because federal laws are so resistant to change, the signal broadcast by the passage of federal law fades quickly with time.
 AT “responsibility” deficit
Starting w/ the fed whitewashes and obscures the rest of the FG’s criminal centralization---
that straight-turns this deficit
Gardner 18 - Assistant Professor of Law University of Washington School of Law (Trevor, “Right at Home: Modeling Sub-Federal
Resistance as Criminal Justice Reform,” 46 Fla. St. U. L. Rev., Lexis)

Proponents of criminal justice reform often project the fundamental restructuring of American penal institutions as a
“top-down” process led by the federal government and forced upon local governments .22 This model of
reform is apparent in the Justice Department’s response to police misconduct allegations in Ferguson, Missouri in 2014, and in its broader
However , the Justice
campaign to challenge local police departments that systematically engage in constitutional rights violation. 23
Department’s campaign to fight municipal police misconduct and other similar federal initiatives tends to
obscure the federal government’s role —past and present—in facilitating criminal justice
dysfunction. The forthcoming discussion briefly conveys the federal government’s influence on the criminal justice system over the past fifty
years, and the value of sub-federal resistance movements in light of this influence. Prior to the 1960s, the federal government
scarcely engaged in matters of crime control and the idea of a federal police force and federal authority over state and local
police struck the average American as the beginning of a dissent into tyranny.24 Norms of criminal federalism up to and through the middle of
the 20th century were essentially the inverse of present. Even J. Edgar Hoover, who few would mistake for a critic of federal government power,
objected to a centralized system of criminal justice on the grounds that it posed a “distinct danger to democratic selfgovernment,” establishing, “a
dominant figure or group on the distant state or national level.” 25 So how did the federal government come to play a major role in criminal
enforcement? The nation shed its aversion to broad federal authority in criminal justice in the presidential election of 1964.26 Two of the leading
candidates in the election—Barry Goldwater and Governor George Wallace—made criminal justice a national political issue by linking civil
rights activism to rising crime rates and urban riots, identifying both as representative of a decline in “social order.”27 In advancing these politics,
Wallace argued that the “‘the same Supreme Court that ordered integration and encouraged civil rights legislation,'" was, "'bending over
backwards to help criminals.’”28 John Bell Williams, a state congressman in the Mississippi House, echoed this sentiment, linking both African-
American internal migration to the North and the emerging Civil Rights Movement to rising crime rates. “This exodus of Negroes from the
South, and their influx into the great metropolitan centers of other areas of the Nation, has been accompanied by a wave of crime. . . . What has
civil rights accomplished for these areas? . . . Segregation is the only answer as most Americans—not the politicians— have realized for hundreds
of years.”29 The ’64 election made crime a core feature of national politics . This politics would translate to path-breaking
policy in the Safe Streets Act of 1968, which established federal funding streams to state and local governments for the sole purpose of criminal
administration. Though the Act ultimately found bi-partisan support in Congress, it had initially drawn criticism from a core group of
congressional Republicans, already alarmed at the extent to which the federal government had expanded its authority over matters traditionally
left to local government. 30 Conservative skeptics feared that a national crime control program would only serve to bolster President Johnson’s
legacy of revolutionizing the role of the federal government in American life, but ultimately supported the Act on the condition that the states
would continue to drive crime policy. This vision of federal restraint did not win out. The Safe Streets Act’s conditional funding provisions
would eventually give the federal government unprecedented influence over state and local crime policy. The Act initially designated $100
million to fund local policing projects for fiscal year 1969. Congress subsequently raised the allocation to $300 million for fiscal year 1970, and
then to $1.25 billion by 1973.31 By this point, the federal government had firmly established crime control as a national issue to be governed in
significant part by federal officials.32 A national politics of crime control held for nearly forty years, from the law-
and-order politics of the 1960s through the War on Drugs . One would be hard-pressed to find sustained conflict between the
federal government and sub-federal governments regarding crime policy during this period. The relative harmony across the landscape of
criminal federalism raises several sociological questions that fall outside the scope of this project. For instance, how did the law-and-order
movement of the 1960s take hold of the whole of a large and diverse country inherently fractured under a federalist system? Given the social
devastation caused by escalating rates of incarceration, why have cities and counties only recently passed and promoted laws designed to combat
the problem of overcriminalization? These questions are meant to underscore the significance of contemporary state and local government
campaigns to limit the role of police and criminal enforcement. Few anticipated this campaign in the early 2000s as the introduction of the
Department of Homeland Security in 2002 seemed likely to extend three decades of relative consensus regarding criminal justice practices.
Among the Department’s primary goals was the incorporation of state and local police into federal domestic and national security programming,
a cooperative arrangement agency administrators thought would ensure unity of purpose, policy, and practice in the field of public security.33
President Bush wrote an open letter to the American public explaining this vision as indicative of a “national” rather than a federal strategy, and
as the first, “comprehensive and shared vision” of how to protect the United States from terrorist attack.34 The federal government would shift to
a philosophy based on cooperation between federal security agencies and state and local police departments. The philosophy seemed a sensible
(and perhaps obvious) proposition for keeping Americans safe in a post-9/11 security environment. Congress overwhelmingly
approved derivative legislation just as criminal and national security scholars were laying the groundwork for a new
literature on the logistics of police incorporation into federal security infrastructure .35 Some argued persuasively that the
vertical integration of federal security agencies and sub-federal police departments would encourage civil rights compliance given that local
police needed to maintain the trust of the local communities subject to counterterrorism investigations.36 Matthew Waxman describes the broader
normative project of police incorporation succinctly: “A prescriptive goal is to better understand in what specific context [national security]
localism should be celebrated, and how vertical intergovernmental relations might be better structured to harness it in advancing simultaneously a
range of policy priorities.” 37 Public-security scholars seemed to agree that the federal government should draw state and local police into a more
centralized system in their renewed efforts to ensure the public’s safety.38 Today, however, the idea of unified public security
administration— state and local police and federal criminal and national security agents marching in
lock-step — faces pointed critique . A growing number of scholars contend that reflexive sub-federal police
participation in federal public security initiatives encourages the hasty conflation of a number of very different
social problems. Jennifer Chacon notes, for instance, that federal security officials now situate illegal immigration, immigrant crime, and
the threat of terrorism under the single rubric of “national security threat,” and that this sort of conceptual entanglement allows security officials
to frame the removal of individuals that pose cultural and economic competition to native groups as a public safety issue.39 But the point here is
not to critique intergovernmental cooperation in the interest of security. It is instead to first establish that the federal government is
again, as in the 1960s, openly in pursuit of further centralization of all of the nation's public-security
agencies. State and local governments now regularly object to cooperative criminal enforcement, primarily on the grounds that their public
security assessments differ from those of the federal government. In keeping with this objection, these governments utilize the legal and
administrative mechanisms of local government to detach from disfavored federal crime policies and related enforcement initiatives, a process
illustrated in detail in Part II.
NET-BENEFIT – ELECTIONS
 NB – elections – no credit
Even a fast follow-on avoids elections---prior state action means states get all of the credit
Ferraiolo 8 - Professor of Political Science at James Madison University (Kathleen Ferraolo, “State Policy Innovation and the Federalism
Implications of Direct Democracy,” Publius)//BB

Ballot Initiatives that Respond to Federal Inaction

There were a number of policy issues that appeared on multiple state ballots during the past several election cycles. Voters have cast their ballots on topics ranging from same-sex marriage and
gambling to education, energy, election reform, and taxes. Eminent domain, the minimum wage, abortion, government finances, and animal rights were other subjects that occupied voters’
attention. This study focuses on four issue areas, most of which were considered in multiple states and targeted federal policy either by responding to perceived inaction or by challenging federal
law. The Minimum Wage Until the newly elected Democratic Congress tackled the issue in early 2007, the federal government had not enacted a minimum wage increase since 1997, when it
was raised to five dollars and fifteen cents an hour. Not content to wait for the federal government to act on what they perceived to be an important issue, in 2006 voters in six states (Nevada,
Arizona, Ohio, Colorado, Missouri, and Montana) ratified initiatives to increase the minimum wage and index it to inflation, in some cases overwhelmingly. Eleven state legislatures approved
raises in 2006 as well. The average ‘‘yes’’ vote for the 2006 ballot measures was 66 percent, and the average margin of victory was thirty-one points. In 2004, voters in Florida and Nevada
overwhelmingly supported minimum wage ballot measures. In total, the National Conference of State Legislatures (2007b) reports that thirty states and the District of Columbia have adopted
state minimum wages that are higher than the federal minimum wage. Clearly, despite inaction at the federal level there is much support for raising the minimum wage among both state voters
and elected officials, including Democratic and some Republican governors and legislators. The ballot presence of hot-button issues such as same-sex marriage and the minimum wage has led
scholars to investigate the mobilizing effects of these issues (Abramowitz 2004; Smith 2006; Nicholson 2005) and to uncover evidence of initiatives’ educative and electoral spillover effects.
Smith and Tolbert, among the first to study the educative effects of direct democracy, found that initiative use is associated with increases in voter turnout, civic engagement, political interest,
and political knowledge (Tolbert and Smith 2006; Smith and Tolbert 2004). Smith and Tolbert (2001), Kousser and McCubbins (2005), and others document the spillover effects of ballot
initiatives on broader electoral and political processes such as citizens’ voting behavior in candidate elections and political party and interest group strategies. Smith (2006) notes that political
officials (such as Arnold Schwarzenegger) and party operatives have skillfully used the initiative process to advance their policy agendas, threaten the legislature into action, and frame candidate
elections. Smith, DeSantis, and Kassel (2006) find a positive correlation between support for anti-same-sex marriage measures and the vote for George W. Bush in Ohio and Michigan in 2004.
Kousser and McCubbins (2005) describe how Democratic party activists in Colorado helped sponsor a successful 2004 initiative to increase mass transit funding that contributed to high voter
turnout and Democratic victories in an election when Republican candidates dominated in many other states. In a wide-ranging study, Nicholson (2005) finds that ballot measures have agenda-
setting, priming, and electoral spillover effects, altering the weight voters assign to various issues, the standards by which they evaluate candidates for congressional and gubernatorial offices,
and the strategies of political candidates and parties. No longer the exclusive domain of citizens or interest groups, political party organizations, candidates, and elected officials now use initiative
elections for many purposes: To increase voter registration and turnout, advance their political agendas and ideologies, circumvent contribution and expenditure limits in candidate races,
selectively mobilize support for their own candidates, prime vote choice for issues on which they believe they have an advantage, or drive a wedge in opponent coalitions (Smith 2005, 2006;
Kousser and McCubbins 2005; Smith and Tolbert 2001). As candidates and parties seek initiative success for policy or ideological reasons, they also force their opponents to drain their resources
in attempting to defeat initiatives that run counter to their own policy and political goals. The minimum wage ballot measures that experienced overwhelming success in 2004 and 2006 were part
of a concerted effort by progressive activists to mobilize sympathetic voters and sway candidate elections. Support for Florida’s 2004 minimum wage initiative by the Association of Community
Organization for Reform Now (ACORN) led to the adoption of the measure as well as a successful voter registration drive. The group appeared to achieve its goals of ‘‘‘driving heightened
Democratic turnout, passing the initiative, and building permanent political capacity for future gains’’’ (quoted in Kousser and McCubbins 2005, 973). In 2004 progressive activists in Nevada
and Florida, with the approval of the Democratic National Committee, used focus groups and pre-election surveys to pretest the language of a variety of minimum wage proposals. They selected
those they believed would mobilize low-income voters who would also support Democratic candidates, including presidential nominee John Kerry (Smith 2006). In 2006, the belief that
minimum wage ballot initiatives could mobilize Democratic-leaning voters was an attractive possibility for labor unions (particularly the AFL-CIO, which launched its ‘‘America Needs a Raise’’
campaign that year) and other progressive groups such as ACORN interested in unseating the Republican congressional leadership (Broder 2006; Andrews 2006). The objectives of minimum
wage sponsors, then, were manifold, including bringing about both state and federal policy change, boosting voter registration and turnout, and influencing candidate elections. Even before they
appeared on state ballots and in Congress, proposals to increase the minimum wage received high levels of support in public opinion polls (Roper Center 2007, 55). Democrats in Congress are
certainly more sympathetic to a minimum wage increase than are most Republicans, and it is not surprising that they would choose to address the issue as one of their signature initiatives in the
110th Congress in early 2007. Still, the evidence presented here suggests that supporters of raising the minimum wage were able to simultaneously achieve three objectives: Advocates
took independent state-level action to address a policy issue of public concern; they had a hand in helping to bring about an
electoral majority in Congress more favorable to increasing the minimum wage; and their efforts led to increased turnout (if not Democratic victories) in at least some of the states where the
measures appeared. As predicted, the success of minimum wage initiatives in multiple states during the 2004–2006 election cycle
ultimately resulted in intergovernmental policy consensus. Impatient with the pace of federal efforts to raise
the minimum wage, state lawmakers and voters used the legislative process and direct democracy institutions to address the issue,

ultimately producing a divergence in policy not only between states and the federal government but across states as well.
The newly elected Democratic Congress resolved this federal–state policy diversity (if not state-to-state diversity; many
states set their minimum wage rates higher than the federal level) by acting to raise the minimum wage for the first time in ten years.

However, some evidence suggests that state voters and policymakers, and not federal lawmakers, receive most of
the credit for policy innovations that originate at the state level . The House of Representatives passed
a bill to raise the minimum wage during the second week of the congressional session, but in an early February 2007 poll fewer than one in
five respondents gave the House credit for this accomplishment (Roper Center 2007, 131); 84 percent of survey respondents favored a
minimum wage increase in 2006, but in March 2007 a mere 2 percent of respondents cited the issue when asked what was the most important thing Congress had done in its first few months

(Roper Center 2007, 090). While Congress received little credit for its support for a minimum wage increase, the initiatives’ overwhelming success and the
Democratic takeover of Congress in 2007 brought state and federal policy more in line with public opinion, enhancing the opinion-policy connection particularly at the state level and fostering
vertical policy consensus and diffusion.
 NB – elections – no voter influence
State action has no influence on voting
Disanto 16 [Jill Disanto, writer for PhysOrg citing Daniel Hopkins who is a political scientist and researcher at UPenn. Researcher explores
why voters ignore local politics. March 18, 2016. http://phys.org/news/2016-03-explores-voters-local-politics.html]---thanks GDDI

Daniel Hopkins,
a political scientist at the University of Pennsylvania, says that, while today's voters are
more engaged in federal elections, they've pretty much abandoned state and local politics. In a book
that he's developing, The Increasingly United States, Hopkins, whose research as an associate professor focuses on American elections and public
opinion, says American federalism was based on the idea that voters' primary political loyalties would be
with the states. But that idea has become outdated. "With today's highly nationalized political behavior, Americans are no
longer taking full advantage of federalism. Contemporary Americans are markedly more engaged with national
politics than with the state or local politics," Hopkins says. " We now know more about national politics,
vote more often in national elections and let our national loyalties dictate our down-ballot choices."
The book presents evidence about Americans' voting and political engagement and offers two reasons to explain why today's voters are paying
more attention to federal elections. The first, Hopkins says, is a landscape in which the political parties offer similar choices at the national level.
"Just as an Egg McMuffin is the same in any McDonald's, America's two major political parties are increasingly perceived to offer the same
choices throughout the country," Hopkins says. The second reason is thechanges in the media and how Americans get
their news, an environment that allows people to follow their interests in national-level politics,
making local and state-level politics easy to ignore , he says. "As Americans transition from print newspapers and local
television news to the Internet and cable television, they are also leaving behind the media sources most likely to
provide state and local information," Hopkins says. "The result is a growing mismatch between the varied
challenges facing states and voters' near-exclusive focus on national politics." For The Increasingly United
States, Hopkins examined historical and recent surveys from the 50 states , along with election results
from gubernatorial and mayoral races dating back nearly a century. He also traced the evolution of political media
coverage from The Los Angeles Times' coverage during the Great Depression through the expansion of local television news during the 1960s
and the role of social media today. "Voters' attention, engagement and campaign contributions are targeted more
toward national politics," Hopkins says. "This 'nationalization' is likely to have profound consequences for state and local politics and
policymaking. Accordingly, this book seeks to document and explain the nationalization of contemporary Americans' political behavior." With a
secondary appointment in Penn's Annenberg School for Communication, Hopkins studies questions related to racial politics, ethnicity,
immigration and urban politics.
 NB – elections – Trump loss
Trump initially fights the counterplan, and loses to follow-on---that drains his popularity
Gerken 17 – Professor of Law (Heather, “We’re about to see states’ rights used defensively against Trump,” Vox,
https://www.vox.com/the-big-idea/2016/12/12/13915990/federalism-trump-progressive-uncooperative)//BB

Uncooperative federalism
People assume that if Congress changes a law, everything changes on a dime . They forget that Congress
depends heavily on states and localities to implement federal policy. The federal government doesn’t have
enough resources to deal with immigration, enforce its own drug laws , carry out its environmental policies, build its own
infrastructure, or administer its health care system. Instead, it relies on the states to do much of this work . We call such arrangements
between the states and federal government “cooperative federalism.” But we forget that they create many opportunities for what Jessica Bulman-Pozen and I have
called “uncooperative federalism.” Progressives at the state and local level can influence policy simply by refusing to partner with the federal government. By doing
so, they force issues onto the national agenda, foregrounding debates that the Republicans would rather avoid. More importantly, defeating
state or local
opposition costs fiscal resources and political capital the federal government would rather employ elsewhere .
The GOP-controlled federal government can’t put cops on every beat or bureaucrats at every desk; it
needs state and local officials to get its agenda through. If blue states and cities refuse to implement Trump’s
agenda, Republicans will sometimes be forced to compromise rather than pay a political and fiscal price. Deploying
federalism against the Patriot Act and education reform Sometimes states engaged in uncooperative federalism simply refuse to participate in federal programs, or
they do so begrudgingly. Some states have refused to carry out the Patriot Act and federal immigration law. States didn’t just denounce the Patriot Act’s broad
surveillance and detention rules as an attack on civil liberties. Blue and red states instructed their own officials not to collect or share information with the federal
government unless there was a reasonable suspicion of criminal activity, or they forbade state officials to engage in activities inconsistent with the states’
constitutions. Other states have repeatedly stymied federal education reform just by dragging their feet. States resisted the No Child Left Behind Act by manipulating
testing standards and by slow-walking reforms. State recalcitrance was so great that eventually the Bush Administration threw in the towel and granted states so many
waivers that the federal program was basically gutted. Federal dependence on states is so pronounced in criminal law that the Vanderbilt law professor Robert Mikos
has suggested that states can effectively “nullify” federal marijuana law simply by withdrawing enforcement resources, as did Colorado and Washington. To be sure,
Jeff Sessions, Trump’s choice for attorney general, can try to change the equation by selectively targeting a few businesses, but it will be an uphill climb. Sometimes
states take advantage of the gaps that are inevitable in any regulatory scheme to take a program in a direction Congress never anticipated. In the early 1990s, Michigan
and Wisconsin, led by their Republican governors, enacted the models for “Welfare to Work” inside the very federal welfare scheme they aimed to topple. Their
successes eventually won over Bill Clinton to their cause and pushed Democrats on the Hill to junk the existing system and follow their model. National welfare
reform was the still-controversial result. States used their powers under the State Children’s Health Insurance program to provide coverage for adults. Back in 2006,
Massachusetts used Medicaid funds to help enact “Romneycare,” which would become the model for Obamacare. And when states are pushed too hard, uncooperative
federalism can even devolve into outright defiance (as in the case of the Patriot Act). Uncooperative states and towns Uncooperative “localism” — resistance at the
level of city or town — can be just as effective as uncooperative federalism. When cities refuse to assist homeland security or deportation efforts, there is relatively
little the federal government can do. That’s presumably why the Trump administration is so panicked about sanctuary cities that have promised not to implement his
immigration policies. (“Sanctuary cities” is not a legal term, but it typically refers to municipalities that refuse to assist with certain types of deportation efforts — for
instance, instructing their police not to ask about a person’s immigration status). The Trump administration already threatened to cut off all federal funding to such
cities. While the federal government can entice states to carry out federal policy by offering financial incentives, a decision penned by Chief Justice Roberts forbids
the federal government from using conditional spending to coerce state officials. (The case involved the Obama administration’s attempt to force states to expand
Medicaid as part of the Affordable Care Act, lest they lose all Medicaid funding.) Even if President Trump spends enough political
capital to win this or that battle against blue cities and states, he cannot win the war . The federal government
doesn’t have the resources to carry out Trump’s policies. Spending political capital and legal resources to win the marijuana dispute, for instance, takes away
resources from the immigration fight or battling California on climate change. Political scientists have long talked about the power of the “street-level bureaucrat” to
thwart the law the legislature enacts. But in today’s federalism, the power of the street-level bureaucrat is rarely confined to the street. Federal dependence on states
and localities thus creates an enormous incentive for moderation and compromise. Often the only way for a national program to succeed is to have a national
consensus behind it. Just ask President Obama, who had to compromise a great deal to bring Obamacare to the red states, offering individual red states waivers and
incentives to convince them to join. Trump may not have to cooperate with Democrats on the Hill, but he’s going to need the support of blue states and cities if he
wants to get things done. A federal program that doesn’t touch California, New York, or Illinois won’t affect a large swath of the American economy. That should
create a healthy incentive for moderation going forward.
NET-BENEFIT – INTERNAL
 1nc
State resistance to federal criminalization spills over---it’s key to a healthy federalism
balance across the board
Partlett 19 – Associate Professor at Melbourne Law School. Previous Associate-in-Law at Columbia Law School and nonresident fellow
at The Brookings Institution. [William, “Criminal Law and Cooperative Federalism”, Georgetown Law Review, 2019,
https://www.law.georgetown.edu/american-criminal-law-review/wp-content/uploads/sites/15/2019/06/56-4-Criminal-Law-and-Cooperative-
Federalism.pdf]//AV

Given the lack of judicial solutions to this problem, the remaining answer lies in political mobilization at
the local level. The Tenth Amendment problems discussed above suggest political arguments that could be deployed in
support of local resistance to this kind of cooperation. In particular, local officials could stress the importance
of holding their executive branch officials accountable through state laws , city juries, and defense attorneys. The
circumvention story at the center of street crime criminal cooperation is one that would strike many city voters as unpalatable and problematic,
particularly as the tough on crime phase comes to an end. A reassertion of local control over gun and drug crime could
involve innovative approaches targeted to better solve the problems of street crime. In particular, city officials could
argue that mass incarceration and the punitive turn in the federal system disproportionately affect
minority communities and are aggravating poverty in inner city areas. Alternatives might involve the creation of drug courts for non-
violent drug possession crimes that seek to divert some offenders from the prison system. In recommending this kind of approach, city
residents would be acknowledging that—at least when it comes to crime prevention—the solutions that
are formulated and designed at the local level are likely to produce the best outcomes . In responding to these
Tenth Amendment concerns, city residents would be recognizing the importance of local, city-based citizenship
and mobilization.209 Viewing oneself as a local citizen in turn stresses the importance of exercising
autonomy and control over things that have an immediate effect on one’s own lives .210 Indeed, through
engagement with city or municipal government and their fellow city residents, local citizens can find answers that suit the needs or requirements
of their own cities. This concept of local citizenship is particularly important in the context of street crime. Street
crime enforcement has traditionally been seen as a local police power issue. This
reflects the fact that street crime is frequently
tied to local causes and problems; uniform national policies are less likely to take account of these
differences. We have already seen this in practice. A national policy process, by drowning out the voices of the local
communities, creates policies which are more punitive and therefore less cognizant of the local costs .211
One of the best examples is the underappreciated cost of incarceration on families in cities.212 A move toward local citizenship and mobilization
is already underway in other areas of crime enforcement.213 Although cities are largely understudied in the federalism literature, particularly in
their power relation with states, they are increasingly playing an important role in resisting federal immigration law.214 This is perhaps
best exemplified in the “sanctuary city” movement. In this context, city electorates have elected mayors that have appointed
police chiefs and district attorneys who have steadfastly refused to cooperate with federal officials. They have justified this
resistance to fully cooperate with federal immigration policy on the basis that compliance will
undermine key local interests. Many have argued that cooperation with the federal government’s aggressive immigration policies will
dissuade undocumented individuals from reporting crimes and engaging with police. A reassertion of city-based identity would thus respond to
the Tenth Amendment concerns with cooperation. First, regaining control over street crime would restore a “healthy
balance” between the federal and local governments, thus helping to ensure the rights-enhancing
aspects of multi-level government . In particular, it would reestablish the importance of state laws and procedural protections put
in place to protect the rights of criminal defendants. Second, a rising sense of urban identity and citizenship would
increase the political accountability of local executive branch officials . City electorates could now
hold executive-branch officials accountable for their policies . Finally, it would also ensure that harsh federal
criminal law policies could not be enforced without the federal government bearing the cost . Apparent from the
immigration context, the federal government relies heavily on the cooperation of city executive-branch officers
to enforce its policies. In street crime, the federal government is fully reliant on local executive branch
officials in enforcement.
That’s key to democracy---lock-stepping fails to produce the autonomy necessary to
enhance civic participation
Serak 12 – JD and MPA @ U Indiana (Christopher, “STATE CHALLENGES TO THE PATIENT PROTECTION AND AFFORDABLE
CARE ACT: THE CASE FOR A NEW FEDERALIST JURISPRUDENCE,” https://mckinneylaw.iu.edu/ihlr/pdf/vol9p311.pdf)

Adam B. Cox outlines three essential values of federalism: tyranny prevention, experimentation and efficiency, and the enhancement of
democracy.211 Each value is transcribed through the structural provisions of the Constitution, which are built around three organizing principles:
accountability, diversification, and checks.212 These principles are achieved through the Constitution's provision of dual sovereignty and divided
power. If the corresponding structural provisions of the Constitution, discussed in the prior sections, are not applied in a manner that embodies
these principles, the attached values of federalism cannot be achieved. Stated another way, if the states are not treated as regulatory
sovereigns, then they cannot fulfill their role in the federal system , and the government cannot deliver the social and
political values inherent to Constitutional order.213 The following paragraphs will define each value and outline how its realization depends on
the regulatory sovereignty of the states. Tyranny prevention refers to ''the fact that the states can serve as and foster political
counterweights to the incumbent powers within the federal government.'.214 Cox argues that the states can serve this role by
offering "organizations that can support generalized opposition to the federal government .'ms Further, Cox explains that
the political institutions of state government serve as an "interest group" on behalf of the citizens . In Federalist
No. 26, Alexander Hamilton states, ''the State Legislatures . . . will constantly have their attention awake to the conduct of the national rulers, and
will be ready enough, if any thing improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary the ARM
of their discontent.'.216 Without the actual and perceived capacity of the states to serve as a

counterbalance the federal government the states are unlikely to fulfill this role. Further, if the
to

citizens of the states do not perceive this capacity they will not see the value in using state political
institutions to such ends. In this way, tyranny prevention relies on the states enjoying the degree of sovereignty

necessary to effectively check federal authority . Experimentation and efficiency refer to the value of
having multiple, independent regulatory entities and the "economic efficiency [realized] through competition among the states."217 The value of
having multiple regulatory entities is in their ability to simultaneously undertake different approaches to the same problems; finding effective
policy schemes through trial and error. This process also allows individuals to "vote with their feet." That is, where a state succeeds in crafting
favorable policy and another state fails, the citizens of the latter state can move to the state with favorable policies, and in so doing show their
support for one policy approach and their dislike for another. This process depends completely on the regulatory autonomy of the states to
exercise the broad police powers left to them by the Tenth Amendment.218 It depends on the Court recognizing state autonomy as a limit on
federal powers. When federal law is allowed to dictate regulatory details to the states, they are unable to
implement creative policies, or adapt the administration of policydirectives to local needs. It also prevents a state from making
corrections to problems it observes in regulatory programs. Wherethe states are left in control of the regulatory details, they can
respond to observed problems efficiently. This efficiency can foster public appreciation and respect for local
government, potentially encouraging civic participation . The ability to respond to such failures with efficiency and speed also
enhances democracy, which happens to be the next federalist value addressed in this Note. Efficiency and experimentation also can refer to the

the states the ability to take the lead on issues of concurrent jurisdiction where the
benefit of giving
federal government has failed . Recent budget measures in states like Wisconsin and Indiana are prime examples. Finally, the states
enhance democracy through local civic organizations and other means of democratic participation . They also enhance
democracy by giving local citizens the ability to elect policy-makers that may represent their preferences better than the aggregate national
government. In some ways, this enhancement of democracy relates to the value of competition. State citizens can elect new leaders when the
policies of the previous leaders were not successful, and these new leaders can erect policies that better meet these preferences with relative
expedience. This federalist benefit is also referred to as the 'fit' "between a given jurisdiction's policies and the preferences oflocal residents. "219
The federal government does not give this same recourse. This is because if the federal government regulates an activity, and the citizens of some
states are satisfied while others are not, only one of these preferences can be manifest in election results, thus leaving one set of citizens happy
and the other not. If the states are left free to regulate the area, then a variety of political cultures can be represented in the policies of the several
states, allowing individuals to choose the state that best represents their own political values. The enhancement of democracy value
depends on the states being given the requisite regulatory autonomy to create diverse policy.220 It also depends on the
sovereign most accountable to its constituency holding the most regulatory authority. In other words, it requires the states to hold the
most regulatory power over the citizens, as the citizens may more easily influence state policy to meet their interests. Similarly,
enhanced democracy relates to the states capacity to make large-scale changes quickly as constituents demand, which is only
possible through a grant of broad regulatory autonomy.
US is key to global democracy
Diamond 19 – PhD in Sociology, professor of Sociology and Political Science at Stanford University (Larry, “Ill Winds: Saving
Democracy from Russian Rage, Chinese Ambition and American Complacency,” Kindle Edition)//BB

In every region of the world, autocrats are seizing the initiative, democrats are on the defensive, and the space
for competitive politics and free expression is shrinking. Established democracies are becoming more polarized, intolerant, and
dysfunctional. Emerging democracies are facing relentless scandals, sweeping citizen disaffection, and existential threats
to their survival. From Turkey and Hungary to the Philippines, wily autocrats are destroying constitutional checks and balances. And with
the global winds blowing their way, authoritarian leaders are becoming more nakedly dictatorial. These unfavorable gusts are not
simply the exhaust fumes of decaying democracies. They are blowing hard from the two leading centers of global authoritarianism,
Russia and China. And if the United States does not reclaim its traditional place as the keystone of
democracy, Vladimir Putin, Xi Jinping, and their admirers may turn autocracy into the driving force of the new
century. Many other analyses are missing this crucial point. The extraordinary progress of democracy from the mid-
1970s to the early 2000s was a global phenomenon, heavily facilitated by the strength, idealism, and energetic support
of the United States and Western Europe. The gathering retreat of freedom is also a global phenomenon, driven this time from Moscow and
Beijing. A reviving autocracy and an emerging Communist superpower are investing heavily—and often effectively— in efforts to promote
disinformation and covertly subvert democratic norms and institutions. Their increasingly brazen challenge demands a vigorous global
response: a reassertion of global democratic leadership, rooted in Washington’s renewed understanding of its far-
reaching responsibilities, and a new worldwide campaign to promote democratic values , media, and civic institutions. Part of that,
I argue, must involve a serious attack on the soft underbelly of these autocracies: kleptocracy. The money being looted from public coffers in
corrupt autocracies is not only sustaining abusive rulers; it is also being laundered into the banking and property systems of the world’s
democracies, corroding our own rule of law and undermining our will to confront the spread of despotism. We can be the kleptocrats’ foes or
their bankers, but not both. By fighting kleptocracy and money laundering, we can help reverse authoritarian trends both at home and abroad. But
as the old saying goes, you can’t beat something with nothing. We cannot defend and renew free government around the world unless we do so at
home. Stopping the desecration of democratic norms and institutions by Donald Trump (and budding autocrats elsewhere) is vital but insufficient.
The decline of American democracy did not begin with Trump, and it will not end with his departure from the White House. Our republic’s
sickness has its roots in decades of rising political polarization that has turned our two parties into something akin to warring tribes, willing to
skirt bedrock principles of fairness and inclusion for pure partisan advantage. America’s constitutional order has long been scarred by racism,
deep injustices in our criminal justice system, and the soft corruption of our systems of lobbying and campaign finance. Now these deep-rooted
problems are quickening in a society that has forgotten the purpose of civic education and is increasingly in thrall to social media, which
privileges the profits of sensationalism and groupthink above the prophets of facts and evidence-based debate. None of this is a cry of despair; all
of it is a call to arms. As I explain in this book’s final chapters, it doesn’t have to go on like this. Promising and viable reforms are
available. We can improve, empower, and heal our democracy—and much can be done even while Trump is in
power . We can change this. We—democratic societies—must change this. But this effort starts with each of us as an individual. The Power of
the Powerless In 1978, the Czech playwright Václav Havel—who would go on to become the first president of post-Communist Czechoslovakia
—wrote one of the most important dissident treatises ever published. In “The Power of the Powerless,” Havel insisted that the oppressed have the
power to overcome their powerlessness by “living within truth” and refusing to bend to the will and lies of dictatorship. His key theme is
individual responsibility and the ability of citizens, through daily acts of defiance, to make a difference even under tyrannical rule. In four
decades of studying democracy, there is no maxim of which I have become more convinced than this: individuals can determine the fate of
democracy. “It is from numberless diverse acts of courage and belief that human history is shaped,” said Senator Robert F. Kennedy in a moving
1966 address to South African students at the University of Cape Town, in the heyday of that country’s apartheid tyranny. At the time, those
words became my conviction. After many decades of research and experience, they have become my conclusion. And sometimes, I have found,
people in new democracies like today’s South Africa may remember RFK’s lesson better than the often comfortable, complacent, or even self-
pitying citizens of older republics, who have forgotten how quickly liberty can die. Eager to think of itself as a science, the academic study of
politics these days is often dismissive of the role that leaders play in shaping political outcomes. But it is not abstract economic or social forces
that bring about democracy or make it work. It is individuals—ordinary and extraordinary citizens—who stake claims, shape programs, form
organizations, forge strategies, and move people. Making a difference involves risk and sacrifice. And when liberty is on the line, the risks may
be daunting and the sacrifice may be mortal. But across the continents and the decades, what has most inspired me has been the willingness of
people—in the end, just people, like you and me— to risk everything they have in the fight for freedom. Today, in the United States, it is
our turn. And the fate of global democracy rests on all our shoulders.

Democratic spread puts a cap on conflict, and authoritarianism makes all of their impacts
more likely
Diamond 19 – PhD in Sociology, professor of Sociology and Political Science at Stanford University (Larry, “Ill Winds: Saving
Democracy from Russian Rage, Chinese Ambition and American Complacency,” Kindle Edition)//BB

To make our republics more perfect, established democracies must not only adopt reforms to more fully include and empower their own citizens.
They must also support people, groups, and institutions struggling to achieve democratic values elsewhere. The best way to counter Russian rage
and Chinese ambition is to show that Moscow and Beijing are on the wrong side of history; that people everywhere yearn to be free; and that they
can make freedom work to achieve a more just, sustainable, and prosperous society. In our networked age, both idealism and the harder
imperatives of global power and security argue for more democracy, not less. For one thing, if we do not worry about the quality of governance in
lower-income countries, we will face more and more troubled and failing states. Famine and genocide are the curse of
authoritarian states, not democratic ones. Outright state collapse is the ultimate, bitter fruit of tyranny. When countries like Syria,
Libya, and Afghanistan descend into civil war; when poor states in Africa cannot generate jobs and improve their citizens’ lives due to rule by
corrupt and callous strongmen; when Central American societies are held hostage by brutal gangs and kleptocratic rulers, people flee—and wash
up on the shores of the democracies. Europe and the United States cannot withstand the rising pressures of immigration unless they work to
support better, more stable and accountable government in troubled countries. The world has simply grown too small, too flat,
and too fast to wall off rotten states and pretend they are on some other planet . Hard security interests
are at stake. As even the Trump administration’s 2017 National Security Strategy makes clear, the main threats to U.S. national
security all stem from authoritarianism , whether in the form of tyrannies from Russia and China to Iran and North
Korea or in the guise of antidemocratic terrorist movements such as ISIS . 1 By supporting the development of
democracy around the world, we can deny these authoritarian adversaries the geopolitical running room
they seek. Just as Russia, China, and Iran are trying to undermine democracies to bend other countries to their will, so too can we contain
these autocrats’ ambitions by helping other countries build effective, resilient democracies that can withstand the
dictators’ malevolence. Of course, democratically elected governments with open societies will not support the American line on every issue. But
no free society wants to mortgage its future to another country. The American national interest would best be secured by a
pluralistic world of free countries—one in which autocrats can no longer use corruption and coercion to
gobble up resources, alliances, and territory. If you look back over our history to see who has posed a
threat to the United States and our allies, it has always been authoritarian regimes and empires. As political scientists have
long noted, no two democracies have ever gone to war with each other—ever . It is not the democracies
of the world that are supporting international terrorism, proliferating weapons of mass destruction, or
threatening the territory of their neighbors.
 IL – CJR key
CJR is key---it’s the central state-federal dispute
Partlett 19 – Associate Professor at Melbourne Law School. Previous Associate-in-Law at Columbia Law School and nonresident fellow
at The Brookings Institution. [William, “Criminal Law and Cooperative Federalism”, Georgetown Law Review, 2019,
https://www.law.georgetown.edu/american-criminal-law-review/wp-content/uploads/sites/15/2019/06/56-4-Criminal-Law-and-Cooperative-
Federalism.pdf]//AV

Cooperative criminal prosecution of street crime strikes at the heart of these federalism concerns .193 It
implicates all three of the broad Tenth Amendment concerns . First, cooperative prosecution programs like PSN are a
classic example of a “departure” from the federal structure that undermines individual liberty.194 As we have seen in this Article, executive
branch law enforcement officials cooperate to circumvent—and therefore depart from—state and local
laws and juries. By aggregating executive power across local, state, and federal government, these
agreements undermine key checks that protect the rights of criminal defendants such as state law and
criminal juries. It therefore turns federalism against the individual, reversing the rights-protective nature of
federalism overall. Second, these programs undermine political accountability by circumventing regulation in
line with the views of the “local electorate. ”195 These cooperative agreements undermine the ability of state
voters and their legislative representatives to hold their own state and local officials accountable for drug
and gun possession crimes. The ability to hold officials accountable is at the heart of a sovereign political
entity. This is particularly true in a state’s exercise of one of its core police powers: the power to
prosecute non-economic street crime. Furthermore, by depriving state voters of meaningful ways of controlling
their own street-level criminal law policy, for instance by establishing drug courts rather than harsh
sentencing, such programs weaken the accountability of state governments. As the Virginia district court stated, it
“lowers citizens’ expectations of the Commonwealth’s public servants, it insulates those officials from
constructive criticism, and it dissipates political pressure that citizens might otherwise exert to improve
the performance of local law enforcement.” 196 Relatedly, these agreements also signal disdain for state-level criminal law
policy. This is done in an area where the states have long been seen as the traditional and constitutionally correct
locus for criminal law prosecution. As the Court wrote in 1971, “Congress has traditionally been reluctant to define as a federal
crime conduct readily denounced as criminal by the States.”197 This also signals a problematic lack of comity from the
federal government for state-level policy. In Younger v. Harris, the Court discusses a “notion of ‘comity,’” which involves: [A]
proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a
continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate
functions in their separate ways.198 The Court went on to explain that it means: [A] sensitivity to the legitimate interests of both State and
National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal
interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States.199
 ! – turns case
Local civic participation turns the case---it’s a pre-requisite to accountability
Waxman 12 – American law professor at Columbia University. Waxman is a member of the Council on Foreign Relations, where he also
serves as adjunct senior fellow for Law and Foreign Policy. [Matthew, “National Security Federalism in the Age of Terror”, Columbia Law
School, 2012, https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=1883&context=faculty_scholarship]//AV

Accountability and political processes In

thinking about the accountability values of federalism and national
security, a good place to start is the familiar debate about criminal justice federalism . That debate provides not
just an analogy, but also some empirical insights, because there is so much substantive and institutional overlap between criminal justice and
national security intelligence. Both involve law enforcement agencies combating threats to public order and safety1 83 -indeed, many states have
their own criminal statutes against terrorism offenses 184-though "national security" functions might be distinguished on account of features
including the high magnitude, political purpose, and national and international consequences of the threat involved. Proponents of
criminal justice federalism usually regard local political dynamics as critical to a normative vision of law
enforcement and policing that is responsive and tailored to local preferences and citizen demands.' This
emphasis fits especially comfortably with anticommandeering doctrine and the Supreme Court's rhetorical
accent that the federal and state governments should be organized as acoustically distinct entities-
separately accountable, therefore, to the citizenry for the benefits and burdens of criminal justice
policies.'18 Legal scholars frequently question political accountability arguments for federalism in general as overstating empirically the way
citizens assign credit or blame for decisionmaking.187 However, in the criminal justice context specifically, many policing
scholars believe that local politics plays a significant role in shaping policy and constraining police
behavior (though recent scholarship also emphasizes professionalization and institutional pressures that play out at local levels).188 "It has
long been accepted," according to one major treatise on law enforcement and democracy, "that the best way to maintain the
accountability of the police is to keep the lines between the local community and the police department as
short as possible." 8 9 "The main consequence of America's decentralized system ," writes James Q. Wilson, "is that
public opinion closely watches and deeply influences law enforcement."1 90 Most police agencies are
locally financed and controlled, and are subject to direction and oversight by officials elected by and
responsible to the communities they serve.191 Combined with the institutional pressures and professional orientations of modem
community policing trends, which emphasize partnership with local communities, 192 these political arrangements are often
believed to make police agencies and their policies responsive to local demands and preferences .193
 ! – uncooperative federalism
The counterplan promotes uncooperative federalism
Gerken 16 - Professor of Law at Yale Law School (Heather, “‘All Resistance Is Local’: A Plan of Progressive Action for the Trump
Years,” The Nation, https://www.thenation.com/article/archive/all-resistance-is-local-a-plan-of-progressive-action-for-the-trump-years/)---ability
edited

Uncooperative Federalism
“Progressive federalism” has long seemed like a contradiction in terms . The left is supposed to favor strong
national government, while the right champions the powers of states . But years of congressional paralysis
[inaction] have flipped this assumption on its head. Name an issue dear to the progressive heart, and there
is probably more going on at the local level than the national one. This was true even before the 2016 election. Same-sex
marriage may be the most heartening example of how states can effect change, but they have also taken the lead on the legalization of
marijuana, raising the minimum wage, reforming the criminal-justice system , passing effective gun-control measures, and
combating climate change.
Yet thepower of states goes beyond instituting policies at the state level . States also wield enormous
influence over federal policy-making . In fact, the federal government is so dependent on state and local
officials that they have the power to change, and even resist, unwelcome federal policies .
As hard as it is to control Washington, it’s even harder for Washington to control the rest of us.
We often assume that whoever controls the national government controls national policy. That’s just not
true. Many of our most important national policies—those related to the environment, healthcare, insurance, transportation,
energy, and the workplace—are implemented by elected state officials and appointed state administrators , not to
mention a myriad of local institutions. Sometimes these arrangements are written into federal law, and some just evolve in practice. Federal
drug policy can’t be enforced without the help of local police officers, prosecutors, and juries. Federal education
policy requires the assistance of state and local agencies, school boards, and teachers. Federal immigration policy depends on states and localities
serving as the federal government’s eyes and ears.
Scholars often file these arrangements under the rubric of “cooperative federalism,” but they also make
room for what Jessica Bulman-Pozen and I call “ uncooperative federalism .” States can significantly slow down or
reverse federal policies simply by dragging their feet and doing the bare minimum necessary. That’s how state and
localities have thwarted federal education reform over the last several years. Sometimes states just pull their
enforcement resources. That’s what happened when Washington and Colorado “legalized” marijuana even
though federal drug laws remained unchanged. Some states even engage in a form of civil disobedience , as many did in
refusing to enforce parts of the Patriot Act.
In the wake of Donald Trump’s election, cities like Chicago, Los Angeles, and San Francisco have promised to be sanctuary cities for
undocumented immigrants, while Governor Andrew Cuomo has insisted that New York will be a “refuge” for Muslims and other minority
groups. These promises have made the incoming administration so nervous that it has threatened to cut off all federal funding—a threat that is
plainly unconstitutional.
If President-elect Trump wants his policies to work, he will have to spend an enormous amount of resources
and political capital to overcome this type of state and local resistance. Maybe he’ll learn one of the most important
lessons in American politics. As hard as it is to control Washington, it’s even harder for Washington to control the rest of us.
President-elect Trump may be able to ignore congressional Democrats, but he’s going to have to perfect the art of the deal with the leaders of left-
leaning states and cities. That
should provide a healthy incentive for moderation in a partisan environment
that otherwise rewards those who cater to the extremes .

Uncooperative federalism is good – friction ensures political accountability and

participation
Leonard 10 – UGA Associate Provost for Faculty Affairs & Charles H. Kirbo Chair in Law. B.A. from Columbia University. J.D. from
University of Georgia. [Elizabeth, “Rhetorical Federalism: The Value of State-Based Dissent to Federal Health Reform”, School of Law at
University of Georgia, 10/1/10, https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1767&context=fac_artchop]//AV

Uncooperative federalism, a theory articulated by Jessica BulmanPozen and Heather Gerken,48 suggests that even when
states actively refuse to cooperate with the federal government, their resistance may be beneficial. 49 To
understand uncooperative federalism, it is helpful to place the theory in the context of other federalism theories. BulmanPozen and Gerken offer
the following matrix, which I slightly modify, in their footnote 18.5 The vertical axis represents the normative position of what states should do:
either they should serve as rivals or challengers to the federal government, or they should serve as
friends or allies with the federal government . The horizontal axis identifies two strategies to facilitate healthy federal-state
relations: either the power of states as sovereigns, or the power of states as servants. The authors note that most existing scholarship falls in Box
1, the state autonomy or dual sovereignty view of federal-state relations, or Box 4, the cooperative federalism view. 51 Their theory fills Box 2,
the affirmative case for states as rivals and challengers from the posture of servants. For Box 3, Bulman-Pozen and Gerken suggest Roderick
Hills's "functional theory. 52 Hills favors state autonomy not so that states can operate as dual or separate
sovereigns, but so that they can bargain effectively for their role within a cooperative, integrated federal
regime. 53 States, under their reserved powers, hold a property right to refuse to lend state administrative
processes to implement federal policies, which right they can sell in a freely negotiated trade, like any
other private contractor.54 Cooperation is a good thing, but only when the federal government "purchases"
state services through voluntary agreements . Dual sovereignty or state autonomy, like uncooperative federalism,
urges states to rival and challenge the federal government but from the posture of sovereign powers. Values
associated with the dual sovereignty view include providing alternative, more accessible forums for citizen participation in the political process.
56 In addition, different territories may have different tastes and needs, especially on social policy matters.57 The diversity of approaches creates
a "political market," allowing citizenry a choice of "laws, customs, and attitudes,'""8 and ultimately, exit rights.59 States also serve as laboratories
of democracy, experimenting and crafting solutions to problems, which approaches can be borrowed by other states and the federal government
The dual sovereignty scholarship recognizes the value of dissent , especially state-level dissent, within
the federal system . 61 Dissent "contributes to the marketplace of ideas, engages electoral minorities[,]...
and facilitates self-expression., 62 The Framers envisioned friction, clashes, and jarring as part of the
constitutional design.63 States may act as lobbyists and litigants, challenging federal policies and laws. 64
Objections may be voiced by states qua states, 65 or by states as spokespersons for individuals.
Cooperative federalism, by contrast, envisions the federal government and states working together as
partners to address common problems or implement legislation . 67 States serve as supportive allies, freely and
voluntarily, albeit often with strong encouragement, implementing federal policies.68 Conditional spending programs,69 such as Medicaid, are
prime examples of cooperative federalism. 70 Under its spending power, Congress entices states to enact laws or implement programs by
conditioning federal funding on states' compliance with broad federal requirements, 7' even though the federal government cannot directly
regulate states or "commandeer" state regulatory authorities to implement, administer, or enforce federal programs.7 ACA employs several
cooperative federalism strategies, including conditional spending, conditional preemption, grants, and contracts, to engage state cooperation in
implementing the massive package of health care reforms.73 Uncooperative federalism focuses on the power that states
wield precisely because of their subservient posture vis-A-vis the federal government .7 4 The theory emphasizes
the "power of the servant" and "the ways in which integration can serve as a distinct source of strength., 75 Lacking adequate financial resources
or regulatory reach to implement comprehensive programs, the federal government often depends on states to implement
and administer federal policies. 76 Because Congress cannot simply mandate states to administer federal programs, it must offer
carrots, such as conditional funding or block grants, or sticks, such as conditional preemption or threats to usurp state implementation.77 In so
doing, the federal government cedes considerable power and discretion to states. For example, under Medicaid, states must comply with broad
federal requirements but otherwise are free to tailor their state plans to meet their citizens' particular needs, still receiving federal matching dollars
for every state dollar spent.7 8 Even though the federal government ultimately holds the threat of revoking federal funds or taking over state
programs, financial, political, and practical realities may render that threat an empty one. States' power as servants also derives from their
integration into federal program implementation.80 State regulators and policymakers have regular interaction with federal authorities in
administering complex, cooperative programs. State actors may develop subject-matter specialization within certain
areas, such as environmental or health policy, which transcends federal and state lines of authority .81 A
related source of power derives from the fact that states serve two masters: the federal government and their state constituents.82 Voters'
dissenting views give states the political will and capital to challenge federal policies. Bulman-Pozen and Gerken
conclude that uncooperative federalism can be useful within a well-functioning federal system.8 3 Friction between the federal
government and states fosters a rich dialogue, clarifies accountability, and encourages political
participation . 4 Doctrinal implications of the uncooperative federalism theory suggest that
commandeering, which is considered unacceptably intrusive on state autonomy to Box 1 adherents, perhaps
should be allowed or encouraged under Box 2 because it engenders dissent .8 5 Uncooperative federalism, like state
autonomy or dual sovereignty, prefers narrow preemption but not because state power should be interpreted as broadly as possible but, rather, as
a way to create larger overlapping spheres of federal and state regulatory authority thereby ensuring ongoing conflict and jarring.

The counterplan alone is the strongest form of uncooperative federalism---the perm isn’t
Bulman-Pozen 9 – JD @ Yale, Professor of Law @ Yale (Jessica and Heather Gurken, “Uncooperative Federalism,” Yale Law Journal,
https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5164&context=ylj)//BB
Given that states have the power, at least in theory, to contest federal policies in the territory long delineated as "cooperative federalism," what
does uncooperative federalism look like in practice? If we employ David Shapiro's metaphor of federalism as dialogue,43 imagining the
states and the federal government engaged in an ongoing conversation about national policy, that dialogue falls
along a continuum. At
one end are the polite conversations and collaborative discussions that cooperative federalism champions .
Uncooperative federalism occupies the remainder of this spectrum -from restrained disagreement to fighting words.
Some state contestation is interstitial, occurring in the gaps left open , deliberately or accidentally, by federal
policymakers. Other state challenges assume a stronger form, the institutional equivalent of civil
disobedience. Much of uncooperative federalism takes place in the interstices of federal mandates. Sometimes dissent is licensed: Congress
explicitly contemplates that states will deviate from federal norms in implementing federal policy, but states take that invitation in a direction the
federal government may not anticipate. 44 Interstitial dissent can also take place in a regulatory gap, when the federal government does not
contemplate state variation but states have sufficient discretion that they find ways to contest federal policy. The
strongest form of
uncooperative federalism involves civil disobedience: states may simply refuse to comply with the
national program or otherwise obstruct it .
 ! – Trump
Uncooperative federalism is key to check Trump
Gerken **and Revesz 17 – expert in constitutional and election law, and the J. Skelly Wright Professor of Law at Yale Law
School **and attorney in the civil division of the U.S. DOJ, J.D. from Yale. [Heather **and Joshua, “Progressive Federalism: A User’s Guide”,
Democracy Journal of Ideas, 2017, https://democracyjournal.org/magazine/44/progressive-federalism-a-users-guide/]//AV
As mentioned, many think of federalism as a means of entrenching the worst aspects of our politics. But it can also be a tool to
change our politics for the better. Many of the best progressive ideas were born in cities and states, and social movements have long used state and local governments as testing grounds for their
ideas. The most remarkable example in recent years has been the same-sex marriage movement. LGBT advocates realized that nationwide marriage equality would be a heavy lift. So instead they started local—first in Hawaii, then in
Massachusetts, then in San Francisco. Some early state and local battles were lost, but same-sex marriage proponents used those fights as staging grounds for organizing and debate. This process built popular acceptance of same-sex
marriage and explains why the Supreme Court’s nationwide ruling in Obergefell v. Hodges—a decision that would surely have caused intense controversy before states started to act—was greeted enthusiastically by an overwhelming
majority of Americans. Many crown jewels of the national progressive agenda are similarly the product of progressive federalism. The Affordable Care Act, for example, has its origins in Massachusetts, where it was enacted by then-
governor Mitt Romney. A regional initiative of ten northeastern states laid the groundwork for the Clean Power Plan. If the next Democratic presidential nominee pushes for universal pre-kindergarten, he or she can look to states and

If progressives want to take a lesson from the

cities for support: Places as different as Oklahoma and New York City have successfully implemented the policy.

conservative handbook, they will have to consider which parts of the equality project—reforming
immigration, policing, sentencing , to give just a few examples—they can directly advance . They should
remember the crucial lessons of the same-sex marriage movement: In the United States, change generally comes from
the bottom, not from the top. And they should remember that working through state and local institutions
to enact progressive ideas is just as important as opposing whatever comes out of Washington . Social
movements need pragmatic insiders, forging compromise from within, not just principled outsiders putting pressure from without. Finally,
states and cities should remember that they have the power to set the agenda . In the Obama years, red states took full advantage of their
power to shape the national conversation. They enacted tough abortion limitations that forced that issue to the front of the political agenda. They sought to reframe the same-sex marriage debate into one about bakers and florists by
enacting expansive religious freedom legislation. And they liberalized gun regulations at a time when the national consensus seemed poised to shift the other way. These states understood that action can grab headlines and shape
debate in a way that protest alone simply cannot. If blue states and cities wish to follow suit, they should take early lessons from Jerry Brown and Michael Bloomberg. The former made headlines in December by boldly claiming that
California would launch its own satellites if the federal government abandoned its climate research. The latter drew attention to environmental issues by pledging that progressive cities would seek to join the Paris climate agreement if

the Trump Administration withdraws. These sorts of bold

pronouncements are not mere bluster. Rather, they’re essential for
keeping important issues in the news and for denying President Trump sole control of the political
agenda . We don’t mean to suggest that federalism is a cure-all for either progressives or conservatives. During the next four years,
many of the President’s actions will be hard to counter. Heavily indebted cities and states may find fighting the federal
government is too expensive. And local politicians will always have to devote time and resources to addressing local concerns. But
progressives would be foolish to treat cities and states as nothing more than enclaves sheltered from
national
policies they don’t like. They can use all the tools we’ve suggested to encourage moderation and reshape
the national conversation . Federalism is for everyone, and it’s time that liberals took notice .
 ! – DPT true
DPT’s true---there’s a clear dyadic peace and a lower risk of war across the board.
Hegre et al. ’18 (Havard; Professor Department of Peace and Conflict Research Uppsala University; Michael Bernhard; Miriam Ehrlich
Chair in Political Science Department of Political Science University of Florida; Jan Teorell; Professor of Political Science Department of
Political Science Lund University; Reassessing the Democratic Peace: A Novel Test Based on the Varieties of Democracy Data;
https://gupea.ub.gu.se/bitstream/2077/56045/1/gupea_2077_56045_1.pdf; accessed 7/17/19; MSCOTT)
4. Results
We estimated two sets of models for all pairs of states for every year over the 1900–2010 period with the
democratic peace hypothesis represented as the democracy score(s) of the stronger country , that of the weaker
country, the interaction of these two, and several control variables. In the first set of models, we entered the five indicators of constraint one by
one along with our control variables. Figure 3 summarizes the results from these models. Complete estimation results in table form with all
control variables are found in Appendix Table A-1.
The first model (called ‘Electoral accountability’) enters the three terms based on the electoral accountability index along with control variables.
The estimates from this model are printed in green color at the top of the figure. The points represent the estimates and the
whiskers their estimated 95% confidence interval . The two main terms are both positive, although that for the
weaker country is not statistically significant. The interaction between the index values for the two countries in the dyad, on the other hand, is
negative and highly significant – when
both countries score highly in terms of electoral accountability, the risk of
fatal dispute is much lower than if either have low scores. In line with expectations, we show in Appendix Table A-3 that
the effect of electoral democracy is driven by the “Schumpeterian” core dimensions tapping into contestation – whereas suffrage does not play an
independent role in promoting peace.
The second model enters the ‘Legislative constraints’ index terms. Again, the interaction term is negative
and significant, whereas the main terms are positive and significant. Similar patterns are observed for the
other three individual indicators.
Figure 4 shows that the net effect for each of these indicators is consistent with the democratic peace .
In the left panels, the dashed line plots the estimated log odds of a MID when the weaker country j is at
the mean of the index, as a function of the score for the stronger country (along the x-axis) . The metric for the
y-axis is log odds relative to the case where both countries have scores of 0 for the index. The dotted and solid lines show the same when the
index is one standard deviation below or above the mean.19
The graph on the right plots the marginal effect of this relationship – it shows the change in the estimated
probability of a fatal dispute when comparing a pair of countries where the weaker country has a value for the index one standard
deviation below the mean and one standard 22 deviation above, respectively, as a function of the index for the stronger country . Both these
graphs show a clear dyadic democratic peace in terms of all our indices of constraint – a more
democratic weaker country means a clearly lower risk of fatal MID if the stronger country is
relatively democratic .20
All of our individual indicators of constraint reflect the democratic peace when entered on their own .
Given the high correlation between them, however, each of them may serve as a proxy for one of the
other. We investigate which of them are relatively most important along two routes.
 ! – LIO
US-led LIO solves extinction
Brooks 14 – Professor of Law at Georgetown and a senior fellow with the New America/Arizona State University Future of War Project
(Rosa, “Embrace the Chaos”, Foreign Policy, 11/14, https://foreignpolicy.com/2014/11/14/embrace-the-chaos/

In numerous ways, life has gotten substantially better in this more crowded and interconnected era. Seventy years ago, global war killed scores of
millions, but interstate conflict has declined sharply since the end of World War II, and the creation of the United Nations
ushered in a far more egalitarian and democratic form of international governance than existed in any previous era.
Today, militarily powerful states are far less free than in the pre-U.N. era to use overt force to accomplish their
aims, and the world now has numerous transnational courts and dispute-resolution bodies that collectively offer states a
viable alternative to the use of force. The modern international order is no global utopia, but it sure beats
colonial domination and world wars. In the 50 years that followed World War II, medical and agricultural advances brought unprecedented
health and prosperity to most parts of the globe. More recently, the communications revolution has enabled exciting new forms of
nongovernmental cross-border alliances to emerge, empowering, for instance, global human rights and environmental movements. In just the last
two decades, the near-universal penetration of mobile phones has had a powerful leveling effect: All over the globe, people at every age and
income level can use these tiny but powerful computers to learn foreign languages, solve complex mathematical problems, create and share
videos, watch the news, move money around, or communicate with far-flung friends. All this has had a dark side, of course. As access to
knowledge has been democratized, so too has access to the tools of violence and destruction, and greater global interconnectedness
enables disease, pollution, and conflict to spread quickly and easily beyond borders. A hundred years ago, no
single individual or nonstate actor could do more than cause localized mayhem; today, we have to worry about massive bioengineered threats
created by tiny terrorist cells and globally devastating cyberattacks devised by malevolent teen hackers. Even as many forms of power have
grown more democratized and diffuse, other forms of power have grown more concentrated. A very small number of states control and consume
a disproportionate share of the world’s resources, and a very small number of individuals control most of the world’s wealth. (According to a
2014 Oxfam report, the 85 richest individuals on Earth are worth more than the globe’s 3.5 billion poorest people). Indeed, from a species-
survival perspective, the world has grown vastly more dangerous over the last century. Individual humans live longer
than ever before, but a small number of states now possess the unprecedented ability to destroy large chunks of the human
race and possibly the Earth itself — all in a matter of days or even hours. What’s more, though the near-term threat of interstate
nuclear conflict has greatly diminished since the end of the Cold War, nuclear material and know-how are now both less controlled and less
controllable. Amid all these changes, our world has also grown far more uncertain. We possess more information than ever before and vastly
greater processing power, but the accelerating pace of global change has far exceeded our collective ability to understand it, much less manage it.
This makes it increasingly difficult to make predictions or calculate risks. As I’ve written previously: We literally have no points of comparison
for understanding the scale and scope of the risks faced by humanity today. Compared to the long, slow sweep of human history, the events of the
last century have taken place in the blink of an eye. This should … give us pause when we’re tempted to conclude that today’s trends are likely to
continue. Rising life expectancy? That’s great, but if climate change has consequences as nasty as some predict, a century of rising life
expectancy could turn out to be a mere blip on the charts. A steep decline in interstate conflicts? Fantastic, but less than 70 years of human history
isn’t much to go on…. That’s why one can’t dismiss the risk of catastrophic events [such as disastrous climate change or nuclear
conflict] as “highconsequence, low probability.” How do we compute the probability of catastrophic events of a type that has
never happened? Does 70 years without nuclear annihilation tell us that there’s a low probability of nuclear catastrophe — or just tell us
that we haven’t had a nuclear catastrophe yet?… Lack of catastrophic change might signify a system in stable equilibrium, but sometimes — as
with earthquakes — pressure may be building up over time, undetected…. Most analysts assumed the Soviet Union was stable — until it
collapsed. Analysts predicted that Egypt’s Hosni Mubarak would retain his firm grip on power — until he was ousted. How much of what we
currently file under “Stable” should be recategorized under “Hasn’t Collapsed Yet”? This, then, is the character of world messiness in this first
quarter of the 21st century. So on to the next question: Where, in all this messiness, does the United States find itself? II. The United States in the
Mess: Goodbye, Lake Wobegon? For Americans, the good news is that the United States remains an extraordinarily powerful nation. The United
States has “the most powerful military in history,” Obama declared in a recent speech. Measured by sheer destructive capacity, he is surely right.
The United States spends more on its military than China, Russia, Saudi Arabia, France, the United Kingdom, Germany, Japan, and India
combined. The U.S. military can get to more places, faster, with more lethal and effective weapons, than any military on Earth. The United States
also manages to gobble up a disproportionate share of the world’s wealth and resources. By the year 2000, wrote Betsy Taylor and Dave Tilford,
the United States, with “less than 5 percent of the world’s population,” was using “one-third of the world’s paper, a quarter of the world’s oil, 23
percent of the coal, 27 percent of the aluminum, and 19 percent of the copper.” In 2010, Americans possessed 39 percent of the planet’s wealth.
The bad news for Americans? U.S. power and global influence have been declining. In part, this is because various once-weak states have been
growing stronger, and in part, it’s because no state can be as autonomous today as it might have been in the past. The United States’ geographical
position long helped protect it from external interference, while its strong military and economy enabled it to dominate or control numerous less
powerful states. But globalization has reduced every state’s autonomy, creating collective challenges — from climate change to the regulation of
capital — that no state can fully address on its own. U.S. power and global influence have also declined in absolute terms, as America’s own
political and economic health has been called into question. The United States now has greater income inequality than almost every other state in
the developed world — and most states in the developing world. American life expectancy ranks well below that of other industrialized
democracies, and the same is true for infant mortality and elementary school enrollment. Meanwhile, the United States has the world’s highest
per capita incarceration rate, and on international health and quality-of-life metrics, the United States has been losing ground for several decades.
This domestic decline jeopardizes the country’s continued ability to innovate and prosper; it also makes American values and the American
political and economic systems less appealing to others. Worse, the political system that Americans rely on for reform and repair seems itself to
be broken; the federal government shutdown in 2013 offered the world a striking illustration of U.S. political dysfunction. Add to this the divisive
national security policies of George W. Bush’s administration — many of which were continued or expanded by the Obama administration —
and it’s no surprise that the United States has recently become less admired and less emulated around the globe, reducing American “soft power.”
No matter how you slice it, it comes to the same thing: Compared with 30 years ago, the United States today has a greatly reduced ability to
control its own destiny or the destiny of other states. The United States still has unprecedented power to destroy (Saddam Hussein and Osama bin
Laden both discovered this, to their detriment). But the country’s capacity for destruction is not equaled by its capacity to shape the behavior of
other states or their populations, and the United States has less and less ability to insulate itself from the world’s woes. Unfortunately, American
political leaders share a bipartisan inclination to deny these realities. Mostly, they succumb to the Lake Wobegon effect: “Declinism” and
“declinist” have entered the American political vocabulary, but only as purely pejorative terms. This is both stupid and dangerous. How can we
adapt our global strategy to compensate for the ways in which U.S. power has been declining if we refuse to admit that decline? Continued U.S.
decline is certainly not inevitable, and some argue that the United States is in fact poised for an economic and political resurgence. There is no
way to know for sure — but it’s worth recalling that, historically, every significant empire has eventually declined. Are we prepared to bet that
the United States will prove an exception? There is also no way to know for sure what form continued or eventual U.S. decline will take. We
don’t know whether it will be fast or slow; we don’t know whether the American Empire is in for a hard landing or a soft one. Will the United
States crash, like the former Soviet Union? Or will a slow decline in power leave the country an intact and influential nation, like the United
Kingdom? Will America’s future be more like Canada’s present, or more like Brazil’s? III. Behind the Veil of Ignorance: Uncertainty as
Lodestone We don’t know what America’s future will look like, and we can make fewer and fewer geopolitical predictions with confidence. The
world has changed too much and too fast for us to accurately assess the probabilities of many types of future events. Perhaps this is why it’s so
tempting for Americans to stay in Lake Wobegon, with eyes closed and fingers crossed. Uncertainty is frightening. But paradoxically, this very
uncertainty should be a lodestone, pointing realists and idealists alike toward a sensible, forward-looking global strategy. In fact, radical
uncertainty can be a powerful tool for strategic planning. That may seem oxymoronic, but consider one of the 20th century’s most influential
thought experiments: In his 1971 book, A Theory of Justice, philosopher John Rawls famously sought to use a hypothetical situation involving
extreme uncertainty to derive optimal principles of justice. Imagine, said Rawls, rational, free, and equal humans seeking to devise a set of
principles to undergird the structure of human society. Imagine further that they must reason from behind what Rawls dubbed a “veil of
ignorance,” which hides from them their own future status or attributes. Behind the veil of ignorance, wrote Rawls, people still possess general
knowledge of economics, science, and so forth, and they can draw on this knowledge to assist them in designing a future society. Their ignorance
is limited to their own future role in the society they are designing: “no one knows his place in society, his class position or social status, nor does
any one know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like.” If we were collectively
designing social structures and rules, but could not know our own individual future positions in that social structure, what structures and rules
would we come up with? Applying a version of decision theory, Rawls concluded that in the face of such radical uncertainty, rational, free, and
equal beings behind the veil of ignorance would be drawn toward a “maximin” (or “minimax“) rule of decision, in which they would seek to
minimize their losses in a worst-case scenario. Since those behind the veil of ignorance don’t know whether they’ll be among the haves or among
the have-nots in the society they are designing, they should seek to build a society in which they each will be least badly off — even the luck of
the draw leads them to start with the fewest advantages. Rawls posited that such a rule of decision should lead those behind the veil of ignorance
to support two core principles: the first relating to liberty (“each person [should] have an equal right to the most extensive basic liberty
compatible with a similar liberty for others”), and the second relating to social and economic goods. (Social goods should be distributed equally,
unless an unequal distribution would serve the common good and be “to the greatest benefit of the least advantaged,” while “offices and positions
[should remain] open to all under conditions of fair equality of opportunity.”) This is in some ways intuitive: On a national level, it is the reason
Americans across the political spectrum continue to express substantial support for the maintenance of unemployment benefits, Social Security,
Medicare and Medicaid, and so on. Any one of us might someday face a job loss or illness; nearly all of us will eventually face old age. We know
we might someday need those benefits ourselves. In the face of uncertainty about the future, we all recognize the value of insurance, savings, and
at least some minimal social safety net. In the international arena, the same is true. This has obvious implications for global strategy. Empires,
like individuals, can sink into poverty, illness, or simple old age — and in an era of uncertainty, empires, like individuals, would do well to hedge
against the possibility of future misfortune. Indeed, two decades after the publication of A Theory of Justice, Rawls sought to apply a form of this
thought experiment to derive the core principles that he believed would characterize a just global order. His arguments are complex, and I can’t
do justice to them here — but fortunately, unlike Rawls, I am not interested in coming up with abstract principles of global justice. My less lofty
agenda is limited to arguing that a crude version of Rawls’s thought experiment can help us delineate the contours of a sensible U.S. global
strategy — a “maximin” strategy that is well-suited to protecting the interests of the United States and its people, both in today’s messy world and
in a wide range of future messes. Here’s my thought experiment. Imagine a crude version of Rawls’s veil of ignorance, with only the United
States behind it. This veil of ignorance doesn’t require us to disavow what we know of history (America’s or the world’s), nor does it require us
to disavow what we know of recent trends, present global realities, U.S. values, or our current conception of the good. It only hides our future
from us: Behind this veil of ignorance, we don’t know whether energy, food, water, and other vital resources will be scarcer or more plentiful in
the decades to come; we don’t know whether global power will be more or less centralized; we don’t know whether new technologies and new
forms of social organization will make existing technologies and institutions obsolete. Most of all, we don’t know whether, in the decades to
come, the United States will be rich or poor, weak or strong, respected or hated. For that matter, we don’t know whether the United States — or
even the form of political organization we call the nation-state — will exist at all a century or two from now. In the face of such radical
uncertainty, what kind of grand strategy should a rational United States adopt? Of course, this shouldn’t really be called a “thought experiment”
at all: The United States already operates behind a veil of ignorance, if we could only bring ourselves to admit it. We know the past; we have a
reasonable understanding of recent trends; we know that the world is messy and dangerous; we know that the potential for rapid and potentially
catastrophic change is real; and we know that our ability to predict future changes and quantify various risks is profoundly limited. This
knowledge is profoundly unsettling. Thus, we try our best to know and not know, at the same time: We speak glibly of complexity, accelerating
change, danger, and uncertainty, but then fall back into the comfortable assumption that continued U.S. global dominance is a given and that
catastrophic change is unlikely to occur. As long as we remain willfully ignorant of the veil of ignorance that hangs over us, we can avoid asking
hard questions and making harder choices. But this is shortsighted and dangerous. Empires that refuse to accept reality tend to rapidly decline. A
clear-eyed acceptance of uncertainty and risk is the surest route to a more secure future. Instead of blinding us or paralyzing us, the uncertainty of
our future should motivate us to engage in more responsible strategic planning. If the United States can manage to be as rational as Rawls’s
hypothetical decision-makers, it should adopt a similar maximin rule of decision: It should prefer international rules and institutions that will
maximize America’s odds of thriving, even in a worst-case future scenario. In fact, we should wish for international rules and institutions that
will be kindest to the individuals living in what is now the United States and their descendants, even if the United States should someday cease to
exist entirely. Could happen, folks. Look around you. Do you see the Roman Empire, or the Aztec Empire, or the Ottoman Empire? IV. From
Messiness to Strategy: A Preliminary Sketch This has urgent implications for U.S. strategic planning. Precisely because U.S. global power may
very well continue to decline, the United States should use the very considerable military, political, cultural, and economic power it still has to
foster the international order most likely to benefit the country if it someday loses that power. The ultimate objective of U.S. grand
strategy should be the creation of an equitable and peaceful international order with an effective system of
global governance — one that is built upon respect for human dignity, human rights , and the rule of
law, with robust mechanisms for resolving thorny collective problems. We should seek this not because it’s the “morally right” thing for the
United States to do, but because a maximin decision rule should lead us to conclude that this will offer the United States and its population the
best chance of continuing to thrive, even in the event of a radical future decline in U.S. wealth and power. But, one might argue, the United States
already tries to promote such a global order — right? Sure it does — but only inconsistently, and generally as something of an afterthought. We
pour money into our military and intelligence communities, but starve our diplomats and development agencies. We fixate on the threat du jour,
often exaggerating it and allowing it to distort our foreign policy in self-destructive ways (cf. Iraq War), while viewing matters such as United
Nations reform or reform of global economic institutions or environmental protection rules as tedious and of low priority. If we take
seriously the many potential dangers lurking in the unknowable future, however, fostering a stronger, fairer,
and more effective system of international governance would become a matter of urgent national self-interest and our
highest strategic priority — something that should be reflected both in our policies and in our budgetary decisions. An effective global
governance system would need to be built upon the recognition that states remain the primary mode of political and social organization in the
international sphere, but also upon the recognition that new forms of social organization continue to evolve and may ultimately displace at least
some states. An effective and dynamic international system will need to develop innovative ways to bring
such new actors and organizations within the ambit of international law and institutions , both as responsible
creators of law and institutions and as responsible subjects .
 AT pdb
The permutation makes state action seem superfluous---that perception undermines state
autonomy
Cox 2k - Law Clerk to the Honorable Stephen Reinhardt; B.S.E., Princeton University, 1996; J.D., University of Michigan Law School,
1999 (Adam, “Expressivism in Federalism: A New Defense of the Anti-Commandeering Rule,” LOYOLA OF LOS ANGELES LAW REVIEW, 33)

The capacity of a state government to act as a political counterweight to the federal government through
intergovernmental checking depends on both national political actors and state citizens perceiving the
state to be a credible political institution.63 By "credible political institution" I mean that the state must be able to maintain
legitimately that it represents the interests of its citizens and, as a corollary, to maintain legitimately that its voice (or threats, as it may be) in the
national political arena is backed by the political force of its citizen-constituents. This requires the state to be able to claim to both national
political actors and its own citizens that it represents its citizens' preferences or best interests. Otherwise, neither has much reason to listen to the
state. For the state's representational claim to be plausible, the state government must include a mechanism by which to measure the preferences
or best interests of its citizens. States, like all democratic governments, possess just such a mechanism-political participation. Not all political
processes function well, and a state's ability to represent its constituents depends on the healthy functioning of the political process. One might
call a state with well-functioning political processes a "vibrant state"--a state in which citizens engage in the mechanisms that enable the state
political machinery to measure their preferences or best interests. Voting is the paradigmatic way in which citizens signal state political
institutions, but there are many other modes of political participation as well.64 Citizens can themselves become public officials, they can interact
with their elected representatives and appointed state officials between elections, and they can organize through other collective bodies to get
their message across in the political process. All of these mechanisms enable state political institutions to represent their constituents in the
national political process. For these mechanisms to work, however, citizen-constituents must see signaling the
state political institutions as a worthwhile exercise . 65 If citizens see participation in the state political
process as largely irrelevant or superfluous to participation in the national political process, then these
mechanisms will break down because citizens will stop participating, or participate less, in the state political
process. This disillusionment cost will reduce the ability of the state political process to measure citizen preferences. 66 Perceptions of
state " autonomy " are important for preserving participation because they promote the trustworthiness or
importance of state officials qua state officials in the eyes of citizens . These perceptions make it possible
for citizens to see interaction with these officials through the political process as meaningful, because the
perceptions lead citizens to see their officials as more than simply remote loudspeakers issuing commands
provided by some federal official far away.67 Thus, citizen perceptions of state " autonomy " may be
critical to the maintenance of vibrant states . Moreover, it is at least plausible to think that the Supreme Court has a role in
promoting these perceptions in order to further the value of states-as-political-counterweights

States must be perceived as alternatives to the federal government to adequately promote

expressive federalism --- the perm’s “lock-step” approach fails
Cox 2k - Law Clerk to the Honorable Stephen Reinhardt; B.S.E., Princeton University, 1996; J.D., University of Michigan Law School,
1999 (Adam, “Expressivism in Federalism: A New Defense of the Anti-Commandeering Rule,” LOYOLA OF LOS ANGELES LAW REVIEW,
33)

Should the New York-Printz anti-commandeering rule be read as a rule protecting each state's control over its regulatory infrastructure? Or is
there another principle that can better explain why the laws invalidated in Printz and New York might have been especially pernicious, and why
the Court perhaps should be less concerned about federal preemption and judicial commandeering? This Part suggests that there is: expressive
grounds more plausibly justify the anti-commandeering rule. In this Part, I first briefly describe the nature of "expressive" theories of law and
regulation. An expressive theory of law is one that is concerned with the social meaning of government
action. I then argue that the anti-commandeering rule is more plausibly defended on expressive grounds than on the grounds articulated by the
Supreme Court. This argument proceeds in three parts: first, I argue that states secure certain values of federalism by serving
as alternative political institutions to the national government; second, I contend that states must be vibrant in
order to serve as credible alternative political institutions, and that the vibrancy of state political institutions
is supported in part by public perceptions of the " autonomy " of states; and third, I suggest that the Court may preserve
and promote these public perceptions of state "autonomy" when it invalidates congressional legislation that treats the states as puppets. In short,
the anti-commandeering rule might serve the important function of representing and reinforcing social understandings of state "autonomy" that
are crucial to the production of some of the public goods secured by federalism.25 A. The Nature of Expressive Justifications There is currently
substantial debate over the nature of expressive theories of law.26 It is therefore necessary to clarify what I intend when I refer to an "expressive
defense" of the anticommandeering rule. Because proponents of expressive theories of law often take as their adversary a certain flavor of law
and economics, expressive theories are often understood in opposition to "consequentialist" theories of law.27 But expressive theories need not
be seen as nonconsequentialist, and the expressive theory of regulation and adjudication that I employ in this Article is not. In fact, the expressive
theory that this Article applies is neither a novel nor a marginal account of the law. To the contrary, it is simply a reinvigoration of the richness of
the law-a reminder that the things done by government actors (legislators, executive officials, and judges alike) are important for reasons apart
from the "tangible" effects that those actions produce. Regulatory and adjudicatory action also have "expressive" features, and these features are
contingent on the way in which government action goes about achieving the more tangible effects. To see this distinction more concretely,
consider the anticommandeering rule itself. Because New York and Printz rely principally on the doctrinal claim that the Constitution
requires that a state's control over its own regulatory infrastructure be protected , the bulk of the criticism leveled
against the rule has evaluated it along the "tangible" metric of "preserved state control." Critics ridicule the anti-commandeering rule along this
evaluative metric for the reasons discussed above: it isn't clear that the rule actually protects a state's control over its own regulatory structure,
and, to the extent the rule does, it isn't clear what values of federalism this control promotes. In contrast, this Article evaluates commandeering
using an expressive metric. It investigates the way in which the federalgovernment goes about depriving states of actual control over their
regulatory infrastructures when it commandeers, and explores the expressive qualities both of that government action and of the Court's action in
invalidating it. There may be more than one reason why the expressive character of law matters. This Article, however, relies on only the
following way in which the expressive character of law is important : Certain judge-made legal norms-which can entail
expressive character either through judicial expression or by proscribing certain regulatory expression-may be important because their expressive
character may represent and reinforce certain social or political understandings that are important to securing public goods. Hence, this Article
does not defend the position that the expressive character of legal norms is important "for its own sake" even if it does not protect or promote
certain public goods.2 8 The voting rights case Shaw v. Reno29 usefully illustrates how the expressive features of a legal norm might protect a
public goodin Shaw, certain aspects of representative democracy. In that case, the Supreme Court invalidated a newly created congressional
district in part because of the district's shape. 30 The dissenters criticized the Court for recognizing this "analytically distinct" constitutional
claim, arguing that the claim was disconnected from any inquiry into impermissible racial purposes or any notion of a conventionally cognizable
injury such as vote dilution.31 The Shaw majority, however, believed that the social meaning of the district's bizarre shape itself created a
cognizable "injury.' '32 As the majority explained, the twisted geography "reinforces racial stereotypes and threatens to undermine our system of
representative democracy by signaling to elected officials that they represent a particular racial group rather than their constituency as a whole."
33 The expressive analysis of the bizarre shape was not anti-consequentialist. As the Court described it, the expressive character of the district
shape had real (negative) effects on the political norms that structure participatory democracy in North Carolina: the shape of the district sent a
message to the district's representative that she represented a "black district," which might have led her in Congress to represent the interests of
only her African American constituents. 34 On this account then, the Court's decision to strike down the districting scheme served the important
expressive function of representing and reinforcing preferable political norms regarding participatory democracy. In contrast, some commentators
would claim that the expressive character of the holding in Shaw is important for its own sake-that is, regardless of whether the ruling has any
effect on participatory democracy in South Carolina. Even in the absence of such an effect, these commentators argue, the invalidation of the
gerrymandered district is important because it expresses the country's commitment to colorblindness in a way that helps define us as a nation.35
This alternative understanding of the expressive importance of legal norms is undoubtedly important. 36 Nevertheless, it is not essential to the
defense set forth in this Article. For that reason, the remainder of the Article focuses on the more consequentialist flavor of expressivism. B. The
Values of Federalism and the Importance of States as Alternative Political Institutions To begin constructing a claim that the expressive features
of the anti-commandeering rule promote certain public goods, this section previews the claim's building blocks-the public goods that a rule of
constitutional federalism, such as the Printz rule, might promote. 37 The Supreme Court sometimes defends our federal structure of government
on the ground that it secures several important public goods, including the promotion of diversity, the prevention of tyranny, and the
enhancement of democracy .38 Commentators hotly debate whether there are any such values of federalism advanced by the
existence of states. 39 But, accepting the existence of such values for the moment, does the anti-commandeering rule promote any of them? In
order to answer this question, this section examines the conventionally articulated values of federalism and the background assumptions on which
they rest. The section concludes that some values of federalism depend
quite directly on the states' possessing the power
of regulatory initiative and thus are not directly promoted by the anticommandeering rule. But other values of federalism, like
tyranny prevention, are more a function of the vibrancy of state political institutions than a function of the regulatory
initiative power of states. These values may be advanced by the New York-Printz rule because, as the following sections will show, the anti-
commandeering rule might serve to preserve and promote the existence of vibrant states.
POLICING
 S
States are the most effective at addressing police reform
Simmons 11 – JD @ Harvard, Professor of Law @ WFU (Kami, “COOPERATIVE FEDERALISM AND POLICE REFORM: USING
CONGRESSIONAL SPENDING POWER TO PROMOTE POLICE ACCOUNTABILITY,” Alabama Law Review, 62)//BB

Part I of this Article examines the national scope of police misconduct and demonstrates the necessity of continued federal involvement in efforts
to reform the practices within local police departments. This Part briefly summarizes the traditional mechanisms for remedying police misconduct
and contrasts those measures with 42 U.S.C. § 14141, a statutory scheme that represents the current federal strategy designed to eliminate
constitutional violations within troubled police departments. This Part also critiques the structure and implementation of the current federal
scheme. Although § 14141 gives the federal government greater authority to ensure that the practices of local police departments meet certain
standards, the federal government’s current efforts to alleviate police misconduct do not, alone, adequately
address police misconduct on a national level. Despite the necessary involvement of the federal government in the realm of
police reform, several important justifications exist for maintaining state involvement in overseeing and
implementing improvements in local police practices . For example, only the most highly publicized
instances of local police misconduct are likely to receive attention because federal resources are limited.
Thus, the nation cannot depend entirely upon the federal government to address these issues . This Part also
addresses important federalism concerns related to federal intervention in local police issues. Because states and local entities are in a
position best suited to determine the frailties of their local police departments , they must play an
integral part of any effort to reform those agencies .22 Historically, however, state indifference to civil-rights issues
involving police brutality demonstrates that state legislatures need active encouragement to enact legislation allowing them to
adequately address police-accountability issues . Thus, this Part argues that innovative state–federal cooperation, characterized
as the concept of cooperative federalism, will be critical to implementing sustainable police reform measures at the local level.

States solve policing

Kristian 16 - writer living in the Twin Cities. She is The Week's contributing editor and a fellow at Defense Priorities, and her writing has
also appeared at Time Magazine, CNN, USA Today, the Los Angeles Times, Relevant Magazine, and The American Conservative, among other
outlets (Bonnie, “Why Donald Trump can't stop criminal justice reform,” The Week, https://theweek.com/articles/661273/why-donald-trump-
cant-stop-criminal-justice-reform)//BB

Is criminal justice reform doomed by a Trump presidency? Many progressives and civil libertarians are in a
panic that it might be. With the rise of Donald Trump, many on the right may abandon their "recent embrace of criminal justice reform," writes
Steven M. Teles at the libertarian Cato Institute. "Trump's campaign rhetoric on crime reads as if he is still in the New York of the late 1980s."
Indeed, back in March, ThinkProgress ran through a litany of Trump's comments on crime and punishment (including "lethal injection is too
comfortable a way to go"), leaving unspoken the clear conclusion that he would be no friend to reformers. Writing at New York, Ed Kilgore was
blunter: Thanks to Trump's win, "a painfully constructed bipartisan and cross-ideological movement to 'de-incarcerate' many people
(disproportionately African-American and Latinos, of course) tossed into prisons as a result of the mandatory minimum sentences, which spread
like wildfire in the 1980s and 1990s, could soon completely fall apart." Kilgore also declared that the president-elect's selection of Sen. Jeff
Sessions (R-Ala.) for attorney general means criminal justice reform "is dead." It's easy enough to see why they're worried . For
one, the Sessions pick does signal a hardline approach to justice issues. Sessions is an unrepentant drug warrior who enthusiastically embraces
civil asset forfeiture, lies about crime statistics, and has a history of race-related comments that at the very least deserve to be labeled
"controversial." And Trump himself has backed higher mandatory minimum sentences and proposed a national stop-and-frisk program. It's no
wonder that advocates of criminal justice reform, once buoyed by fresh bipartisan alliances and a major sentencing reform bill in the Senate, are
now freaked out. But the key detail many — including, I suspect, Trump himself — are forgetting is that ours is a federalist
system. State and local governments wield quite a bit of power in U.S. domestic policy . In fact, most of our
day-to-day interactions with government don't involve Washington much at all . Schools, roads, police, utilities, the
DMV, most courts, the inspector who comes out to make sure your new fence is up to code — these and more are all state and local affairs. They
are influenced by Washington, of course, but hardly controlled by it. Consider the libel laws Trump famously said he wanted to "open up."
Defamation is overwhelmingly legislated at the state level and the feds have no constitutional claim to governance on this issue. This means that
even as president, Trump can't "open up" anything. He could, I suppose, get Congress to pass some sort of federal incentive to try to convince
states to change their laws, but it is doubtful Congress would be enthusiastic about such a proposal. And even if it did pass, does anyone believe
media-heavy states like New York and California would choose to comply? Or what about education? Though there is a federal Department of
Education, the bulk of primary education policy is not made in Washington. Even Common Core (endorsed and mildly incentivized by President
Obama) was adopted on a state-by-state basis. Today, eight states, including progressive Minnesota, have either never completely adopted the
standards or have tried and subsequently rejected them. Unless Trump intends to return to his erstwhile proposal to eliminate the Department of
Education entirely — an unlikely prospect given the Betsy DeVos nomination to head this very department — his promises of change in
education policy are unquestionably overblown. Which brings us to criminal justice reform. Here again the Trump White House can
do far less damage than many realize. The Sessions pick must not be minimized, but Sessions' crusade to jail nonviolent drug users
and override state-level legalization efforts is increasingly unsupported even by his Republican colleagues in
Congress, who have
passed legislation forbidding the Justice Department from using federal money to interfere with state-
legalized medical marijuana and significantly warmed to causes like the reduction of mandatory
minimums and mens rea reform. But more important than the emerging new dynamic in Washington is the fact that criminal
justice reform is and always will be primarily a local project . Police brutality must be addressed locally,
regardless of who is president. "We have 18,000 police departments in the United States, and they're
all going to have some sort of local control, and they're going to be guided by local ordinances or state laws ," explained Jonathan
Blanks, a research associate at the Cato Institute's Project on Criminal Justice, in a conversation we had about police misconduct for a piece
published here at The Week earlier this year. "Every community is going to have to come up with, 'What do we need the most? What's wrong
with our police department?'" Blanks added. "Sometimes adding body cameras will do it. Sometimes a switch at the chief level, at the
administrative level, will bring wanted change. Other times it's deep-down, systemic problems — blue wall of silence, the whole mess — like
you see in Chicago." Federal policy makes a difference, especially where militarization via the Pentagon's 1033 program is concerned, but there
are more than enough state- and local-level changes to occupy criminal justice reform activists for the duration of the Trump presidency. None of
this is to suggest, of course, that Trump steps into an impotent office. On the contrary, executive authority is obscenely overgrown, and my one
source of optimism surrounding Trump's election is that it makes uniquely obvious the dangers of an imperial presidency. The list of things the
president-elect can do with his newfound power is long and grim: The last 16 years have placed torture, assassination, indefinite detention, mass
surveillance, and a host of other intolerables well within Trump's reach. Still, the president's powers are not universal in scope .
Donald Trump will be able to do far too much when he enters the Oval Office come January, but he cannot do everything — and
for those
dismayed by the ways of Washington, a fresh embrace of federalism offers as sure a safeguard as any.

Here's a solvency advocate for all 50 states

Gass ‘17
(Henry Gass, Texas Correspondent, Staff writer, often reporting on criminal justice and environmental issues. “Across US, states answering cries
for police reforms” 4/20/17. https://www.csmonitor.com/USA/Justice/2017/0420/Across-US-states-answering-cries-for-police-reforms)

The week that Freddie Gray died in a Baltimore hospital in April 2015, while the city burned and protesters across the country demanded police reforms, legislators in Colorado were gathered to
. The Colorado lawmakers were grappling with 10 bills aimed at instituting reforms of law
deliver just that

enforcement policies and procedures, ranging from restrictions on the use of chokeholds to the collection
of data on officer-involved shootings. Half of Colorado’s “Rebuilding Trust Package” – as Democratic
lawmakers there dubbed it – failed that week, but Gov. John Hickenlooper went on to sign five of those
bills that year, followed by two more (refashioned from failed 2015 bills) in 2016. And Colorado is only
one example of states taking a serious look at judicial reform in the wake of the national debate around
policing and police violence – particularly in communities of color. Nevertheless, these legislative efforts have largely been overshadowed by the protests that have
precipitated them. In 2015 and 2016, 34 states and the District of Columbia enacted at least 79 bills, resolutions, or executive orders that changed policing policies and practices, according to a
In recent years, it has
report released by the Vera Institute of Justice. That’s almost four times as many as the 20 passed between 2012 and 2014, a Vera spokesman says.

been left to individual departments to enact reforms if they deem them necessary, or – when especially
troubled departments are either unwilling or unable to change – to the US Department of Justice, typically
via a court-ordered “consent decree” that requires departments to implement certain reforms. The
emerging role of states in policing reform is critical, says Jim Bueermann, the president of the Police
Foundation and the former chief of police in Redlands, Calif., since they can strike the perfect balance
between being close enough to the streets to understand specific local policing issues and solutions, while
having the broad authority to pass laws that affect every policing agency in their state. “States are the
sweet spot between the federal government passing laws and the 17,000 communities [with law
enforcement agencies] passing laws,” says Mr. Bueermann. Creating consensus If enough states legislate
reforms, he says, it could contribute to a national consensus on what constitutes good policing policies.

“ If you get 50 states to develop a national coherence around what

constitutes good policing ,” he adds, “we would take a quantum leap forward in helping people
understand the values of policing, the challenges police face every day, and police departments would better understand how they have to reform their own
operations.” Ever since black teenager Michael Brown was shot and killed in Ferguson, Mo., in August 2014, public scrutiny of police conduct has simmered at a high heat, boiling over into
protests and riots after new controversial incidents. After Mr. Brown, there was Tamir Rice (in Cleveland) in November 2014, then Walter Scott and Mr. Gray (in North Charleston, S.C. and
With each incident,
Baltimore, respectively) in April 2015, then Alton Sterling and Philando Castile (in Baton Rouge, La., and Minnesota, respectively) in July 2016.

pressure mounted on state legislatures to act, says Ram Subramanian, who co-authored the report for the
Vera Institute.
 S – nullification
Refusal to enforce federal criminal statutes solves---the FG has can’t police without the
states
Gardner 18 - Assistant Professor of Law University of Washington School of Law (Trevor, “Right at Home: Modeling Sub-Federal
Resistance as Criminal Justice Reform,” 46 Fla. St. U. L.Rev., Lexis)//BB---sex edited

Nullification occurs as a consequence of the [hu]manpower disparity between the federal government and
local governments. The federal government cannot broadly enforce most of its criminal initiatives absent
cooperation from state and local police. While the federal government employs 105,000 law enforcement
agents across its various public security agencies, state and local governments collectively employ 1.2 million .59 The
reach of a federal criminal initiative within a sub-federal jurisdiction often depends on the extent to which
the associated sub-federal government allows its police officers to participate in the initiative’s enforcement .
Together, these institutional and normative effects facilitate enforcement nullification , mimicry, and
enforcement abolition . The failure of the Department of Homeland Security to enforce federal
immigration law through any number of sub-federal police departments demonstrates the process in which
enforcement abstinence may translate to enforcement nullification . Of the estimated 11 million unauthorized immigrants
residing in the United States, 2.67 million (24%) live in California, and of California’s unauthorized immigrant population about 814,000 (30%)
live in Los Angeles County. In 2013, the state of California passed the Trust Act, a state statute that bars state and
local police from honoring federal immigration detainers for detained criminal suspects unless the requested detainee had
been convicted of (rather than merely arrested for) a “serious violent felony” as identified within the California Penal Code. The Act does permit
California police to lawfully grant federal detainer requests in a limited number of circumstances, but under no circumstance is cooperation
required. Moreover, cooperation with federal government officials outside the narrow range of discretion allowed under the Act
constitutes a misdemeanor criminal offense.60 DHS cannot effectively enforce federal immigration law
in Los Angeles County without the support of Los Angeles County municipal police departments and this
support is unlikely to arrive any time soon despite federal efforts to frame cooperative immigration
enforcement as a crime fighting measure . The immigration enforcement policy clash in Los Angeles County is
indicative of the federal government’s implementation challenges across the country . Homeland Security
Secretary Jeh Johnson addressed the issue in a letter in 2014 announcing the termination of “Secure Communities,” one of a succession of
cooperative immigration enforcement programs. The letter addresses the impact of the sub-federal government opposition on the viability of the
program. The goal of Secure Communities was to more effectively identify and facilitate the removal of criminal aliens in the custody of state
and local law enforcement agencies. But the reality is the program has attracted a great deal of criticism, is widely misunderstood, and is
embroiled in litigation; its very nature has become a symbol for general hostility toward the enforcement of our immigration laws. Governors,
mayors, and state and local law enforcement officials around the country have increasingly refused to cooperate with the program, and many have
issued executive orders or signed laws prohibiting such cooperation.61 Johnson’s letter captures the difficulties officials face in enforcement-
abstinence jurisdictions. Today, however, Homeland Security officials lobby the nation’s largest cities in an attempt to persuade them to drop
rigid abstinence policies and refer unauthorized immigrants suspected of terrorism, convicted of gang-related crime, or convicted of aggravated
felonies under the Immigration and Nationality Act.62 Several jurisdictions such as New York City, Philadelphia, Los Angeles, and Cook County
have resisted compliance with these requests, favoring near-absolute abstinence from the enforcement of federal immigration law.63 In a hearing
before the House Judiciary Committee in July of 2015, Secretary Johnson was asked to explain why his agency opted to terminate the Secure
Communities program. Johnson testified that in the past year alone, state and local police had ignored 12,000 federal immigrant-detention
requests. 64 In response, the Department decided to scrap Secure Communities and market its replacement, the Priority Enforcement Program
(PEP), as a tempered alternative. Under PEP, Homeland Security officials would limit immigrant detainer requests to arrests for serious criminal
offenses.65 The federal government's modest objectives under the Priority Enforcement Program indicate the
degree to which federal officials need sub-federal police. When state and local governments refuse to
consent to cooperative enforcement, enforcement nullification is in many instances a likely outcome .

Uniform fiat solves.

Lieb 13 – David Lieb, Government and Political Reporter at the Associated Press, citing Constitutional Law Professor Adam Winkler at the
University of California at Los Angeles. [Federal nullification efforts give local, federal police conflicting orders, 6-21-13,
https://www.policeone.com/federal-law-enforcement/articles/federal-nullification-efforts-give-local-federal-police-conflicting-orders-
jA2JbyrzZKGgyZeE/]//BPS
JEFFERSON CITY, Mo. — Imagine the scenario: A federal agent attempts to arrest someone for illegally selling a
machine gun. Instead , the federal agent is arrested — charged in a state court with the crime of
enforcing federal gun laws.
Farfetched? Not as much as you might think.
The scenario would become conceivable if legislation passed by Missouri's Republican-led Legislature is signed into law by Democratic Gov. Jay
Nixon.
The Missouri legislation is perhaps the most extreme example of a states' rights movement that has been spreading across the nation. States
are increasingly adopting laws that purport to nullify federal laws — setting up intentional legal
conflicts , directing local police not to enforce federal laws and, in rare cases, even threatening criminal charges for
federal agents who dare to do their jobs.
An Associated Press analysis found that about four-fifths of the states now have enacted local laws that directly reject or ignore federal laws on
marijuana use, gun control, health insurance requirements and identification standards for driver's licenses. The recent trend began in Democratic
leaning California with a 1996 medical marijuana law and has proliferated lately in Republican strongholds like Kansas, where Gov. Sam
Brownback this spring became the first to sign a measure threatening felony charges against federal agents who enforce certain firearms laws in
his state.
Some states, such as Montana and Arizona, have said " no " to the feds again and again — passing states' rights measures on
all four subjects examined by the AP — despite questions about whether their "no" carries any legal significance .
"It seems that there has been an uptick in nullification efforts from both the left and the right ," said Adam
Winkler, a professor at the University of California at Los Angeles who specializes in constitutional law.
Yet "the law is clear — the supremacy clause (of the U.S. Constitution) says specifically that the federal laws are
supreme over contrary state laws , even if the state doesn't like those laws," Winkler added.
The fact that U.S. courts have repeatedly upheld federal laws over conflicting state ones hasn't stopped some states from
flouting those federal laws — sometimes successfully .
About 20 states now have medical marijuana laws allowing people to use pot to treat chronic pain and other ailments _ despite a federal law
that still criminalizes marijuana distribution and possession. Ceding ground to the states, President Barack Obama's administration has made it
known to federal prosecutors that it wasn't worth their time to target those people.
Federal authorities have repeatedly delayed implementation of the 2005 Real ID Act, an anti-terrorism law that set stringent requirements
for photo identification cards to be used to board commercial flights or enter federal buildings. The law has been stymied, in part, because about
half the state legislatures have opposed its implementation, according to the National Conference of State Legislatures.
About 20 states have enacted measures challenging Obama's 2010 health care laws, many of which specifically reject the provision
mandating that most people have health insurance or face tax penalties beginning in 2014.
After Montana passed a 2009 law declaring that federal firearms regulations don't apply to guns made and kept in that state, eight other
states have enacted similar laws. Gun activist Gary Marbut said he crafted the Montana measure as a foundation for a legal challenge to the
federal power to regulate interstate commerce under the U.S. Constitution. His lawsuit was dismissed by a trial judge but is now pending before
the 9th U.S. Circuit Court of Appeals.
"The states created this federal monster , and so it's time for the states to get their monster on a leash ," said
Marbut, president of the Montana Shooting Sports Association.
The Supreme Court ruled in 1997 that local police could not be compelled to carry out provisions of a
federal gun control law. But some states are now attempting to take that a step further by asserting that certain federal
laws can't even be enforced by federal authorities.
A new Kansas law makes it a felony for a federal agent to attempt to enforce laws on guns made and owned in Kansas. A similar Wyoming law,
passed in 2010, made it a misdemeanor. The Missouri bill also would declare it a misdemeanor crime but would apply more broadly to all federal
gun laws and regulations — past, present, or future — that "infringe on the people's right to keep and bear arms."
U.S.A ttorney G eneral Eric Holder sent a letter in late April to the Kansas governor warning that the federal government is
willing to go to court over the new law.
"Kansas may not prevent federal employees and officials from carrying out their official responsibilities," Holder wrote.
Federal authorities in the western district of Missouri led the nation in prosecutions for federal weapons offenses through the first seven months
of the 2013 fiscal year, with Kansas close behind, according to a data clearinghouse at Syracuse University.
Felons illegally possessing firearms is the most common charge nationally. But the Missouri measure sets it sights on nullifying federal firearms
registrations and, among other things, a 1934 law that imposes a tax on transferring machine guns or silencers. Last year, the federal government
prosecuted 83 people nationally for unlawful possession of machine guns.
So what would happen if a local prosecutor actually charges a federal agent for doing his or her job?
"They're going to have problems if they do it — there's no doubt about it," said Michael Boldin, executive director of the Tenth Amendment
Center, a Los Angeles-based entity that promotes states' rights. "There's no federal court in the country that's going to say that a state can pull this
off."
Yet states may never need to prosecute federal agents in order to make their point.
If enough states resist , "it's going to be very difficult for the federal government to force their laws
down our throats ," Boldin said.

Refusal to enforce dooms federal efforts---the FG won’t fight the counterplan because of
limited PC and resources
Gerken 17 – Professor of Law (Heather, “We’re about to see states’ rights used defensively against Trump,” Vox,
https://www.vox.com/the-big-idea/2016/12/12/13915990/federalism-trump-progressive-uncooperative)

Progressives have long been skeptical of federalism, with the role that “states’ rights” played in the
resistance to the civil rights act and desegregation typically featuring prominently in their criticism. Its ugly history even led
one 20th-century scholar to insist that “if one disapproves of racism, one should disapprove of federalism.” Even now, with every
national institution in the hands of the GOP, progressives associate federalism with conservatism and shy
away from invoking the language of federalism to change the policies they oppose.
That is a mistake . Federalism doesn’t have a political valence . These days it’s an extraordinarily
powerful weapon in politics for the left and the right, and it doesn’t have to be your father’s (or
grandfather’s) federalism. It can be a source of progressive resistance — against President’s Trump’s policies,
for example — and, far more importantly, a source for compromise and change between the left and the right. It’s time liberals took
notice.
Here are three important ways progressives can take a chapter from the conservatives’ playbook and use their control over state and local
governments to influence the national agenda, shape policy results, and encourage political compromise . If
Jerry Brown or Andrew Cuomo or Eric Garcetti is looking for a “to do” list for the next four years, it’s here.
Uncooperative federalism
People assume that if Congress changes a law, everything changes on a dime. They forget that Congress
depends heavily on states and localities to implement federal policy .
The federal government doesn’t have enough resources to deal with immigration, enforce its own drug laws, carry
out its environmental policies, build its own infrastructure, or administer its health care system. Instead, it relies on the states to do
much of this work. We call such arrangements between the states and federal government “cooperative
federalism.” But we forget that they create many opportunities for what Jessica Bulman-Pozen and I have called
“uncooperative federalism.”
Progressives at the state and local level can influence policy simply by refusing to partner with the
federal government. By doing so, they force issues onto the national agenda , foregrounding debates
that the Republicans would rather avoid. More importantly, defeating state or local opposition costs fiscal
resources and political capital the federal government would rather employ elsewhere .
The GOP-controlled federal government can’t put cops on every beat or bureaucrats at every desk; it
needs state and local officials to get its agenda through. If blue states and cities refuse to implement Trump’s
agenda, Republicans will sometimes be forced to compromise rather than pay a political and fiscal price .

Nullification solves --- public pressure prevents federal crack-down

Young 15 – professor of law @ Duke (Ernest, “Modern-Day Nullification: Marijuana and the Persistence of Federalism in an Age of
Overlapping Regulatory Jurisdiction,” Case Western Reserve Law Review, 65.3)//BB

Modern-day nullification thus seems likely to be a viable tactic only when a state prefers less regulation
on a particular subject than does the federal government . It is also unlikely to work where federal regulation has direct
beneficiaries who would be able to sue to compel enforcement of federal law by the courts. Generally speaking, federal standing doctrine is
stingy about suits by the beneficiaries of regulation arguing that federal authorities are enforcing the law with insufficient rigor.106 But Article III
does not categorically prohibit such suits either. Where permitted access to federal court, beneficiaries of federal regulation may prove able to
induce federal authorities to enforce federal law even where they might prefer to pursue other priorities. Serious political constraints also exist.
National public opinion on marijuana places the federal Controlled Substances Act in a kind of limbo.
There is insufficient public demand for legalization to engender a strong political movement for repeal or
amendment, but there is also insufficient support for prosecuting marijuana users to prompt federal
authorities to allocate increased resources that might compensate for state noncooperation . It may be that there
are other federal crimes that arouse similarly ambivalent public attitudes—sports betting is one possibility. But it is hard to think of many other
obvious examples. Under the right conditions, however, modern-day nullification may well be an attractive mechanism
for promoting government innovation. The federal government, not to put too fine a point on it, has been
largely dysfunctional for the better part of the last two-anda-half presidential administrations . The “mess in
Washington” has not only torpedoed the approval ratings of presidents and the Congress; it has also contributed to a significant and persistent
decline in public trust for federal governmental institutions.107 As Robert Mikos has pointed out, the trust disadvantage that the
federal government now suffers vis-à-vis state and local governments is one reason that modern-day
nullification can be successful.108 When state governments are more trusted than the Feds, state judgments
about, say, the appropriateness of marijuana use more readily displace the moral suasion of federal law . State
governments are not only more trusted; they are also frequently more able to act on matters of current
social concern. That is because, unlike the national government, a significant number of states have unitary governments—that is, the same
party controls the governorship and both houses of the state legislature.109 Nonetheless, where federal statutes like the CSA’s marijuana
prohibition are already in place, gridlock at the federal level may prevent efforts to facilitate state policy innovation. Federalism scholars
(including this one) have often cited the difficulty of enacting federal law as a safeguard of state autonomy.110 Carlos Vazquez has pointed out,
however, that “[r]ather than protect state interests, [the difficulty of enacting federal law] privileges the legal status quo—whether that status quo
be state law or federal.”111 Hence, the federal legislative gauntlet “sometimes hinders the devolution of legislative
power to the states.”112 Modern-day nullification may break this sort of impasse, returning us to a
federalist solution in which individual states can effectively legalize or criminalize a particular
activity by choosing whether to cooperate with federal enforcement .
 S – decriminalization
States can decriminalize any illegal activity---federal challenges would fail
Mikos 12 – Professor of Law @ Vandy (Robert, “On the Limits of Federal Supremacy When States Relax (or Abandon) Marijuana Bans,”
CATO Policy Analysis, 12)//BB

The American Constitution divides governmental power between the federal government and several state
governments. In the event of a conflict between federal law and state law, the Supremacy Clause of the
Constitution (Article VI, Clause 2) makes it clear that state policies are subordinate to federal policies . There are,
however, important limitations to the doctrine of federal supremacy. First, there must be a valid
constitutional basis for the federal policy in question. The powers of the federal government are limited
and enumerated, and the president and Congress must always respect the boundary lines that the Constitution
created. Second, even in the areas where federal authorities may enact law, they may not use the states as
instruments of federal governance. This anticommandeering limitation upon federal power is often
overlooked, but the Supreme Court will enforce that principle in appropriate cases. Using medical marijuana as a
case study, I examine how the anti-commandeering principle protects the states’ prerogative to legalize
activity that Congress bans . The federal government has banned marijuana outright, and for years federal officials have lobbied
against local efforts to legalize medical use of the drug. However, an ever-growing number of states have adopted legalization measures. I explain
why these state laws, and most related regulations, have not been—and cannot be — preempted by Congress . I also
develop a new framework for analyzing the boundary between the proper exercise of federal supremacy and prohibited commandeering.
Although I focus on medical marijuana, the legal analysis applies to any issue pitting permissive state
laws against restrictive federal regulations . Recent referenda in Colorado and Washington that legalize the recreational use of
marijuana for adults will likely prompt federal officials to respond by touting the supremacy of the federal ban and challenging the
constitutionality of state efforts at legalization. Such state reforms should carry the day in the event of such a legal
challenge.

State decriminalization solves

Mikos 12 – Professor of Law @ Vandy (Robert, “On the Limits of Federal Supremacy When States Relax (or Abandon) Marijuana Bans,”
CATO Policy Analysis, 12)//BB

Even more interesting, an analysis of the medical marijuana conflict reveals that states also have
comparatively strong sway over
the private (non-legal) forces that shape our actions, such as our personal beliefs about behavior and our
social norms. Simply by allowing their residents to use marijuana for medical purposes, the states have arguably fostered more tolerant
attitudes toward the practice, making it seem more compassionate, less dangerous, and less wicked, thereby removing or softening the personal
and societal reproach that once suppressed medical use of the drug. The expressive power of permissive state legislation—
largely ignored by the academy—cannot easily be undone or countered by Congress . As a result, the
states may possess even more de facto power vis-à-vis Congress than is commonly perceive d. In this paper I
will provide a definitive study of one of the most important federalism disputes in a generation.12 It shows that states have wielded far more
power and influence over medical marijuana than previously recognized. The states have not only kept the patient breathing, so to speak, in
anticipation of a day when federal policy might change; they have, for all practical purposes, already made medical marijuana de facto legal
within their jurisdictions. To be sure, more battles will be fought, but they won’t change the reality that the states—and not the federal
government—have already won the war over medical marijuana . More important, however, by shedding new light on the
struggle over medical marijuana, this paper also has much broader relevance to our understandings of federalism
and state resistance to federal authority. Although it focuses on medical marijuana, the insights generated here could be
applied across a wide range of issues pitting restrictive federal legislation against more permissive state
laws. Over the past decade, states have legalized a variety of controversial practices that Congress has
sought to proscribe or restrict. For example, states now recognize same-sex marriages, legalize certain
abortion procedures, permit sports gambling, and allow possession of firearms that Congress proscribes (or
has sought to curtail).13 Referenda in Colorado and Washington now allow even more federally proscribed activity, namely, the recreational use
of marijuana.14 As the case study of medical marijuana demonstrates, states (generally) possess legal authority to enact
permissive legislation governing such issues, in spite of contrary congressional policy : states are
merely restoring the state of nature. And as with medical marijuana, the ultimate outcome on such issues may hinge more on
Congress’s capacity to enforce its own laws and its ability to manage the non-legal forces that shape our behavior than on the Supreme Court’s
proclamations demarcating Congress’s substantive powers vis-à-vis the states. I highlight the need for courts, commentators, and lawmakers to
distinguish between federal laws authorizing conduct banned by the states (under which state power is significantly constrained), and federal laws
banning conduct authorized by the states (under which states wield considerably more power).

State legalization solves

Mikos 12 – Professor of Law @ Vandy (Robert, “On the Limits of Federal Supremacy When States Relax (or Abandon) Marijuana Bans,”
CATO Policy Analysis, 12)//BB

This paper also explains why permissive state laws matter: states are able to foster, or at least enable, federally
proscribed behavior, even when they cannot engage in, require, or facilitate it—or block federal
authorities from imposing their own harsh sanctions on it—that is, even when states cannot depart from
the state of nature. The federal government does not have the law enforcement resources needed to
enforce its bans vigorously (although this could vary somewhat by context), and its ability to marshal the most
important private and social behavioral influences to enhance compliance with its bans is likewise
limited .202 As a practical matter, by simply legalizing a given behavior , the states can remove or at least
diminish the most significant barriers inhibiting that behavior, including state legal sanctions (which often can
be enforced vigorously) and the personal, moral, and social disapproval of the behavior as well . Though Congress has
banned marijuana outright through legislation that has survived Supreme Court scrutiny, state laws legalizing medical use of marijuana not only
remain in effect, they now constitute the de facto governing law in 18 states. These state laws and most related regulations have not been—and,
more interestingly, cannot be— preempted by Congress, given constraints imposed on Congress’s preemption power by the anti-commandeering
rule, properly understood. Just as importantly, these state laws matter ; state legalization of medical marijuana has not only eliminated the
most relevant legal barrier to using the drug, it has arguably fostered more tolerant personal and social attitudes toward the drug. In sum, medical
marijuana use has survived and, indeed, thrived in the shadow of the federal ban. The war over medical marijuana may be largely over, though
skirmishes will undoubtedly continue, but contrary to conventional wisdom, it is the states, and not the federal government, that have emerged the
victors in this struggle. Supremacy, in short, has its limits .
 S - police oversight
States solve policing oversight
Candice Norwood, 17 , former editorial fellow at The Atlantic, 5-24-2017, "Why California Is a Case Study for Monitoring Police
Misconduct," Atlantic, https://www.theatlantic.com/politics/archive/2017/05/police-misconduct-sessions/527664/)SEM

California policing played a significant role in the development of federal oversight of local law
enforcement more than 20 years ago. Now, with the new Justice Department resistant to that power, California could show
state and local governments how they can exert more control . Rodney King’s infamous 1991 beating by Los Angeles police officers,
and the subsequent L.A. riots, prompted Congress to expand the attorney general’s authority to monitor police departments. Former President Bill Clinton’s 1994 Violent Crime Control and Law
Enforcement Act, a law frequently criticized today as fuel for mass incarceration, included a small statute that authorized the nation’s chief law-enforcement officer to investigate and file civil
litigation against departments that demonstrate a “pattern or practice” of unconstitutional conduct. The administration of former President Barack Obama embraced its oversight authority,
particularly in its final years; it investigated 25 police departments, including those in Baltimore and Chicago. But President Trump’s Attorney General Jeff Sessions has no
intention of following suit. He has sharply criticized federal investigations , arguing that they’re bad for police “morale,” and has said it’s “not the
responsibility of the federal government to manage non-federal law-enforcement agencies.” Critics perceive Sessions, and the president he serves, as more interested in protecting the police than
public safety—a quality often attributed to the larger Republican Party. But even heavily Democratic areas have mixed track records when it comes to addressing police misconduct. That
California’s reforms and shortcomings are
includes California, which is one of the country’s most liberal states but home to some of its deadliest police. Both

worth examining during the Trump era, as activists and researchers consider state-level measures to counter
possible federal inaction . One policy currently being debated among police-reform advocates is the adoption of a statute that would allow
state attorneys general to investigate and mandate structural changes within troubled departments , just as the
federal Justice Department can. These changes can vary, but could include amending a department’s use-of-force policy or requiring bias training. The
proposal has its origins in California, as it is the only state in the country that explicitly authorizes its attorney general to intervene in this way. William Lockyer was the first California attorney
general to exercise that power, after four Riverside police officers shot and killed a 19-year-old black woman in 1998. The shooting ignited community protests and attracted attention from civil-
rights activists Al Sharpton and Jesse Jackson. The Riverside County district attorney invited Lockyer to review the evidence and circumstances of the case. Though the state did not have enough
to bring criminal charges against the officers, Lockyer told me, he launched a civil-rights investigation into the Riverside Police Department’s policies and practices. In 2001, he filed a judgment
forcing the department to implement specific reforms within a five-year period. The changes included using more experienced officers on overnight shifts and implementing community policing:
assigning officers to monitor specific neighborhoods on a long-term basis and build trust with residents. “The police chief and many others said after the fact that this was the best thing to ever
happen to the Riverside Police Department; it really professionalized the force,” Lockyer said. “I think it makes sense to have some external review, whether federal or state, as a way to check

local politics and pressures that can stand in the way of reform.” The Riverside reform agreement presents one case study to examine stronger
state intervention in local policing , but state oversight is not an easy fix. The California attorney general has had intervention authority for 16 years, but has only
used it a handful of times. That includes investigations launched in December 2016 by then-state attorney general and current U.S. Senator Kamala Harris. Even police-reform researchers who
say these statutes have potential acknowledge they can run into problems when it comes to execution. Erwin Chemerinsky, dean of the University of California, Irvine, School of Law, said he
suspects that political pressures and ambitions deter California attorneys general from exercising their authority more frequently. University of Virginia law professor Rachel Harmon suggested
state funding might also present a barrier. “I don’t think mirroring the federal statute, section 14141, is likely to be the most successful state reform effort,” Harmon said, referring to the order
granted by Clinton’s 1994 crime bill. “It took the federal government a long time to get that train rolling, and I think it’s very unlikely that the resources or expertise exist in most states to engage
Another way for state lawmakers to potentially deter misconduct is through the issuance of
in a similarly effective effort.”

professional police licenses. Much like certifications for health-care professionals or lawyers, these licenses can be revoked and prevent
police from getting law-enforcement jobs in the state again. This is an area where California lags behind. It is one of about five states without such a
mechanism to use after a serious offense. As a result, police chiefs in these states can have complete discretion over the hiring and firing of officers. In an interview last month, Roger Goldman, a
law professor emeritus at Saint Louis University in Missouri, told me chiefs rarely exercise their authority to let officers go. That can have wide-ranging implications for public safety. Sometimes
employers hire an officer with a record of misconduct because they simply don’t have access to his or her work history. But other times, Goldman said, departments know a prospective hire’s
troubled background, but may hire the officer anyway to reduce training expenses. Goldman argues that all states need a strong licensing system, but that plan faces its own set of challenges. A
critical problem is data—or lack thereof. It’s a multilayered issue involving both individual departments and their broader communities. For example, Frontline has reported that black and Latino
communities are less likely to report officer misconduct due to fear that they won’t be believed or may face retaliation. Lawyers and police officials may also keep quiet about officer
improprieties to reduce their liability. Without thoroughly reporting and tracking misconduct, the state law-enforcement training and standards boards tasked with overseeing certifications cannot
accurately assess which officers should be considered for decertification. Officers can then quietly resign and potentially find another law-enforcement job. This problem is even worse in states
like California that have strict laws preventing the public release of records on police misconduct and the outcomes of internal investigations, said Peter Bibring, director of police practices for

the American Civil Liberties Union of California. Ultimately, state governments have wide-ranging authority to adopt measures
for reform . So do cities, though at a more micro level. The key is whether these jurisdictions deem changes necessary on their own, or if they’d only take them under pressure from the
federal government.
 S - police militarization
States solve---they have the power to ban transfers of military equipment---Montana and
New Jersey provide a model
Graham Vyse, 17 , former staff writer at The New Republic, 8-30-2017, "Trump Wants to Re-Militarize the Police. Montana Is Having
None of It.," New Republic, https://newrepublic.com/article/144600/trump-wants-re-militarize-police-montana-none-it)SEM

To hear civil libertarians tell it, Montana’s recent push to de-militarize the police has its roots in the Bozeman BearCat incident of 2014. The city’s police department bought a 17,000-pound
armored vehicle—a Ballistic Engineered Armored Response Counter Attack Truck, or “BearCat”—with money from the federal Homeland Security Grant Program. But it did so without the
knowledge of the City Commission, and public outcry ensued. “Some commenters went to the police department’s Facebook page, usually known for its campy morning posts, and chastised the
department for getting such a vehicle,” The Bozeman Daily Chronicle reported. Soon, the hashtag #senditback began to circulate. Critics in this city of 45,000 worried that souped-up gear would
the
start to make their local police department look more like a military force. And it wasn’t just one shiny new BearCat—or one federal grant—they had to worry about. Since 1990,

Defense Department has transferred over $5.4 billion in surplus military equipment to state, local, and tribal
law enforcement agencies across the country through its “ 1033 Program .” As the Washington Post explained last week, the equipment has
included “armored vehicles, riot gear, rifles, ammunition and computers that had been scrapped by the Defense Department,” and it all comes remarkably cheap. The only fee the local forces

the BearCat, but the controversy led to action at the

have to pay is shipping. After much debate, the Bozeman City Commission ended up voting to keep

state level in 2015, with Democratic Governor Steve Bullock signing a Republican-sponsored bill passed with
bipartisan support. The Montana law blocks state and local police departments from receiving
certain equipment from the 1033 Program , namely weaponized drones, aircraft configured for combat, grenade
launchers, silencers, and militarized armored vehicles . Police are free to request other kinds of military surplus equipment from the federal
government, but they must notify the public within 14 days of doing so. Niki Zupanic, who was the policy director for the American Civil Liberties Union of Montana at the time the law was
The sense of the legislature was that there should be some types of equipment that
passed, told me that the goal was twofold. “

just were not appropriate for local law enforcement ,” Zupanic said. “They [also] thought it was important for those decisions to be more transparent.”
The law hasn’t worked perfectly, as some police forces have been slow or unwilling to publicize their requests for equipment. But this week, national criminal justice

reform advocates are hailing Montana’s law as a model for how states and localities could begin to push
back against President Donald Trump’s attack on policing reform. Addressing the Fraternal Order of Police on Monday, Attorney General Jeff
Sessions announced that the Trump administration is overturning the modest restrictions President Barack Obama placed on the 1033 program in 2015. Following the confrontation between
protesters and police in military-grade gear in Ferguson, Missouri, the year before, Obama banned the transfer of grenade launchers, tanks, and other tracked armored and weaponized vehicles,
plus firearms and ammunition of .50-caliber or higher. At the time, Obama said “militarized gear can sometimes give people the feeling like there’s an occupying force—as opposed to a force
that’s part of the community that’s protecting them and serving them.” For his part, Sessions dismissed these concerns as “superficial” on Monday. Radley Balko, a Post opinion blogger and
author of Rise of the Warrior Cop: The Militarization of America’s Police Forces, tweeted that the attorney general was sending a clear message—one firmly in line with the president’s pardon
of former Arizona Sheriff Joe Arpaio last week. When it comes to policing in America, Balko said, the Trump administration is intent on scrapping “protect and serve” in favor of shock and awe:
Samuel Sinyangwe, a data scientist and racial justice activist, responded to Sessions’ announcement with a tweetstorm
calling for state legislatures and city councils across America to replicate Montana’s bill : “ If
Montana can do it, every state can do it ,” Sinyangwe told me. “ It’s a really important piece of legislation .” As
Sinyangwe pointed out, Montana wasn’t the first state to take action on the military surplus issue. Earlier in 2015, New Jersey passed a law—signed by Governor Chris

Christie—that required “approval from local legislative bodies before municipalities and counties can obtain military

equipment,” according to New Jersey’s ACLU chapter, which hailed the legislation as “a groundbreaking victory.” But Sinyangwe said Montana’s law goes furthest in actually
restricting this type of equipment, making it the best model. He’d like to see states and cities go further still, by deciding to give

their equipment back. “It’s going to take a local- and state- focused strategy ,” he said. Kanya Bennett, a legislative counsel for the
ACLU’s Washington Legislative Office, agreed that New Jersey and Montana can now be models for the rest of the country . “I

certainly anticipate seeing more jurisdictions, including states, taking ownership of this issue and restricting weapons that can
come into their communities,” she told me, “or, at the very least, requiring city councils or other governing bodies to sign off.” Bennett said the ACLU will be releasing its own model legislation
in the coming days, focused on local approval for military equipment transfers as opposed to limits or prohibitions. “The emphasis is really on community engagement,” she stressed, but

individual states may

and localities impose their own bans , as Montana did.
well “We also don’t want to let the federal government off the hook,”
Bennett told me. She noted that Sessions’ announcement drew condemnation from Congress on Monday, including from some Republican lawmakers. “This makes my blood boil,”
Representative Mark Sanford of South Carolina told the Times, from “both a taxpayer standpoint and a civil liberties standpoint.” Senator Rand Paul tweeted that “Americans must never
sacrifice their liberty for an illusive and dangerous, or false, security.” Bennett supports Paul’s plan to reintroduce his “Stop Militarizing Law Enforcement Act,” telling me, “I certainly think we
need to encourage members of Congress who are sensible about this to stay the course. . . . I think there’s just a significant consensus that there is no place for weapons of war in our
communities.” That’s certainly what Representative Hank Johnson, the Democrat who introduced the “Stop Militarizing Law Enforcement Act” in the House, argues. After Sessions’
announcement on Monday, Johnson told me Trump “has no understanding of how the 1033 program can destabilize the very democracy he was elected to lead.” Echoing Obama’s rationale for
the restrictions, the congressman said, “I worry about police agencies arming up to a point where they appear to citizens to be occupying forces.” Sinyangwe gave the example of police using
tanks, riot shields, and assault weapons to execute drug raids, often for marijuana. “They do not uphold a guardian mentality,” he said. “Instead they reinforce the warrior mentality that has
resulted in these high-profile incidents of police violence we’ve seen. . . . These are the type of weapons that are used against protesters and particularly communities of color.” Johnson
the odds are “not good” for his bill to be considered on the floor anytime soon. That’s why
acknowledges that

activists like Sinyangwe are focused on states and localities. Yet Johnson is promising to push forward and make his case to the American people. Paul
tweeted that civil liberties and criminal justice reform “will be major issues this fall” after Congress returns from its August recess. “As Sessions puts his foot on the gas pedal taking us
backwards on criminal justice reform—in his effort to try to please President Trump in order to keep his job—I call on all right-thinking people to resist,” Johnson said, “let their voices be heard,
and let the footsteps of those in nonviolent protest continue to pound the path.”
 S – 14141 DOJ
States solve by creating legislation and enforcement that mirrors 14141
Rushin 14 – Assistant Professor @ University of Illinois College of Law (Stephen, “Federal Enforcement of Police Reform,” 82 Fordham
L. Rev. 3189, Lexis)//BB

Based on these descriptive observations, I make several normative recommendations to improve the
effectiveness of structural police reform as a regulatory mechanism . First, I argue that the DOJ should adopt a more
transparent case selection process that incentivizes police agencies to reform proactively. The qualitative data from this study suggests that the
DOJ uses a wide range of methodologies to select a local police agency for § 14141 litigation.28 No doubt, the DOJ has an enormous
responsibility in identifying which of the nation’s 18,000 police agencies are engaged in a pattern or practice of unconstitutional misconduct. And
given the agency’s limited resources, the case selection process requires the DOJ to make tough choices. The case selection process is messy,
imprecise, and generally hidden from outsiders. This makes it hard for police agencies to reform proactively. From the perspective of local
municipalities, getting selected for structural police reform today is akin to winning a terrible lottery.29 Thus, I suggest that the DOJ develop a
more publicly transparent case selection process that provides departments with incentives and opportunities to address patterns of misconduct.
Second, given the apparent underenforcement of structural police reform in the United States, I contend that
state and national policymakers should look for alternative ways to increase the number of structural police
reform cases. One way to increase the number of structural police reform cases would be for Congress to reformulate § 14141 to grant
private parties a limited equitable right of action to initiate structural police reform. To prevent a private structural police reform claim from
interfering with an active public claim, such a provision could also give the attorney general limited statutory authority to intervene and block a
private claim if the DOJ has already initiated a public investigation pursuant to § 14141. While such a reform would almost certainly increase the
number of structural police reform cases and avoid issues of political spillover, it would be constitutionally tenuous and potentially lead to less
a nother way to increase the number of structural reform cases would be for state
rigorous reforms.30 Conversely,
legislatures to pass statutes that mirror § 14141 and give state attorneys general the authority to
initiate structural police reform. Both of these normative proposals would permit the DOJ to continue the
important job of structurally reforming a small number of problematic police departments, while
empowering a new group of litigants to fill the gaps left by the DOJ’s limited enforcement.

State “mirror” legislation solves

Rushin 14 – Assistant Professor @ University of Illinois College of Law (Stephen, “Federal Enforcement of Police Reform,” 82 Fordham
L. Rev. 3189, Lexis)//BB

Second, given
the apparent inability of the DOJ to consistently or aggressively utilize § 14141,
policymakers should take steps to increase the number of structural police reform cases . One way that Congress
could achieve this is by granting private litigants a limited equitable right of action against police departments engaged in a pattern or practice of
unconstitutional misconduct.351 Some scholars have argued that granting such a private right of action would interfere with active public
claims.352 This is a reasonable concern. In order to alleviate this concern, though, Congress could provide the attorney general with narrow
authority to intervene and block private § 14141 claims against agencies where the DOJ has already initiated a public § 14141 investigation. In
theory, this statutory change would permit the DOJ to continue the important job of structurally reforming problematic police departments, while
empowering a new group of plaintiffs to fill the gaps left by the DOJ’s historically uneven enforcement policies. Congress considered this
possibility in the original Police Accountability Act of 1991 and considered another bill that would do just this in 1999 and again in 2000.353
Such a private right of action would be “especially valuable when the reigning presidential administration’s financial and political commitment to
§ 14141 enforcement is low.”354 The evidence presented in this Article demonstrates that during a period of the Bush Administration, there
appeared to be little commitment to § 14141. In the absence of DOJ action, this statutory change would permit private individuals to fill the gaps
during times of underenforcement. Further, this would likely increase the number of total § 14141 claims brought against American police
departments,355 as DOJ officials openly acknowledge that they cannot possibly litigate in most agencies where there may be a pattern or practice
of misconduct.356 This change would empower civil rights groups to bring pattern or practice claims independently, rather than having to
convince the DOJ that action is warranted. One litigator commented that adding a private right of action to § 14141 would “obviously be
transformative.”357 This proposed change would also potentially overcome concerns about political cooptation of public rights of action and
political spillover, as the power would be directly in the hands of private litigants to seek equitable action against local law enforcement
agencies.358 But this approach would suffer from several drawbacks. To begin with, private parties may “pursue a resolution to the § 14141 suit
that maximizes their expected financial gain rather than a resolution that maximizes effective reform.”359 As Professor Harmon has argued, §
14141 claims could be used by private parties as leverage in § 1983 cases.360 And such a grant of power to private litigants is constitutionally
suspect after Lyons. 361 In light of the potential shortcomings of a private right of action, policymakers may understandably look
for other ways to increase the number of structural police reform cases . For instance, states legislatures could
permit state attorneys general to initiate structural police reform in state court . Professor Samuel Walker and Morgan
Macdonald have recommended the addition of such a state-level structural police reform measure.362 Any state statute could
roughly mirror § 14141 and give state attorneys general the ability to bring suit against police
departments within their state that are engaged in a pattern or practice of unconstitutional misconduct .
This could dramatically increase the number of structural police reform cases . While state attorneys general
may be susceptible to the same resource limitations, political cooptation, and political spillover effects evident in the federal government’s
enforcement of § 14141, structural police reform initiated by state attorneys general may be more rigorous than reforms requested by private
litigants.
 AT abolish police
Abolishing police is a primarily local concern
VoA 20 (“Can Police Reform Laws Pass Congress in Election Year?,” https://www.voanews.com/usa/nation-turmoil-george-floyd-
protests/can-police-reform-laws-pass-congress-election-year)

U.S. House Democrats took the first step Wednesday toward passing police reform legislation in response to the May 25 death of George Floyd, a
black man, while in police custody. Since Floyd's death, protesters have taken to the streets in historic numbers across the United States, many of
them calling for a dramatic policy solution to partially address the problem of racial discrimination – "defund the police." While that call to shift
funding from local law enforcement to social services is not covered in this Congressional legislation, the measure includes many other ambitious
proposals that Democrats say would shift policing in the United States from a "warrior" model to that of a public guardian. Here's a look at the
issues for debate and their chances of becoming law: Can the U.S. Congress "defund the police?" How much can the U.S.
Congress do to address this issue? Funding
at the federal level (that is money appropriated by the U.S. Congress) is just one part
of the funding local police departments around the United States receive. Most of their funding is derived
from state and local sources so even if the political will was there, Congress could not act to
completely defund a police force .
POLICING - QI
 1nc
The fifty states are relevant territories should

 force its officers to waive qualified immunity by pledging to defend them and pay
for any final judgments only if the officers agree to waive qualified immunity.

 And eliminate qualified immunity as a defense to lawsuits charging violations of

federal civil rights, including when state officers are serving in state-federal task
forces
Banning the statue isn’t necessary, states can undermine qualified immunity to the point of
a functional ban.
Crain 20 [Lee R. Crain, a lawyer with Gibson, Dunn & Crutcher in New York City. June 13 2020. "New York, fix qualified
immunity now: Don’t wait on the feds." Nydailynews. https://www.nydailynews.com/opinion/ny-oped-new-york-fix-qualified-
immunity-now-20200613-6kselhqr7bd25n4mtufc6lnpca-story.html] azi

Reforming qualified immunity is becoming one of the core demands of protesters seeking racial justice
across the country. But to date, the only solutions being discussed are federal ones — including legislation like Sen. Cory Booker
and Sen. Kamala Harris’s recent bill. Others have asked the Supreme Court to reverse its prior qualified immunity
rulings — a tall order.
But federal solutions aren’t the only ones available . New York and other states and localities have
tools available to reform qualified immunity today , long before a divided Congress and Supreme Court
can fix this important problem.
Qualified immunity is a defense government officials can assert when they are sued for violating constitutional rights. The defense allows them to win a lawsuit unless
their actions violated “clearly established” constitutional law. Courts have interpreted this defense extremely favorably to government officials, giving them a civil
get-out-of-jail-free card unless their alleged misdeeds were nearly identical to those a prior court already found unconstitutional. Courts, for instance, have allowed
police officers to prevail in lawsuits where they’ve let police dogs attack already-surrendering suspects and where officers have slammed down an unarmed mother
merely for walking away from them. (These cases are currently pending before the Supreme Court.)
Because qualified immunity is based on federal law, the national discourse has focused on federal
solutions. But the states have options, too. Although states can’t formally override qualified immunity just as
they can’t override federal law generally, New York and others can undermine qualified immunity so
substantially as to effectively get rid of it.
When public officials in New York are sued for violating the Constitution, state attorneys — not private
counsel — defend them. And if they lose, the state — not the officer — generally foots the final bill. In this
way, the state takes on what’s known as the duty to defend officers from lawsuits and to indemnify (pay for)
any losses.
But the state doesn’t have to take on these burdens without asking for something in return. Qualified
immunity is not a guaranteed defense : Like most other defenses in lawsuits, a defendant can simply decline to use it as
part of her case or “waive” it.
Because the state often pays for officer defense and final jury awards, and because qualified immunity
can be abandoned by an officer at any time, New York has a solution to the country’s qualified
immunity problem not dependent on any change in federal law. The Empire State can force its officers to
waive qualified immunity by pledging to defend them and pay for any final judgments only if the officers
agree to waive qualified immunity. The state already applies conditions on its defense and indemnification of public
officials — albeit minimal ones like an obligation to cooperate in the defense. The state can add one more , too, and
effectively do away with qualified immunity for good . The solution would be the same for cities and towns who defend and
indemnify their own local officers, too.
New York has other options, particularly if the Legislature worries that getting rid of qualified immunity is too
drastic a change. For instance, the state could require an officer to waive qualified immunity in a smaller subset
of cases — like those involving physical injuries, death or excessive police force. The state could even set up some
sort of pre-clearance review, where an officer who is sued could argue at the beginning of the lawsuit to state attorneys that
her invocation of qualified immunity is worthwhile given the unique circumstances of her case.
Applying these conditions could effectively override qualified immunity , not only allowing New Yorkers whose
constitutional rights have been violated to seek compensation but also sparking needed reform. Overriding qualified immunity could be expensive in the short run,
because it would allow plaintiffs to more easily win against government officials (which results in the state paying more money). Ideally, though, once
government officials learn the true cost of constitutional violations , in theory at least, they will be incentivized to
improve recruiting, training and policymaking to prohibit these violations from occurring in the first
place. At long last, society will bear the cost of the policy failures that have long been borne by individual citizens and specific communities.
It’s time to start talking about state solutions to this national problem. The state Legislature has a chance to do what Congress
can but may never do. New York can reform qualified immunity for all New Yorkers.

The second plank solves --- Colorado proves

Somin 6-26-2020, Professor of Law at George Mason University (Ilya, “ States Can Reform Qualified Immunity on
their Own ,” The Volokh Conspiracy, https://reason.com/2020/06/26/states-can-reform-qualified-immunity-on-their-own/)//BB

The death of George Floyd and resulting nationwide protests against police abuses have focused renewed
attention on the legal doctrine of "qualified immunity," which all too often enables law enforcement officials to escape
liability for egregious violations of constitutional rights. Unfortunately, the Supreme Court recently refused to take any
cases that might overturn or limit the dubious doctrine it itself created . Congress could potentially abolish
or limit qualified immunity by adopting new legislation curbing it. But Senate Republicans say that such a move would be a "poison
pill" and it's not clear that GOP supporters of reform can gather enough votes to get it through this year. The Supreme Court, Congress
or both might yet revisit this issue in the future. But in the meantime, there is much that state
governments can do without waiting for federal action . The vast majority of law enforcement
operations—and law enforcement abuses—are conducted by state and local police. State governments can
address their misdeeds without waiting for either the Supreme Court or Congress to act . The state of
Colorado recently passed a reform law that is a model of its kind , one that other states would do well to imitate. Jay
Schweikert of the Cato Institute has a helpful description of the Colorado law and its advantages: Colorado Governor Jared Polis has signed into
law Senate Bill 20–217 ("SB-217"), otherwise known as the Law Enforcement Integrity and Accountability Act. SB-217 includes a
range of major policing reforms… But perhaps most notably, the law ensures that police officers in Colorado will
not be able to avoid liability for their misconduct due to the unlawful shield of qualified immunity . While
many are summarizing SB-217 as "ending qualified immunity" in Colorado, what the law formally does is permit individuals to bring claims
against police officers who violate their constitutional rights under Colorado law. SB-217 is therefore a kind of "state analogue"
to Section 1983, our main federal civil rights statute . Whereas Section 1983 creates a cause of action allowing individuals
whose rights are violated under the federal Constitution to bring a lawsuit for damages in federal court, SB-217 allows individuals
whose rights are violated under the state constitution to bring a lawsuit for damages in state court . Colorado,
like most states, has a bill of rights that largely mirrors the federal Constitution (and in some ways is even more protective) so this means that SB-
217 will cover things like excessive force claims, unlawful arrests, etc. And most importantly, SB-217 specifically provides that
"qualified immunity is not a defense to liability pursuant to this section." So, the law does not technically "eliminate qualified
immunity," insofar as we're talking about the federal doctrine — if Coloradans bring Section 1983 claims in federal court, those claims will still
be subject to qualified immunity. But the law does ensure, at least with respect to police officers, that Coloradans will have a robust alternative
remedy to Section 1983 claims for violations of their constitutional rights. Colorado is not the first state to enact a "state analogue" to Section
1983, but it is
the first state to specifically negate the availability of qualified immunity as a defense through
legislation. As it turns out, that clarification is crucial, because in nearly all of the other states that have passed similar laws, state courts have
incorporated a similar or identical version of federal qualified immunity, even when the relevant statute says nothing about it. As Schweikert
points out, SB-217 doesn't technically eliminate qualified immunity as a defense to lawsuits charging
violations of federal constitutional rights. But it effectively achieves the same goal by eliminating it as
an obstacle to lawsuits under the state constitution, which provides much the same rights . There are,
nonetheless, a few limitations to the law. Most obviously, it does not apply to federal law enforcement agencies. In addition, it may not
apply to "state-federal task forces," where state and local cops working with the feds can claim immunity to lawsuits under state law,
on the theory that they're really acting as federal agents, rather than state ones. As far as I can tell, the text of SB-217 doesn't explicitly address
state-federal task forces, and it is not clear to me whether state and local police participating in them can still claim qualified immunity as a
defense to suits under state law or not. I welcome correction on this point, from those more expert in Colorado law. But, in the meantime, I
would tentatively suggest that Colorado should amend the law to explicitly cover this scenario . Another issue
SB-217 does not address is cases where the federal government enables state and local law enforcement to get around state laws restricting asset
forfeiture by having the federal government "adopt" state seizures and then in effect share the loot with their state and local friends. Such policies
enable cops to profit from the seizure of property owned by people who have never even been charged with any crime, much less convicted. It is
a serious problem in many states around the country, one that particularly victimizes the poor and racial minorities. SB-217 does not seem to bar
qualified immunity as a defense to illegal asset forfeitures "adopted" by the federal government. Fortunately, a 2017 Colorado law already
imposes tight limits on state and local police participation in the federal "equitable sharing" program that facilitates adoption. But Colorado
should take this reform even further, and forbid such adoption altogether. Other states that might imitate the Colorado reform should also
address this issue—particularly those that don't already have legislation like the 2017 Colorado law.
 S
Colorado proves its possible.
Cohen 20 [Li Cohen. June 19 2020. "Colorado passes sweeping police reform bill," CBS News.
https://www.cbsnews.com/news/colorado-passes-sweeping-police-reform-bill/] azi

Colorado passed a sweeping police reform bill on Friday that , among other reforms, bans chokeholds and makes officers
personally liable if they are found guilty of violating a person's civil rights. Colorado is one of the first
states that will allow police officers to be financially liable for civil misconduct suits, according to the state's ACLU.
The bill, signed by Governor Jared Polis on Friday morning, mandates the following, according to CBS Denver:
All local and state police officers must wear body cameras by 2023
Body camera footage must be made public
Chokeholds are prohibited
Shooting at fleeing suspects is prohibited
Deadly force can only be used if a person's life is imminent danger
Police must report every instance in which they stop someone who they suspect of a crime; they must also include that person's race, gender, and ethnicity
Police must report other officers for wrongdoing
Officers can be held personally liable for damages up to $25,000 if they are found guilty of violating an individual's civil rights
Officers can turn off body cameras "to avoid recording personal information that is not case related," or if they are working undercover or are on an unrelated
assignment, according to the bill. They may also turn off their camera "when there is a long break in the incident; and in administrative, tactical, and management
discussions."
If officers do not follow these rules, they may be subject to criminal liability and penalty under the law,
and will face discipline "up to and including termination," the bill says. Officers who intentionally don't turn on or tamper with their
camera will lose their certification for at least one year.
The bill also states that police should "apply nonviolent means, when possible, before resorting to the use of physical force." The rules on the use of physical force are
less stringent for officers who work in jails, prisons, or correctional institutions.
The bill also states that " qualified immunity is not a defense to liability ," blocking a practice that is
common nationwide. The American Civil Liberties Union (ACLU) of Colorado tweeted that Colorado is one of the first states in the
country to end qualified immunity.
Many have argued that qualified immunity, which protects police officers from financial liability in civil suits, enables excessive
force.
 AT federal appeals
Johnson v. Fankell determined that state courts do not have to enforce federal qualified
immunity laws and defendants can not appeal in federal court.
Oyez [Oyez, the Oyez Project at the Illinois Institute of Technology's Chicago-Kent College of Law is an unofficial online
multimedia archive of the Supreme Court of the United States. “Johnson v. Fankell.” https://www.oyez.org/cases/1996/96-292]
azi

Facts of the case

Kristine L. Fankell filed an action for damages in Idaho State Court, alleging that the termination of her state
employment by Marian Johnson, and other officials of the Idaho Liquor Dispensary, deprived her of property without due process in
violation of the Fourteenth Amendment. The trial court dismissed Johnson and others' motion to dismiss,
which asserted that they were entitled to qualified immunity. The Idaho Supreme Court dismissed their
appeal from that ruling, explaining that the denial was neither an appealable final order under Idaho
Appellate Rule 11(a)(1) nor appealable as a matter of federal right .
Question
Do defendants in an action brought under 42 USC section 1983 in state court have a federal right to an interlocutory
appeal from a denial of qualified immunity?
Conclusion
No. In unanimous opinion delivered by John Paul Stevens, the Court held that defendants in a state-court section 1983 action
do not have a federal right to an interlocutory appeal from a denial of qualified immunity. The Court
reasoned that in construing state rules allowing appeals from final judgments, state courts did not need to

accept the federal definition of a "final decision" within the meaning of federal law. The right to an
interlocutory appeal of a denial of immunity "is a federal procedural right that simply does not apply in a
non-federal forum," Justice Stevens wrote for the court.

Johnson v. Fankwell is true in the context of qualified immunity.

Brown 10 [Mark R. Brown, graduated from the University of Louisville School of Law, B.S. from the University of Dayton,
LL.M. at the University of Illinois, clerked for the Honorable Harry W. Wellford, Judge of the United States Court of Appeals for
the Sixth Circuit, served as a Judicial Fellow at the Supreme Court of the United States, currently holds the Newton D.
Baker/Baker & Hostetler Chair at Capital University. 2010. “Qualified Immunity and Interlocutory Fact-Finding in the Courts of
Appeals.” Penn State Law Review. http://www.pennstatelawreview.org/articles/114/114%20Penn%20St.%20L.%20Rev.
%201317.pdf. Footnote 18 included in brackets.] azi
Even when the law is clear, qualifiedimmunity affords governmental defendants an added layer of factual
protection; according to Anderson v. Creighton, 16 the governmental defendant must have reasonably known under all the facts and circumstances that her
actions were illegal.17 Thus, even though the law was generally clear, and even though the governmental defendant violated it, immunity is still justified if she could
not have reasonably known as a factual matter that she should not have acted as she did.
This double-edged advantage for governmental defendants is magnified, moreover, by the collateral order doctrine, which permits immediate appeals from denials of
qualified immunity in federal court.18
[State courts are free to fashion their own rules on interlocutory appeals. See Johnson v. Fankell , 520 U.S.
911, 921 (1997) (holding that Idaho‟s failure to recognize interlocutory appeals did not offend § 1983 ).]
MARIJUANA
 1nc
The 50 states and all relevant territories should legalize marijuana and block state and
local cooperation with federal law enforcement over marijuana.
Solves and the federal government can’t block the counterplan
Kreit 17 – JD @ U Penn, Professor of Law @ Thomas Jefferson School of Law, leading expert in the field of illegal drug and marijuana law
(Alex, “Reforming Criminal Justice,” Ch 5)//BB

After decades of waging war on marijuana, voters in many states have come to see marijuana prohibition
as a failure and believe that legalization is a better option . The Pew Research Center has been polling attitudes about
marijuana legalization since 1969, when just 12% of Americans believed marijuana should be made legal. Its most recent survey, released in
October 2016, found that 57% of U.S. adults favor legalizing marijuana while just 37% favor prohibition.57 The numbers were
nearly reversed just a decade ago, with only 32% in favor of legalization and 60% opposed in 2006.58 In this Section, I make the case that
state policymakers would be wise to follow the public on this issue and work to enact marijuana-
legalization laws in their states. First, I provide a brief history of state marijuana reforms. Second, I review the evidence so far from
states that have legalized marijuana. These studies show that, by and large, legalization has been a success and a much better option than
prohibition. Finally, I highlight some of the considerations and choices facing policymakers when enacting marijuana legalization. A. A BRIEF
HISTORY OF STATE MARIJUANA REFORMS The story of state marijuana legalization dates back to 1996, when California passed the first
statewide medical-marijuana legalization law. The federal government did all that it could to try to stop the law in its tracks, raiding medical-
marijuana dispensaries and prosecuting some of the operators.59 Despite its best efforts, however, the federal government was not able to stop the
trend. Throughout the 2000s, more and more states passed medical-marijuana laws, and marijuana stores
started opening faster than the federal government could shut them down. The problem came down to
resources. The federal government has the legal authority to prosecute any marijuana offense, from a marijuana
kingpin to a user in possession of a single joint. But it only has the man power to go after a small fraction of marijuana
offenders—almost all marijuana enforcement is carried out by state and local police .
Start FN 60
Robert A. Mikos, On the Limits of Supremacy: Medical Marijuana and the States’ Overlooked Power to Legalize Federal Crime, 62 VAND. L.
REV. 1421, 1463-67 (2009) (arguing that the federal government did not succeed in blocking state medical
marijuana laws because of its limited law enforcement resources )
End FN 60
As a result, the federal government did not succeed in shutting down state medical-marijuana laws . Instead,
federal enforcement served mostly to make it more difficult for states to implement effective regulations.61 By the time Colorado and
Washington passed the first laws legalizing marijuana for all adult use in 2012,
it was clear to most observers that the federal
government was fighting a losing battle. Perhaps in recognition of this dynamic, the DOJ announced a
cease-fire in its war on state-legal marijuana in late 2013, in the form of a memorandum advising federal
law-enforcement officials not to use scarce resources to go after people in compliance with state
marijuana laws.62 The election of Donald Trump and his selection of Jeff Sessions to be attorney general have raised questions about
whether the federal government’s hands-off approach will continue. Even if the federal government reverses course ,
however, the experience with medical-marijuana laws suggests it will be unable to block state
legalization laws entirely. Since Colorado and Washington voters legalized marijuana, six more states have followed suit. In 2014, Oregon
and Alaska passed marijuana-legalization ballot measures. And, in 2016, California, Maine, Massachusetts, and Nevada joined the club. Since
2012, voters in only two states have rejected marijuanalegalization proposals. In 2015, Ohioans decisively rejected a controversial ballot measure
that would have legalized marijuana by giving the initiative’s backers a monopoly on marijuana production. In 2016, an Arizona legalization
ballot measure was narrowly defeated, with 51.32% against and 48.68% in favor.63
 S
States solve and public support prevents the feds from blocking it
Kreit 17 – JD @ U Penn, Professor of Law @ Thomas Jefferson School of Law, leading expert in the field of illegal drug and marijuana law
(Alex, “Reforming Criminal Justice,” Ch 5)//BB

CONCLUSION
This chapter outlines the case for marijuana legalization, along with a few of the key questions policymakers will want to study when considering
marijuana legalization. Barring a dramatic reversal of public opinion, marijuana legalization is more a question
of when than if for policymakers. And, in light of the generally positive results of state marijuana-legalization laws so far, it is
exceedingly unlikely public opinion will turn. In the coming years then, we can expect to see more states adopt
marijuana-legalization laws. While the prospects for marijuana reform at the federal level may be dim under the current administration,
it is hard to imagine that a decade from now federal law will not have changed to accommodate state marijuana-
legalization laws in some form or fashion. In this environment, state policymakers would be wise to take this issue
up sooner than later . Marijuana prohibition has been a costly failure, requiring states to invest a significant amount of money on
enforcement while losing out on potential tax revenue, all with little to show for it. Marijuana legalization may not be as perfect as some
advocates make it out to be. But if implemented well, it is far better than the status quo. By leaving marijuana legalization to the ballot-measure
process, however, state legislatures have so far ceded many of the policy details to legalization advocates and marijuana businesses. It is time
for state legislators to take the lead on this important criminal justice reform issue.

Medical marijuana proves

Mikos 9 – Professor of Law @ Vandy (Robert, “On the Limits of Supremacy: Medical Marijuana and the States’ Overlooked Power to
Legalize Federal Crimes,” VANDERBILT LAW REVIEW, SSRN)//BB

I argue that statesretain both de jure and de facto power to exempt medical marijuana from criminal sanctions,
in spite of Congress‘s uncompromising—and clearly constitutional—ban on the drug. States may continue to
legalize marijuana because Congress has not preempted —and more importantly, may not preempt —state
laws that merely permit (i.e., refuse to punish) private conduct the federal government deems objectionable . To be
sure, the objectives of the state and federal governments clearly conflict : states want some residents to be able to use
marijuana, while Congress wants total abstention. But to say that Congress may thereby preempt state inaction (which is
what legalization amounts to, after all) would, in effect, permit Congress to command the states to take some action—namely, to
proscribe medical marijuana. The Court‘s anti-commandeering rule, however, clearly prohibits Congress from doing this.9 I develop a new
framework for analyzing the boundary between permissible preemption and prohibited commandeering—the state-ofnature benchmark. The
state-of-nature benchmark eliminates much of the confusion that has clouded disputes over state medical marijuana laws. It suggests that as long
as states go no further—and do not actively assist marijuana users, growers, and so on—they may continue to look the other way when their
citizens defy federal law. On a more practical level, the fact that state exemptions remain enforceable is consequential; these states laws, in
other words, are not merely symbolic gestures. The main reason is that the federal government lacks the
resources needed to enforce its own ban vigorously : although it commands a $2 trillion dollar (plus) budget, the federal
government is only a two-bit player when it comes to marijuana enforcement . Only one percent of the roughly
800,000 marijuana cases generated every year are handled by federal authorities.10 The states, by virtue of their greater law enforcement
resources (among other things), hold the upper hand. The federal ban may be strict —and its penalties severe—but without
the wholehearted cooperation of state law enforcement authorities, its impact on private behavior will
remain limited. Most medical marijuana users and suppliers can feel confident they will never be caught by the federal government.
Even more interestingly, analysis of the medical marijuana conflict reveals that states also have comparatively strong sway
over the private (i.e., non-legal) forces that shape our actions, such as our personal beliefs about behavior and
our social norms. Simply by allowing their residents to use marijuana for medical purposes, the states have arguably fostered more
tolerant attitudes toward the practice, making it seem more compassionate, less dangerous, and less
wicked, thereby removing or softening the personal and societal reproach that once suppressed medical use of the
drug. The expressive power of permissive state legislation —largely ignored by the academy— cannot easily be
undone or countered by Congress . As a result, the states may possess even more de facto power vis-à-
vis Congress than is commonly perceived. At a minimum, this Article provides a definitive study of one of the most important
federalism disputes in a generation.11 It shows that states have wielded far more power and influence over medical marijuana than previously
 The states have not only kept the patient breathing, so to speak, in anticipation of a day when federal policy might change; they
recognized.
have, for all practical purposes, already made medical marijuana de facto legal within their jurisdictions. In other
words, the war on medical marijuana may have ended long before the Obama Administration began to suggest
that a partial truce should be called,12 and it may have been the states—not the federal government—that emerged as the
victors.

The signal of the CP deters federal intervention

Mikos 9 – Professor of Law @ Vandy (Robert, “On the Limits of Supremacy: Medical Marijuana and the States’ Overlooked Power to
Legalize Federal Crimes,” VANDERBILT LAW REVIEW, SSRN)//BB

In short, even if they cannot shield people from federal legal sanctions or change federal law in the short term,
states can make people feel secure from social sanctions by credibly signaling public approval of once
taboo conduct.202 In this way, states wield another powerful influence on private behavior, an influence
that is not necessarily subject to congressional preemption .203 What is more, by signaling societal approval of
marijuana use, states may even hamstring Congress‘s already limited ability to impose legal sanctions on
those who violate the federal ban. For example, jurors may be unwilling to convict people who use marijuana
for medical purposes (or the people who help them) if they know that local society generally approves of medical
marijuana.204 In fact, in order to avoid sympathetic juries, the DEA has been attacking medical marijuana suppliers primarily by using civil
injunctions and civil sanctions such as forfeiture,205 which are tactics that do not require jury participation.
Given the federal government‘s limited enforcement resources and its comparatively weak influence over
personal preferences, moral obligations, and social norms, many citizens are not dissuaded from using
marijuana by the existence of the federal ban. States have succeeded at removing—or at least diminishing—the
biggest obstacles curbing medical use of marijuana : state legal sanctions and the personal, moral, and social disapproval that
may once have inhibited use of the drug. To be sure, they cannot eliminate all of the barriers to medical use—those that exist in the state of nature
(e.g., wealth constraints) or those posed by federal sanctions—but they have gone quite far, as participation rates in state programs demonstrate:
roughly 400,000 people may now be using marijuana legally for medical purposes in thirteen states.206 In short, though Congress‘s
categorical ban on marijuana is constitutional, state exemptions have become the de facto governing
law of the land.

Medical marijuana proves

Mikos 9 – Professor of Law @ Vandy (Robert, “On the Limits of Supremacy: Medical Marijuana and the States’ Overlooked Power to
Legalize Federal Crimes,” VANDERBILT LAW REVIEW, SSRN)//BB

The Article also explains why permissive state laws matter— i.e., why states are able to foster or at least enable federally
proscribed behavior, even when they cannot engage in, require, or facilitate it or block federal authorities
from imposing their own harsh sanctions on it—i.e., even when states cannot depart from the state of nature. The federal
government does not have the law enforcement resources needed to enforce its bans vigorously (although this
could vary somewhat by context213), and its ability to marshal the most important private and social behavioral
influences to enhance compliance with its bans is likewise limited . As a practical matter, by simply legalizing
a given behavior , the states can remove or at least diminish the most significant barriers inhibiting that
behavior, including state legal sanctions (which often can be enforced vigorously) and the personal, moral, and social
disapproval of the behavior as well.
Though Congress has banned marijuana outright through legislation that has survived constitutional
scrutiny, state laws legalizing medical use of marijuana not only remain in effect, they now constitute the
de facto governing law in thirteen states. These state laws and most related regulations have not been—
and, more interestingly, cannot be —preempted by Congress, given constraints imposed on Congress‘s
preemption power by the anti-commandeering rule, properly understood. Just as importantly, these state laws matter; state
legalization of medical marijuana has not only eliminated the most relevant legal barrier to using the drug, it has arguably fostered
more tolerant personal and social attitudes toward the drug . In sum, medical marijuana use has survived and
indeed thrived in the shadow of the federal ban. The war over medical marijuana may be largely over, though skirmishes will
undoubtedly continue, but contrary to conventional wisdom, it is the states, and not the federal government, that have
emerged the victors in this struggle. Supremacy, in short, has its limits .
 S - follow-on
Counterplan causes follow-on---it’s unique because pressure only works with widespread
legalization
Somin 14 – Law Prof @ George Washington, (Ilya, “Prospects for marijuana legalization in 2014,” Washington Post,
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/02/09/prospects-for-marijuana-legalization-in-2014/)

John Ross has written a very thorough Reason article documenting all of the measures for liberalizing marijuana laws likely to be considered at
the state level in 2014. He counts 13 states that are considering following Colorado and Washington’s lead in
legalizing marijuana possession for recreational use, and 16 that may join the 20 states that currently permit medical marijuana. Not all
of these laws are likely to pass. But if a large number do, it could greatly accelerate the trend
towards marijuana legalization . This is especially true if legalization hits large states such as
California , where a legalization ballot initiative narrowly failed in 2010; public opinion in both
California and the nation as a whole has become more favorable to legalization since then. Even many
conservatives have begun to rethink the War on Drugs . Even if numerous states legalize marijuana, the drug will still be
illegal under federal law. In its badly misguided decision in Gonzales v. Raich (2005), the Supreme Court ruled that Congress’ power to regulate
interstate commerce allows it to ban the possession of marijuana even in cases where the marijuana in question has never crossed state lines or
been sold in an market anywhere. The Obama administration has taken a very equivocal position on the question of whether federal prosecutions
widespread legalization at
for marijuana distributors will continue in states that legalize marijuana under their own laws. However,
the state level will put pressure on the federal government to repeal the federal ban . Even if it does
not, federal law enforcement resources are extremely limited, and it will be difficult or impossible for the
feds to enforce a marijuana ban without state cooperation. If marijuana legalization does sweep the nation
over the next few years, perhaps it will also lead more people to reconsider the War on Drugs as a whole .
 S - AT shut down growers
The feds can’t shut down growers
Mikos 9 – Professor of Law @ Vandy (Robert, “On the Limits of Supremacy: Medical Marijuana and the States’ Overlooked Power to
Legalize Federal Crimes,” VANDERBILT LAW REVIEW, SSRN)

This lack of barriers implies that if

the federal government shuts down one large marijuana supplier, another one
could easily take its place. Shut down all of the large growers, and smaller operators could step in to
satisfy demand. Shut them all down—an expensive and extremely unlikely endeavor—and many
marijuana users would simply grow the stuff themselves . To be sure, campaigns against large suppliers could dent the
supply of marijuana and perhaps its use in the short-run. However, as long as demand for the drug remains high,166 federal
eradication campaigns may simply push marijuana production into smaller operations that are harder to
detect, more costly to prosecute given their sheer numbers, and subject to lower sanctions under the
CSA.167 Simply put, without a substantial increase in federal law enforcement resources, the campaign
against marijuana growers would likely be futile . Moreover, such a campaign may have an unintended and deleterious
consequence: to the extent users turn to smaller (and more numerous) suppliers or simply grow the drug themselves, the federal campaign would
frustrate state efforts to supervise the supply of marijuana.168
 S - AT federal bully pulpit
Federal illegality doesn’t deter use
Mikos 9 – Professor of Law @ Vandy (Robert, “On the Limits of Supremacy: Medical Marijuana and the States’ Overlooked Power to
Legalize Federal Crimes,” VANDERBILT LAW REVIEW, SSRN)

Though it is commonly assumed that our preferences to engage in or refrain from a given behavior are exogenous to law, lawmakers arguably can
change people‘s views of a given behavior, and thus their inclination to engage in that behavior.171 One way lawmakers can do this is by passing
laws that ban and therefore condemn the behavior. The theory is that the behavior—like the use of marijuana—will
seem more dangerous or depraved if the law formally condemns it . A second way lawmakers can shape preferences is by
―educating‖ (or more pejoratively, indoctrinating) the public. The federal government has, in fact, employed this strategy in its war on
marijuana. Since 1998, the Office of National Drug Control Policy (―ONDCP‖) has spent more than $1.5 billion on an aggressive ad campaign
designed to discourage marijuana use—medical or otherwise—particularly among youth, largely by portraying the drug as dangerous, wicked,
and uncool.172 To the extent lawmakers can shape preferences and redefine self-interest, they can diminish citizens‘ desire to engage in
prohibited activity without having to impose costly legal sanctions.173 The federal government‘s campaign against
marijuana, however, appears not to have altered public perceptions of marijuana use . Studies have shown
that the anti-marijuana campaign has not reduced the likelihood of marijuana use, nor has it changed
public attitudes toward the drug.174 People do, of course, refrain from using marijuana because they believe it is ineffectual,
dangerous, or wicked, but those beliefs appear not to have been changed or reinforced by the ONDCP‘s aggressive anti-marijuana campaigns.
The reason the federal government‘s campaign is not shaping preferences may be that citizens simply do
not trust the messenger. Not surprisingly, the persuasiveness of any campaign may depend as much on its source as on its content.
Imagine, for example, Cheech Marin trying to convince students not to use drugs, or one-time General Motors‘ Hummer division trying to
convince Americans that global warming is a hoax. The government‘s ability to shape citizens‘ preferences hinges in
large part on lawmakers‘ credibility and trustworthiness .175 And as a general matter, the public does not
trust federal authorities very much, particularly compared to their state counterparts .176 When it comes
to drug policy in particular, the public seems to harbor doubts about the motive behind certain federal
drug policies. One common concern is that the federal marijuana ban is not premised on science but is instead motivated by the financial
interests of large drug manufacturers, which could lose billions in drug sales if an ordinary plant were to displace some of their patented
medicines, or so the story goes.177 Whether such beliefs are correct is beside the point; what matters is simply that as long as the federal
government suffers a trust deficit, it will have a difficult time nudging people‘s beliefs in the direction
federal lawmakers deem desirable.
State lawmakers, by contrast, arguably have more influence over public beliefs and preferences . Owing to a variety of
factors, citizens on average deem state and local governments far more trustworthy than the national
government.178 Consequently, state lawmakers may have an advantage vis-á-vis their federal counterparts
when it comes to manipulating citizens‘ views of marijuana use or other behaviors. By legalizing medical use of
marijuana, for example, state laws may have softened public attitudes towards it. The use of marijuana may seem
more efficacious and less dangerous or wicked because it is permitted by state law . In addition, though states have
not waged a public relations campaign to match that of the ONDCP, proponents of medical marijuana laws have run effective political campaigns
in getting such laws passed. Those campaigns have generally portrayed medical marijuana in a very sympathetic light; they have portrayed
exemptions as rooted in compassion and hope for the sick, rather than being about dangerous and reckless indulgences for the wicked.179
 S - AT federal deterrence
People aren’t deterred by the federal law
Mikos 9 – Professor of Law @ Vandy (Robert, “On the Limits of Supremacy: Medical Marijuana and the States’ Overlooked Power to
Legalize Federal Crimes,” VANDERBILT LAW REVIEW, SSRN)

Congress‘s ban may have lost its moral influence because so many people flout it, and federal authorities
have done little thus far to punish them. In other words, the lack of enforcement of the federal ban may have
undermined not only the deterrent effect of the ban‘s sanctions, but also the deterrent effect of the
generalized moral obligation to obey the law. Second, people may feel relieved of the obligation to obey the
federal ban because state law permits marijuana use .188 It is, of course, possible to obey both state and federal law by not
using marijuana at all, but citizens may dismiss the obligation to obey federal law when they deem the state —and
not Congress—as having the ―legitimate right to dictate their behavior regarding marijuana use.189 Congress‘s
perceived right to dictate behavior may be even weaker in the nine states where medical marijuana laws were passed by voter referenda. In such
states, people may see themselves collectively as having the exclusive right to dictate marijuana policy, in
which case the federal ban will command very little moral authority .190

State law matters far more

Mikos 9 – Professor of Law @ Vandy (Robert, “On the Limits of Supremacy: Medical Marijuana and the States’ Overlooked Power to
Legalize Federal Crimes,” VANDERBILT LAW REVIEW, SSRN)

In the case of marijuana, of course, state and federal laws send conflicting signals about the social
acceptability of using the drug as medicine. The CSA strongly suggests societal disapproval, but permissive state laws suggest societal
tolerance—and possibly even approval—of medical use of the drug. If citizens take their cues from federal law, Congress
may have far more de facto impact on marijuana use than previous Sections have suggested. Conversely, if citizens take their cues
from state law, Congress‘s influence in this domain is even weaker than previously noted. When it comes to educating citizens
about norms, state laws generally give citizens more current and relevant information , and as a result
are more likely to shape their choices than are federal laws. For one thing, state laws typically convey more
up-to-date information about current social norms. The main reason is that states employ comparatively
majoritarian-friendly lawmaking processes, such as referenda, that make updating state laws to keep up
with changes in societal views much easier .198 To be sure, passage of a congressional law regulating activity X signals
something about how the nation feels about X when the law is passed. Indeed, because it takes supermajority support to push any measure
through Congress, laws that do emerge from the national process usually signal a strong national consensus and norm. But because federal
laws are so resistant to change, the signal broadcast by the passage of federal law fades quickly with
time.
 S - AT chilling
No chilling effect
Mikos 12 – Professor of Law @ Vandy (Robert, “On the Limits of Federal Supremacy When States Relax (or Abandon) Marijuana Bans,”
CATO Policy Analysis, 12)//BB

Enforcement of Legal Sanctions

According to neoclassical economic theory, laws need the backing of incentives (carrots or sticks) to change
human behavior. If the government wants to promote a certain type of behavior, it must reward that behavior (such as with a subsidy).
Conversely, if the government wants to curtail the behavior, it must punish the behavior (with fines or jail time). Viewed from this
perspective, the federal ban on medical marijuana likely does little to deter possession or
cultivation/distribution of the drug. Though the CSA certainly threatens harsh sanctions, the federal government
does not have the resources to impose them frequently enough to make a meaningful impact on
proscribed behavior.1'" To begin, the federal law enforcement apparatus is small . The federal government employs
105,000 law enforcement agents, only about 4,400 of whom work for the DEA, the lead federal agency on drug crimes.
The remainder work for dozens of departments-Federal Bureau of Investigation (FBI); Immigration and Customs Enforcement (ICE); Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF); and so on—and spend only a fraction of their time handling drug crimes.142 All told,
federal agents made 154,000 arrests in 2007-30,000 for all drug offenses, including 7,276 for marijuana.145
These figures amount to only 1 percent of all criminal arrests , 1.6 percent of all drug arrests, and less than 1 percent of
all marijuana arrests made in the United States that year. Compared to the number of federal law enforcement agents, the number of
potential targets in the war on marijuana is enormous . More than 14.4 million people regularly use marijuana in
the United States every year, including near 5 million who live in states that legalize medical use.145 While only a small portion of
these users, perhaps 1.4 million or so, does so legally under state law pursuant to medical exemptions, there is no easy
way for the federal government to focus its scarce resources on them alone. After all, it is not as if these
medicinal users wear a sign identifying themselves as such. Assuming it must select marijuana cases at random ,
the federal government, on average, would need to pursue roughly 4 marijuana possession cases in the
medical exemption states before coming across just one case that a state would dismiss pursuant to a
medical exemption. Given limited resources and a huge number of targets , the current expected
sanction for medical marijuana users is quite low . Suppose that only 5 percent of all marijuana offenders are
currently discovered by law enforcement (state and federal combined).147 Of that figure, only one percent of
offenders are handled by federal law enforcement. Assuming no cooperation between the sovereigns, only 0.05
percent—or roughly 1 in 2,000 —of medical marijuana users would be uncovered by federal authorities following current
practices. Hence, even if nominal federal sanctions are set very high (as they currently are), the expected legal
sanction remains quite low. For example, a fine of $100,000 results in an expected sanction of only S50 (S 100,000 * .0005), a
price many people would be willing to pay for access to marijuana—especially considering that many deem it a life-
changing medicine.
IMMIGRATION
 S – refuse to partner
The counterplan solves detention and deportation by refusing cooperation with the feds
Harvard Law Review 19 (States’ Commandeered Convictions: Why States Should Get a Veto Over Crime-Based Deportation,
http://harvardlawreview.org/wp-content/uploads/2019/06/2322-2343_Online.pdf)//BB

Though such tensions turn increasingly into lawsuits,

11. See infra section I.B, pp. 2327–28.
no state has yet challenged the central premise of this system: that the federal government may condition
deportation on the bare fact of a state conviction — even when the state that obtained it disagrees. This Note argues that such
involuntary “triggering” effects an unconstitutional commandeering of the state’s criminal law
enforcement.
12. The anticommandeering principle forbids the federal government from conscripting unwilling states
into enforcing federal regulatory programs. See infra section I.A, pp. 2324–27.
Show More
To be sure, the federal government itself detains and deports noncitizens, demanding no state assistance
at the final step. But the process begins earlier — sometimes irrevocably — with state police, prosecutors,
judges, and juries. By fulfilling their responsibilities under state law, these actors trigger significant federal sanctions
on the individuals the state seeks to regulate — whether or not the state believes those sanctions to be
warranted.
This amounts to commandeering. Formally, crime-based deportations don’t normally result from a federal determination that a
noncitizen committed crimes; they result rather from the federal determination that a state adjudicated the noncitizen guilty of (state) crimes.
Under the Court’s commandeering cases, that should make all the difference: the federal government has elected to base deportation not on direct
regulation of individuals, but rather by operating through states. Practically, the case is stronger still: by triggering deportation based exclusively
on state convictions, the federal government outsources the tasks of investigating criminal conduct of noncitizens, apprehending them, and
adjudicating their guilt. The federal government thereby gets the benefits of the state’s criminal justice system without sharing in its costs. And
because the federal government’s (in)action flows inexorably from the state’s, no one can be quite sure who to blame when the federal
government detains and deports someone (or fails to do so). Political accountability — the commandeering cases’ lodestar — is eviscerated.
Of course, the federal government maintains broad immigration powers , including the power to detain and deport
noncitizens guilty of reprehensible conduct. It may, if it chooses, ascertain that conduct on its own and act accordingly. If it hopes to outsource
such determinations, it may ask for and receive help from consenting states’ law enforcement. And it may coax or coerce states
disinclined to help in myriad ways — including by conditioning federal funds on their cooperation. It simply cannot deny
states all opportunity to (withhold) consent to their criminal justice systems’ serving federal
immigration enforcement .

Refusal to partner over immigration solves

Gerken 17 – Professor of Law (Heather, “We’re about to see states’ rights used defensively against Trump,” Vox,
https://www.vox.com/the-big-idea/2016/12/12/13915990/federalism-trump-progressive-uncooperative)//BB

Progressives have long been skeptical of federalism, with the role that “states’ rights” played in the
resistance to the civil rights act and desegregation typically featuring prominently in their criticism. Its ugly history even led
one 20th-century scholar to insist that “if one disapproves of racism, one should disapprove of federalism.” Even now, with every
national institution in the hands of the GOP, progressives associate federalism with conservatism and shy
away from invoking the language of federalism to change the policies they oppose. That is a mistake . Federalism
doesn’t have a political valence . These days it’s an extraordinarily powerful weapon in politics for the left
and the right, and it doesn’t have to be your father’s (or grandfather’s) federalism. It can be a source of
progressive resistance — against President’s Trump’s policies, for example — and, far more importantly, a source for
compromise and change between the left and the right. It’s time liberals took notice. Here are three important ways progressives can
take a chapter from the conservatives’ playbook and use their control over state and local governments to influence the national
agenda, shape policy results, and encourage political compromise . If Jerry Brown or Andrew Cuomo or Eric Garcetti is
looking for a “to do” list for the next four years, it’s here. Uncooperative federalism People assume that if Congress changes a
law, everything changes on a dime. They forget that Congress depends heavily on states and localities to
implement federal policy. The federal government doesn’t have enough resources to deal with
immigration , enforce its own drug laws, carry out its environmental policies, build its own infrastructure, or administer its health care
system. Instead, it relies on the states to do much of this work. We call such arrangements between the
states and federal government “cooperative federalism.” But we forget that they create many
opportunities for what Jessica Bulman-Pozen and I have called “uncooperative federalism.” Progressives at the state
and local level can influence policy simply by refusing to partner with the federal government. By
doing so, they force issues onto the national agenda, foregrounding debates that the Republicans would
rather avoid. More importantly, defeating state or local opposition costs fiscal resources and political capital the
federal government would rather employ elsewhere . The GOP-controlled federal government can’t put
cops on every beat or bureaucrats at every desk; it needs state and local officials to get its agenda through. If
blue states and cities refuse to implement Trump’s agenda, Republicans will sometimes be forced to compromise
rather than pay a political and fiscal price.

States banding together can block federal enforcement efforts --- briefs and lawsuits
magnify the influence
Reich 18 – PhD, Professor of Political Science @ The University of Kansas (Rock Chalk) (Gary, “Hitting a Wall? The Trump
Administration Meets Immigration Federalism,” Publius: The Journal of Federalism, 48.3)

The first year of the Donald Trump administration signaled a new era in U.S. immigration policy, as the president set about dismantling the
immigration initiatives of his predecessor and pursuing a program of stepped-up arrests of unauthorized immigrants, cuts in legal immigration
and refugee admissions, punitive sanctions for so-called “sanctuary” cities and states, and a request to fund construction of a wall along the
United States–Mexico border. Trump’s initiatives, if fully implemented, would constitute a radical break with the policies of past administrations,
including past Republican administrations. At the same time, tendencies that have become increasingly prevalent in U.S.
immigration policy over the past decade imparted a certain continuity to the first year of the Trump
administration. As in past years, a mutually reinforcing process of congressional inaction, executive
action, and state and local policy activism have reinforced the decentralization of U.S. immigration policy. In
this new policy climate, the executive and legislative branches increasingly assume the role of provocateurs, inciting state and local initiatives via
politically charged rhetoric, legislative proposals that languish, and contentious executive actions. However, neither congress nor the
president appears capable of sustaining a consistent course for immigration policy . The Trump administration is
finding, much as the Obama administration found, that its efforts to reassert leadership provoke sustained resistance
from emboldened state and local stakeholders, who counter with both legal and de facto challenges to
executive actions, even in domains where the federal government’s plenary authority remains intact . This
article reviews the genesis and evolution of the new immigration federalism. As detailed here, forces that reshaped the state–federal relationship
in immigration policy during the latter part of the Bill Clinton administration came to the fore by the final years of the George W. Bush
administration. Subsequent efforts by the Obama administration to unilaterally reassert control provoked further state and local activism and
deepened divisions across and, in the case of the Republican Party, within party lines. While Trump’s successful candidacy owed, in great
part, to his ability to catalyze anti-immigrant sentiment, his first
year in office suggests that even an ambitious president,
with legislative majorities in both houses of Congress, is constrained by the centrifugal force of
immigration federalism . The discussion here suggests a deepening of processes that have been noted in recent scholarship on U.S.
federalism and immigration policy. The centrifugal forces that have increasingly affected many areas of federal
policy (Rose and Bowling 2015) have become especially pronounced with regard to immigration . The Trump
administration is finding that its efforts to unilaterally remake U.S. immigration policy will necessitate a course of
containing highly energized and assertive state and local actors while also dragging an indecisive congress into action. In this policy
environment, state resistance continues a trend toward coordinated action by state attorneys general ,
occurring almost exclusively along partisan lines (Nolette 2017). Groups of like-minded states now routinely band

together , via federal lawsuits and amicus briefs , to stymie and sometimes block presidential initiatives.
Increasingly, city mayors and city councils are also offering resistance to presidential initiatives.
 S - sue feds
Suing the federal government works --- DACA and sanctuary cities prove
Reich 18 – PhD, Professor of Political Science @ The University of Kansas (Gary, “Hitting a Wall? The Trump Administration Meets
Immigration Federalism,” Publius: The Journal of Federalism, 48.3)

all of Trump’s major executive orders dealing with immigration were met with federal lawsuits
In fact,
backed by states and municipalities and resulted in either partial or full injunctions against them. Trump’s
executive order threatening to pull federal funds from jurisdictions with “sanctuary city” policies was
challenged in federal court by California Attorney General Xavier Becerra, as well at the county of Santa Clara and cities of San Francisco,
Chicago, Philadelphia, Seattle, and Portland. In an April 2017 ruling, in a case brought by Santa Clara and San Francisco, Judge William
Orrick of the U.S. District Court for the Northern District of California barred the Trump administration from withholding
federal funds from jurisdictions that the administration deemed sanctuary jurisdictions . Similar rulings were
issued in cases brought by Philadelphia and Chicago, with the ruling in the Chicago lawsuit upheld on appeal by a panel of the U.S. Court of
Appeals for the Seventh Circuit, in April 2018. Additionally, just as Obama’s DAPA order was challenged by Republican attorneys general,
fifteen Democratic attorneys general filed a lawsuit challenging Trump’s order ending DACA .5 This
lawsuit, one of several filed by state officials and other plaintiffs, alleged that the president’s action violated the equal
protection clause of the Constitution by unfairly targeting mostly Mexican-born immigrants (who were the focus
of derogatory campaign statements by Trump), while also unfairly depriving states of taxpaying residents. Judge Nicholas Garaufis in the U.S.
District Court for the Eastern District of New York sided with the state plaintiffs, in a February 2018 ruling, one of several federal court
decisions in early 2018 that have, to date, halted the scheduled termination of the DACA program .
 S – pardons
Pardons solve
Reich 18 – PhD, Professor of Political Science @ The University of Kansas (Gary, “Hitting a Wall? The Trump Administration Meets
Immigration Federalism,” Publius: The Journal of Federalism, 48.3)//BB

In the first four months of his presidency, Trump began a program of stepped up immigration raids by ICE. Between January and
April 2017, arrests by ICE increased 38 percent compared to same period the previous year. And those arrests cast a much wider net. Rather than
focusing solely on apprehending immigrants accused or convicted of felonies (as was the practice under the Obama administration), ICE
agents began arresting unauthorized immigrants convicted of minor crimes and even those who were not wanted for a
criminal offense. Arrests of immigrants with no previous criminal record increased by 156 percent in the first four months of 2017, compared to a
year earlier (Gomez 2017). Trump also moved in his first year to reverse Obama’s executive actions. In June 2017, Department of Homeland
Security head John Kelly signed an order that officially rescinded the DAPA program and in September 2017, Trump announced the termination
of the DACA program, effective in March 2018. The effort to reorient immigration policy extended to legal immigrant and refugee admissions.
One week into his presidency, Trump issued an executive order suspending for ninety days the entry of most immigrants from seven Muslim-
majority countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen). That same month, Trump slashed the limit for refugee admissions for
fiscal year 2018 to 45,000, down from 110,000 in the last year of the Obama presidency. This represented an historic low in refugee admissions
over the forty years of the refugee assistance program’s existence. In August 2017, Trump announced his support for the Reforming American
Immigration for a Strong Economy (RAISE) Act, sponsored by Senators Tom Cotton (R-AR) and David Perdue (R-GA), which would cut legal
immigration in half from existing levels, curtail family-based visas, and end the “Diversity Visa Lottery” program. Trump’s initial
actions forcefully broadcast his intention to redirect immigration policy. However, amidst the policy
cancellations, arrests, and threats, a dynamic of executive provocations and state and local counter-challenges emerged that
was reminiscent of the Obama years. The inclination of many Democratic-controlled states to challenge Trump’s authority became apparent
almost immediately, when Trump’s executive order banning travelers from seven Muslim-majority countries was challenged in federal court and
temporarily blocked by federal judges in Hawaii and Maryland. Washington, Minnesota, and Hawaii became plaintiffs in a federal lawsuit
requesting that the stay on the travel ban be affirmed. These states were supported, via amicus curiae briefs, by seventeen other states. In the face
of these mounting legal challenges, the Trump administration reissued a revised version of the travel ban in March 2017, but this second
executive order also generated lawsuits from pro-immigrant states and led to court rulings enjoining its implementation. A third iteration of the
travel ban, issued in September 2017, modified the list of affected countries and altered the rationale for the ban, basing it on a set of
requirements applied to all countries’ vetting procedures for immigrants.4 The modifications may not only have strengthened the administration’s
ability to withstand challenges in federal court (Turley 2017), but also demonstrated—much as with resistance to Obama’s refugee admission
policies—the determination of states to contest an area of immigration policy that is considered an exclusive prerogative of the federal
government. In fact, all of Trump’s major executive orders dealing with immigration were met with federal lawsuits backed by states and
municipalities and resulted in either partial or full injunctions against them. Trump’s executive order threatening to pull federal funds from
jurisdictions with “sanctuary city” policies was challenged in federal court by California Attorney General Xavier Becerra, as well at the county
of Santa Clara and cities of San Francisco, Chicago, Philadelphia, Seattle, and Portland. In an April 2017 ruling, in a case brought by Santa Clara
and San Francisco, Judge William Orrick of the U.S. District Court for the Northern District of California barred the Trump administration from
withholding federal funds from jurisdictions that the administration deemed sanctuary jurisdictions. Similar rulings were issued in cases brought
by Philadelphia and Chicago, with the ruling in the Chicago lawsuit upheld on appeal by a panel of the U.S. Court of Appeals for the Seventh
Circuit, in April 2018. Additionally, just as Obama’s DAPA order was challenged by Republican attorneys general, fifteen Democratic attorneys
general filed a lawsuit challenging Trump’s order ending DACA.5 This lawsuit, one of several filed by state officials and other plaintiffs, alleged
that the president’s action violated the equal protection clause of the Constitution by unfairly targeting mostly Mexican-born immigrants (who
were the focus of derogatory campaign statements by Trump), while also unfairly depriving states of taxpaying residents. Judge Nicholas
Garaufis in the U.S. District Court for the Eastern District of New York sided with the state plaintiffs, in a February 2018 ruling, one of several
federal court decisions in early 2018 that have, to date, halted the scheduled termination of the DACA program. Moreover, the governors of
California, New York, Colorado, and Virginia issued pardons to some immigrants convicted of prior
criminal convictions as a means of heading off their deportations , with similar requests for
gubernatorial pardons pending in other states (Lee 2017). While the success of this tactic in influencing deportation decisions
is still not clear, it illustrated the creativity of some governors in finding new ways to undermine the
President’s use of his plenary authority .
 S – follow-on
Federal follow-on
Ramon and Brown 18 - Policy Analyst @ Bipartisan Policy Center (Cristobal and Theresa Cardinal, “An Immigration Patchwork in the
States: How Partisanship, Regionalism, and Shifting Priorities Impact State Immigration Laws,” Bipartisan Policy,
https://bipartisanpolicy.org/wp-content/uploads/2019/03/An-Immigration-Patchwork-in-the-States.pdf)//BB

The existence of policy convergence between parties at the state level also points to directions for national
immigration reform. Rather than using the policy positions of both national parties to guide these reforms, national
lawmakers could use the points of agreement between both parties at the state-level as the foundation
for adopting broader changes. In the case of workforce development, for instance, national lawmakers can learn from
state legislators who have adjusted licensing requirements to meet demand for workers from affected industries. Regionalism
can also play a role in developing this consensus, with conservative Democrats in the South and moderate Republicans in the Mountain States
showing potential avenues for cooperation in areas such as immigration enforcement and licenses for noncitizens. Although the national debate
state-level consensus highlights
over immigration policy will continue to exert a significant impact on immigration reform, this
ways that lawmakers can find common ground to develop federal immigration policies that meet the needs of
states and localities across the United States.
 S – immigration detention
85 percent of immigrant detention centers are non-federal
Hudak 19 - deputy director of the Center for Effective Public Management and a senior fellow in Governance Studies @ Brookings (John
and Christine Stenglein, “How states can improve America’s immigration system,” Brookings, https://www.brookings.edu/research/how-states-
can-improve-americas-immigration-system/)

These challenges in our immigration system are not simply restricted to overcrowded holding facilities run by Customs and Border
Protection (CBP). Similar accounts have come from facilities holding detainees who have been transferred to ICE
custody and to facilities holding unaccompanied minors under the supervision of ORR. These entities—most of which are state-
licensed and privately run , or are administered by county or municipal governments —have fallen short of
federal standards; have failed to meet standards set under state policies; and have documented incidents such as violent assaults, sexual assaults,
and suicides. These conditions affect a range of individuals housed in the nation’s immigration system, a group that includes extraordinarily
vulnerable populations such as victims of human trafficking, individuals seeking asylum, and unaccompanied minors.
THE ROLE OF THE STATES IN IMMIGRATION POLICY
The idea that states could be in the driver’s seat when it comes to reforming our immigration system may
seem counterintuitive. Immigration enforcement is a federal government power, and while some states and municipalities
have opted not to assist federal authorities in immigration enforcement—most commonly referred to as sanctuary states or cities—the primary
However , like many areas of policy, the issue
power rests with the central government to set and administer immigration laws.
has grown larger than the capacity of the federal government to address on its own . Therefore, the relevant
federal agencies have used contracting to be able to administer the system .
Through a system of contracting, the federal government, namely ICE or the Department of Health and Human Services (HHS),
pay other entities to house detainees until their cases are processed and adjudicated. Often those contracts are signed with private
companies or with state, county, or municipal governments—a practice known as intergovernmental service agreements. Under these contracts,
private or local government facilities will be responsible for housing and maintaining detainees and the federal government pays a per-person per
diem to cover costs and compensate those entities. These can become quite lucrative contracts for local governments and for private companies,
often creating incentive structures not simply to take such contracts but to maximize revenue. Those incentives, combined with a public and
private prison system in the United States that itself faces calls for major reform, has created living conditions that do not live up to acceptable
standards.
The result has been a decadeslong problem in the United States that has intensified over the past few years. Immigration agencies have
not been given the resources to meet their obligations , internal oversight has been lacking, transparency has been limited,
accountability has been scarce, and even proposed solutions such as contracting have not solved these problems, but simply shifted them to
another setting. In the end, humans suffer from these governmental shortcomings, and the current immigration crisis has thrust that challenge into
the public eye—even if complete information has not been fully available to the public.
How, then, can states play a significant role? The solution rests in the contracting process that ICE
and HHS rely on . The chart below shows the breakdown in the number of adult immigration detainees held under the authority of ICE
(those transferred from CBP) and the type of facility in which they are held. As the chart shows, the vast majority of
individuals— 85% —are held in facilities that are not federal .

Immigration facilities by percent of detainees

Both private facilities as well as county and municipal authorities are licensed and/or regulated by state
governments . Those facilities are thus subject not only to the regulatory authority of the state, but state
law enforcement, public health standards, etc. Other agencies also have jurisdiction to investigate and monitor these facilities.
When an individual housed in one of these facilities—be that person a local-level offender or an ICE detainee—dies, is assaulted, is the victim of
rape or other type of abuse, the state government has jurisdiction to investigate.
And although there have been high-profile incidents in which members of Congress or their staffers have been blocked from entering federal
facilities, including most recently more than a dozen CBP and ICE facilities in Texas, those barriers do not necessarily exist for state-regulated
entities. Yes, state and local officials could opt to bar elected officials from entering facilities, but federal officials’ ability to interfere is limited.
And while it would be preferable to allow investigators, overseers, and media access to all types of facilities, states can and must take
a more active role in the absence of that.

A critical mass of state measures causes federal follow-on

Adams 19 - intern with the Immigration Policy team at the Center for American Progress (Lora, “State and Local Governments Opt Out of
Immigrant Detention,” Center for American Progress, https://www.americanprogress.org/issues/immigration/news/2019/07/25/472535/state-
local-governments-opt-immigrant-detention/)//BB

The number of immigrants detained in the United States has increased nearly every year for 25 years, ballooning from roughly 6,700 people in
1994 to nearly 53,000 this July. Though detention has expanded steadily throughout the decades, the current administration boasts the sharpest
increases. U.S. Immigration and Customs Enforcement (ICE), the federal agency tasked with overseeing and implementing policies related to
immigration detention, contractsout a large portion of its detention capacity to state and local governments ; in
fact, the
majority of ICE detention facilities are contracted through intergovernmental service agreements (IGSAs)
with localities. And because local governments can then subcontract with private prison companies to operate these detention facilities and,
sometimes, their own local jails that also hold civil immigration detainees, this process allows ICE to circumvent the usual and more rigorous
federal bidding and contracting procedures required to contract with private companies directly. But lately, some state and local
governments are resisting this expansion. Localities in states ranging from Virginia to California are cutting ties with ICE
detention facilities, while state legislatures are passing bills to push back against immigrant detention statewide .
Resistance at the state and local levels has gained momentum as poor detention conditions become more publicized, with communities increasing
the pressure on their local and state representatives to end ICE contracts. Reports of inadequate medical care, sexual abuse, and deaths in
detention centers across the country have sparked national and community outrage. State and local governments are reexamining their role in
immigrant detention, and a growing number are opting to end it. In light of this shift, this column provides examples of efforts at the city, state,
and county levels to resist immigrant detention in their communities, followed by a brief summary of lessons learned from these actions that
illustrate the importance of continuing such efforts in the future. Local actions Localities in states across the country are backing out of contracts
with ICE along with the subsequent subcontracts with privately run detention centers, extracting themselves from the detention of immigrants in
their jurisdictions. Adelanto, California Over the past year, a number of cities and counties in California have ended their detention agreements
following the passage of a statewide law solidifying a ban on local governments and law enforcement from entering into new or expanding
existing contracts for ICE detention beds. It also banned any “city, county, city and county, or a public agency” from issuing a permit for any new
construction of such a facility. This set the stage for local governments to remove themselves from the contracts altogether when they were up for
renewal. This spring, the city of Adelanto terminated its IGSA with ICE, along with its subcontract with the facility’s managing private prison
company, extracting itself from the arrangement that helped create the largest civil immigration detention center in California. The previous fall,
inspectors from the U.S. Department of Homeland Security Office of Inspector General reported inadequate medical care and conditions that
violated ICE’s own detention standards in the Adelanto facility, including nooses found in detainee cells and a history of suicide attempts. Even
so, Adelanto’s decision to terminate its contract has not resulted in the closure of the facility. Rather, it forced ICE to contract directly with the
prison company that runs the facility to keep it operational for the next year while the agency examines its options under the new state law. ICE
has so far avoided transparency concerning any changes to the facility’s operations and continues to be unresponsive to community requests for
engagement. It is unclear what will happen once the year is up and ICE’s contract ends, but advocates continue to push for increased oversight
and accountability as rumors of expansion abound and the city considers its next move. Its options range from refusing to issue land-use permits
to prevent the rumored expansions, to rescinding the withdrawal from the contract to maintain a seat at the table. Williamson County, Texas Early
this year, Williamson County, Texas, also officially ended its contract with a local detention center as well as its IGSA agreement with ICE, in
part due to local pressure against the detention of more than 500 immigrant women in the facility, many of whom had been separated from their
children during the implementation of federal family separation policies. Advocates amplified the women’s reports of sexual abuse and their
hunger strike to protest conditions in the center, pressuring county commissioners to act. Despite Williamson County’s efforts, the facility has
remained open through yet another temporary contract between ICE and the operating prison company. Working through an IGSA had previously
allowed ICE to bypass the federal bidding process. But now that ICE is contracting directly with the private prison company—rather than the
county—local advocates are questioning why the agency is still being allowed to skip a process that should be standard for federal contracts; they
argue that entering into this direct contract should trigger tougher government rules regarding federal contracts. In the meantime, local advocates
continue to work with the women detained in the facility and push for accountability for the conditions inside. While Texas has the highest
number of immigrant detention centers of any state in the country with 184 facilities—most of which are run through local government IGSAs—
Williamson County is not the only locale to push back. Houston, home to one of the largest immigration populations in the country, is applying
pressure on a new facility for migrant children in the area. In a public statement speaking out against the facility, Houston Mayor Sylvester
Turner (D) wrote, “There comes a time when we must draw the line, and for me that line is with our children.” State-level actions The state of
California has been at odds with the administration’s immigration policies throughout Donald Trump’s presidency, from outlawing information-
sharing agreements between local law enforcement and ICE to the ban on new or expanding private detention contracts. However, California
is just one of several states to have acted against ICE detention within its borders , explicitly rejecting the
Trump administration’s detention expansion. Michigan In February of this year, Gov. Gretchen Whitmer of Michigan (D)
blocked the sale of a former state prison that would have become a site for a new privately operated immigration
detention center set to detain 500 to 600 people. The private prison corporation set to contract out the facility could not ensure that the facility
would not hold adults separated from their children, going against the governor’s added restrictions to the development deal. In response to
criticism that Gov. Whitmer’s actions had cost the state jobs, a spokesperson for the governor stated that “building more detention facilities won’t
solve our immigration crisis, and … separating families doesn’t reflect our Michigan values.” Illinois As Illinois braced for the threat of
increased ICE raids, it became
the first state to ban private immigrant detention facilities altogether , passing a law
expanding its ban on private prisons to include civil detention centers, including those holding immigrants. The
ban was one of several
statewide initiatives to protect immigrants in Illinois and create a “firewall against Donald Trump’s attacks on
our immigrant communities,” according to Illinois Gov. JB Pritzker (D). Conclusion: Lessons learned State and local
cooperation has been a key component of ICE’s rapid detention expansion. Assisting the administration’s hard-line
detention strategy is becoming synonymous with complicity in its subsequent abuses, and a rising number of state and local governments are
pushing back and cutting ties in the face of increasingly clear human rights violations and added pressure from constituents. Moving forward,
these examples and others serve to build the record and provide valuable lessons for further advocacy on the state
and local levels. Of course, not all such efforts are without complications. While some terminated contracts result in facility closures,
ending or refusing contracts is not always the end of the story—nor does it necessarily mark the end of a detention center. In cases such as
Adelanto and Williamson County, ICE has contracted directly with private companies to keep the detention facilities open, seemingly without
going through the proper channels. Alternatively, ICE may choose to move its detention site or those detained there to a jurisdiction with less
pushback at both the state and local level s is critical . Successful local campaigns to
resistance. Nonetheless,
break ties with detention, often involving the voices of the detained people themselves, and local outcry add to the national narrative of
the harms of detention and help lift local voices into the national debate. As the historically high numbers of immigrants in detention continue to
rise, these actions are
essential in increasing the pressure on ICE and the Trump administration to ramp
down immigration detention as well as on Congress to use the power of the purse to increase accountability and
impose sensible limits on detention spending.

Investigations and information solve the other 15 percent

Hudak 19 - deputy director of the Center for Effective Public Management and a senior fellow in Governance Studies @ Brookings (John
and Christine Stenglein, “How states can improve America’s immigration system,” Brookings, https://www.brookings.edu/research/how-states-
can-improve-americas-immigration-system/)

HOW CAN STATES IMPROVE AMERICAN IMMIGRATION POLICY?

Immediate investigations
As explained in the previous section, states have a role in immigration
policy through contracting . This opens the
door for them to play a major role in improving immigration policy. In states where ICE detainees or unaccompanied
minors detained by HHS are held in private or local facilities, state regulatory officials, social workers, lawyers, public health officials, and others
can enter the facilities to enact a large-scale evaluation of the conditions in which people are held. This will allow a better understanding of their
experience during other stages of custody, documenting both the positive and negative aspects of their time since apprehension. In many cases,
states are working to do this, but a broader, coordinated effort is necessary . However, simply expecting state agencies to
take on the additional work is insufficient. Leadership from governors, legislatures, and agency heads is necessary to
demonstrate both a public desire for straightforward evaluations of the situation and to place additional resources behind the effort. Such action
will motivate the types of investigations and oversight necessary to understand better the experience of a CBP detainee
and his or her track through the immigration system, and it will also highlight the plight of others being held in the same facilities.
And while federal immigration officials may not want reporters, legislators, and other outside support staff entering their facilities, those same
officials cannot stop detainees from discussing the details of their experience once they have been transferred to facilities that are non-federal.
The information regarding those experiences is critical both for the treatment of detainees for physical or
mental health symptoms and for oversight of the system more generally .

Illinois proves, and CA failed because it was a watered-down bill

Murguia 19 - associate editor on the investigations desk at Pacific Standard, where she oversees research and fact-checking. Previously,
she was a senior editorial fellow at Mother Jones in San Francisco (Sophie, “ILLINOIS IS CRACKING DOWN ON PRIVATE IMMIGRATION
DETENTION,” PS Mag, https://psmag.com/news/illinois-is-cracking-down-on-private-immigration-detention)

Illinois Governor J.B. Pritzker signed a bill on Friday that prevents local governments from making agreements with
private immigration detention centers, a move that will give his state the nation's strictest limits on private
detention facilities. In passing the law, Illinois joins a growing number of state and local governments that have restricted their use of
immigration detention in recent years. In 2017, California approved a law that prohibits local governments from
expanding their existing immigration detention contracts or entering into new ones. The Illinois law is similar, but it
goes even further by preventing local governments from engaging in any kind of financial transaction
with a private detention center. Although the law doesn't amount to a full ban on private immigration detention, as the governor's
office has claimed, it
will still make it much harder for Immigration and Customs Enforcement to open private
detention centers in the state. That's because, most of the time, opening a private detention center requires local governments to participate
in some way—whether by contracting with a private prison company directly or by providing financial incentives for the facility to open. While
Illinois doesn't currently have any private detention centers, the law is intended to halt the construction of a detention facility in the village of
Dwight, about 80 miles from Chicago. Recently, the village voted to annex a nearby parcel of land so that Immigration Centers of America, a
detention company that operates one other facility in Virginia, could build a private detention center there. The new law will prohibit that kind of
annexation agreement, according to Mark Fleming, national litigation coordinator at the National Immigrant Justice Center in Chicago. The law
has been largely heralded as a win for immigration advocacy groups, especially amid reports that limits on ICE detention space have made it
more difficult for the agency to carry out the mass raids that President Donald Trump has promised. At the same time, as ICE continues detaining
record numbers of people, there are some drawbacks to limiting immigration detention in blue states where pro bono lawyers are more abundant
and circuit courts are friendlier to immigrants. As I reported in May, some California cities and counties have struggled with unexpected
consequences after ending their detention contracts with ICE: Instead of freeing detainees when these contracts end, ICE has taken steps that
sometimes make things even worse for detained immigrants. In some cases, it has responded to closures by transferring people to detention
centers hundreds of miles away, where their lawyers fear they won't have access to the same resources they have in California. In other cases,
ICE has taken steps to keep the facilities open by contracting directly with private prison companies—a move that shields the detention centers
from local government oversight and allows ICE to get around the 2017 law that restricts their expansion. Fleming says it's possible that
ICE will try to get around Illinois' law just as it has tried to get around California's, by moving ahead with plans for a private
detention center that don’t involve participation from a local government. However, this kind of maneuver will likely prove more
difficult in Illinois—both because Illinois' new law is stricter and because the state doesn't have existing facilities that ICE
could easily use. Ultimately, despite those potential drawbacks, Fleming argues that the law is an important step toward reducing
immigration detention. "At the end of the day, as immigrant advocates we think it's wholly inappropriate to be detaining people for civil
purposes when they don't pose a danger to the community," he says. "If we're heading towards a more human immigration system, it has to start
somewhere."

States solve
Hudak 19 - deputy director of the Center for Effective Public Management and a senior fellow in Governance Studies @ Brookings (John
and Christine Stenglein, “How states can improve America’s immigration system,” Brookings, https://www.brookings.edu/research/how-states-
can-improve-americas-immigration-system/)

All that said, something can be done. Because

state governments play such a pivotal role overseeing and licensing
the facilities that house the majority of ICE and HHS detainees, they , too, can play a critical role in bringing
sunlight to the immigration system—both by regulating state licensed facilities and giving voice to those housed
within their walls.
 S - immigration detention – S advocate
Solvency advocate for multi-state coordination
Hudak 19 - deputy director of the Center for Effective Public Management and a senior fellow in Governance Studies @ Brookings (John
and Christine Stenglein, “How states can improve America’s immigration system,” Brookings, https://www.brookings.edu/research/how-states-
can-improve-americas-immigration-system/)

Form an interstate working group

Arrangements between ORR and its contractors over the last two years have been opaque. The flow of unaccompanied children into its custody
has created a growing industry of contractors to house and transport migrant children. Sometimes these facilities only come to light because a
neighbor sees children being led into and leaving a local office building. It’s clear that not all states have been able to keep up
with monitoring the changing immigration landscape as the flow across the border has changed to include more children and
families, and this is a key area where they can learn from each other . By coordinating among states via the
National Governor’s Association, the National Association of Attorneys General, or other existing organizations that encourage the flow
of information and expertise among states as peers, state officials can shift away from treating immigrant detention as
only as a problem in their backyard and begin to shift the norms of the system as a whole . By sharing
inspection and audit information, they can more effectively target oversight of both local companies and those
that cross state lines. Institutions that seek to coordinate interstate information can also facilitate the flow of
information to interested NGOs and media, as we recommend above happening via a czar at the intrastate level.
 AT plenary powers
Even if factually accurate, states are can de facto veto
Reich 18 – PhD, Professor of Political Science @ The University of Kansas (Gary, “Hitting a Wall? The Trump Administration Meets
Immigration Federalism,” Publius: The Journal of Federalism, 48.3)//BB

In spite of the federal government’s plenary authority over immigrant and refugee admissions,
deportations, and citizenship laws, the encroachment of state and local actors into federal immigration
policy showed no signs of abating in 2017. Through their varied policy choices, states and localities now exercise
enormous influence over the ability of immigrants—both authorized and unauthorized—to work, study,
receive health care, and live openly without fear of arrest and deportation . In addition, state and local actors
have become increasingly adept at using their own legislative powers, executive authority, and court
challenges to counter presidential authority. Meanwhile, the U.S. Congress is largely sidelined and shows
no signs of providing legislative direction. Thus, while the federal government’s plenary powers give it
the authority to both initiate policy and override many state and local initiatives, state and local governments are
increasingly becoming de facto veto players over national policy.

The status quo, in other areas, proves

Kim 14 (Seung Min, “States take on immigration,” Politico, https://www.politico.com/story/2014/05/immigration-reform-states-106868)
Fed up with an immigration overhaul stalling in Congress, state and local officials are taking the issue into their
own hands.
Liberal cities and counties are rebelling against federal orders that call on them to detain immigrants for
deportations. Swing-state lawmakers are approving in-state tuition for young undocumented immigrants. Democratic governors and mayors
are brainstorming ways to allow immigrants — those here legally and those who are not — to work.
Until now, conservatives were fueling much of the immigration action at the state and local level. Arizona, for instance, famously shot to national
attention in 2010 with a wide-ranging law that was then heralded as the toughest anti-illegal immigration statute in the nation.
But the more recent bursts of immigration activity nationwide are aimed at making the country more immigrant-
friendly. And they give Democrats in Washington another opportunity to slam Republicans for failing to move immigration legislation.
“It should tell you just how far out of sync the Republican majority is,” Rep. Luis Gutierrez (D-Ill.) said of the recent flurry of pro-immigrant
actions outside Washington. “It’s like, the country is moving.”
The most widespread trend is the rising number of local law enforcement agencies that have decided to
buck federal immigration authorities on deportations — a movement that could have national implications.
In recent weeks, officials in Philadelphia and Baltimore and a slew of counties across Oregon, Colorado and Washington have all
said they will no longer hold immigrants in jail who are suspected of being here illegally but would
otherwise be released from behind bars.
The trend is a significant rebuke of Secure Communities, a program run by Immigration and Customs Enforcement
that requires local law enforcement to hand over fingerprints to federal immigration officials of those who
are booked into jails. If the fingerprint flags a potential undocumented immigrant, local jails are asked to detain him or her — even if the
person is otherwise eligible to be released. Secure Communities began in 2008 under former President George W. Bush but has expanded under
the Obama administration.

States enact immigration laws all the time

Ramon and Brown 18 - Policy Analyst @ Bipartisan Policy Center (Cristobal and Theresa Cardinal, “An Immigration Patchwork in the
States: How Partisanship, Regionalism, and Shifting Priorities Impact State Immigration Laws,” Bipartisan Policy,
https://bipartisanpolicy.org/wp-content/uploads/2019/03/An-Immigration-Patchwork-in-the-States.pdf)

MORE STATES ARE ENACTING IMMIGRATION -RELATED LAWS

BPC’s review of the NCSL database found that an
increasing number of states have enacted immigration laws
covering a broad spectrum of policy areas since 2005. As Figure 1 shows, the number of states enacting these laws
dramatically increased between 2005 and 2009 before plateauing at the start of the last decade. However, the last five years have seen
another increase, with 2015 and 2017 showing the largest number of states enacting immigration laws recorded in the NCSL database and 49 out
of 50 states enacting some law related to immigration during that time frame. A review of the NCSL database shows that California, Utah,
and Virginia are the three states that enacted the most immigration laws between 2005 and 2017. As Figure 2 shows, these states
enacted 414 laws, or 19.8 percent of the total of 2,100 state-level laws enacted nationwide in this period .
The top 10 states enacted 914 laws during this period, accounting for 43.8 percent of all immigration laws enacted by states through 2017.
MANDATORY MINIMUMS
 1nc

The 50 states and all relevant territories should abolish mandatory minimum laws.

Momentum to reform state mandatory minimums is increasing now- it worked in Michigan

Newburn 16 - State Policy Director and a member and writer for the Families Against Mandatory Minimums.
(Gregory, “Mandatory Minimum Sentencing Reform Saves States Money and Reduces Crime Rates.” American
Legislative Exchange Council. March 2016. DOA: July 2, 2020. https://www.alec.org/app/uploads/2016/03/2016-
March-ALEC-CJR-State-Factor-Mandatory-Minimum-Sentencing-Reform-Saves-States-Money-and-Reduces-
Crime-Rates.pdf)//MGalian
EXECUTIVE SUMMARY. The United States has been experiencing increasingly high levels of incarceration, particularly over the last three decades.
Several states have realized such levels are not sustainable and have been examining potential solutions to lower
incarceration rates. One proposed solution is to allow greater flexibility for judges when sentencing nonviolent, low- risk offenders.

By allowing judges to depart from mandatory minimums for nonviolent, low-risk offenders, incarceration rates drop
without compromising public safety . The American Legislative Exchange Council (ALEC) model Justice Safety Valve Act allows for
discretion during sentencing of certain individuals. Such a sentencing structure would help to reduce the cost of incarceration without compromising public safety.
the number of people incarcerated in state prisons
THE PROBLEM After remaining steady for most of the twentieth century,

has increased considerably over the last three decades. By the end of 2014, the state prison population totaled 1,350,958 inmates.2 Many
states sought to accommodate the growth in the pris- on population by building new prisons; however, some simply could not keep pace. In 2014, 18 states had
exceeded the maximum measure of their prison facilities’ capacity .3 Among them was Illinois, whose year-end 2014 prison population of 48,300 inmates
was 150 percent of its rated capacity and 171 percent of the design capacity.4 Other states including Ohio (132 per- cent), Massachusetts (130 percent) and Nebraska
(128 percent) also had more prisoners “than the maximum number of beds for which their facilities were designed, rated, or intended.”5 Maintenance costs for
these overcrowded prisons coupled with growing inmate populations led to skyrocketing state corrections budgets . According to
the National Association of State Budget Officers (NASBO), state spending for corrections totaled $53.3 billion in fiscal year (FY) 2013, which

represented 6.9 percent of state general revenue spending .6 NASBO estimated that state corrections spending would continue
to rise.7 State dollars accounted for 97.7 percent of total state corrections spending.8 This additional spending has still proven insufficient. Despite the recent swelling
of states’ corrections budgets, the rate of growth of state corrections spending related to convicted populations has slowed in the last couple of years. This is largely
because “states have begun controlling costs through reducing recidivism rates , implementing changes to parole and proba- tion systems, enhancing
community supervision of convicted persons and drug treatment programs, and enacting sentenc- ing reforms.”9 Nevertheless, many states continue spending too
much on corrections, yet still face overcrowded, understaffed facilities designed to house convicted persons, with stubbornly high recidivism
rates. THE SOLUTION: SENTENCING REFORM After crime rates rose steadily throughout the 1970’s, many states (and the federal government) responded
by passing harsh mandatory minimum sentencing laws. These laws require automatic, fixed-length prison sentences – not only for violent crimes, but for
nonviolent and drug crimes as well. These new sentencing laws sent more people to prison, imposed longer prison sentences, and are generally considered a main
driver of exploding state prison populations. If mandatory sentences for nonviolent and drug offenders were necessary for public safety, their cost
would be justified. How- ever, as corrections spending has climbed, most experts have come to believe incarcerating huge numbers of low-level, nonvi-
olent and drug offenders post-conviction is an inefficient and in- effective method of controlling crime. While public safety ben- efits of incapacitating dangerous
criminals justifies the costs, according to the Pew Center on the States, “most criminologists now consider the increased use of prison for nonviolent offend- ers a
questionable public expenditure, producing little addition- al crime control benefit for each dollar spent.”10 Even the most ardent and influential supporters of
incarceration as a means to control crime have expressed skepticism toward mandatory minimum drug laws . Dr. John
J. DiIulio Jr., a crim- inologist, Harvard Ph.D. and former Professor of Politics and Public Policy at Princeton, is among the leading advocates of incarceration in the
United States. DiIulio rejects what he calls “the soft-in-the-head anti-incarceration left,” and has written, “No one – at least no one in elite policy-wonk circles – is a
big- ger fan of incarcerating known, adjudicated adult and juvenile criminals than me.”11 Yet Dr. DiIulio opposes mandatory mini- mum sentences for drug
offenders.12 In a New York Times op-ed DiIulio wrote: Prison definitely pays, but there’s one class of criminal that is an arguable exception: low-level, first-time
drug of- fenders . . . It makes no sense to lock away even one drug offender whose case could be adjudicated in special drug courts and handled less
expensively through intensively su- pervised probation featuring no-nonsense drug treatment and community service.13 DiIulio continued that theme in a National
Review article: There is a conservative crime-control case to be made for repealing mandatory minimum drug laws now. That’s a conservative crime-control case, as
in a case for promoting public safety, respecting community mores, and reinstating the traditional sentencing prerogatives of criminal-court judges. It is a conservative
case, and I . . . one of the few ac- ademic analysts with a kind word for imprisonment, have come to embrace it.14 Independent research organizations have come to
similar con- clusions. The RAND Corporation looked at the cost effectiveness of mandatory minimum drug laws and asserted: “[I]f reducing
consumption or violence is the goal, more can be achieved by spending additional money arresting, prosecuting, and sentenc- ing dealers to
standard prison terms than by spending it on sen- tencing (fewer) dealers to longer, mandatory terms.”15 Other influential proponents of the “lock ‘em up and
throw away the key” model of crime control also believe the strategy has gone too far and now recommend reducing the prison pop- ulation to more efficiently fight
crime. For instance: University of Chicago economist and author Steven D. Lev- itt wrote several influential papers in which he concluded that pro-
prison policies were a major factor in reducing crime during the 1990s. He later found, however, that as the crime rate continued to drop and the
prison popula- tion continued to grow, the return on public safety dimin- ished... “In the mid-1990s I concluded that the social bene- fits approximately
equaled the costs of incarceration.” And today? Dr. Levitt says, “I think we should be shrinking the prison population by at least one-third.”16 In recognition of the
rising costs and shrinking benefits of harsh sentencing laws, many states have begun to reconsid- er their reliance on mandatory minimums for nonviolent and drug
offenders. For example, the Pennsylvania Sentencing Commission found “neither length of sentence nor the impo- sition of a mandatory minimum sentence alone was
related to recidivism.”17 A legislative analysis in Washington state found that while incarcerating violent offenders provides a net public benefit, imprisonment of
property and drug offenders leads to negative returns.18 Many states have gone further than simply studying the problem and have adopted evidence-
based, cost-effective sentencing reforms. For instance, prosecutors in Michigan suggest- ed to legislators that the state was “warehousing too many
Michigan repealed most
low-level nonviolent offenders with a minimal role in the drug trade for too long in costly prison beds.”19 As a result,
of its drug-related mandatory minimums. Prison admittances fell and Michigan saved billions in tax dollars. More importantly,
the crime rate fell 27 percent in the decade after the repeal. eficial. But just as one would first turn off a spigot to stop an overflowing bathtub, states must first stop
filling their prisons with low-level offenders. They can best achieve this objective by reforming their mandatory minimum laws. Toward that end, American
Legislative Exchange Council (ALEC) members developed the Justice Safety Valve Act, which provides sentencing courts with discretion to depart from mandatory
sentences for nonviolent offenders who meet specified criteria.
 S- Mandatory Minimums
State legislation and safety valve policies are empirically successful in combatting
mandatory minimum sentences
Rhodan 14 – a D.C.-based journalist and writer. She was previously a staff writer at TIME Magazine and has
contributed to ESSENCE and FORTUNE magazines. As a political reporter, she has covered the White House, the
Supreme Court, Congress, and immigration policy, the intelligence community, criminal justice, and race-relations.
In 2014, Maya wrote an award-winning report on African American women’s reproductive rights for Essence’s May
2014 issue. In 2015, she was a part of a two-woman team dispatched to Charleston, S.C. to report on the aftermath
of the Emanuel AME Church shooting. The team won a Deadline Club award for their gripping report. In 2016,
Maya conducted an exclusive, on-camera interview with U.S. President Barack Obama and prima ballerina Misty
Copeland. A 2012 graduate of Howard University's School of Communications, she has also written and reported
for The Center for Public Integrity, Ebony.com, Washington City Paper, Washingtonian Magazine, and the NNPA
newswire and its member newspapers. (Maya, “States Lead The Way on Sentencing Reform.” Time. February 14,
2014. DOA: July 2, 2020. https://swampland.time.com/2014/02/14/mandatory-minimum-sentences-states-
reform/)//MGalian
Generally, a “safety valve” isan exception to a mandatory minimum sentencing law authorizing the court to give an
offender less time in prison than the required minimum.22 Some safety valves give sentencing judges broad discretion to waive
mandatory minimums , while others restrict eligibility to offenders who meet certain criteria. For instance, Florida’s safety valve for certain hit-and-
run offenses allows sentencing judges to depart from a four-year mandatory minimum if they find that “imposing a mandatory

minimum term of imprisonment would constitute or result in an injustice .”23 On the other end of the spectrum,
the federal drug safety valve requires defendants to meet a strict five-part test.24 The ALEC Justice Safety Valve Act is a narrowly tailored
reform that applies only to nonviolent, non-sex crime offenders. Addi- tionally, the safety valve does not apply to any offender 1) who has a previous conviction for
the same offense within the last ten years; 2) uses a firearm in a manner that causes physical in-jury during the commission of the offense; or 3) was the leader,
manager, or supervisor of others in a continuing criminal enter- prise. For all other offenders, the model policy allows sentenc- ing courts to depart from mandatory
minimums in any instance where the minimum sentence would result in substantial injus- tice, and the minimum sentence is not necessary for the protec- tion of the
public. The model policy provides for transparency and accountability in sentencing by requiring judges to report any departures from mandatory minimums. State
agencies would then be required to make those reports available online. WHY IT WORKS The Justice Safety Valve Act is a specific solution designed to
help with the specific problem of mandatory minimum sentences being imposed in cases where they are not necessary to protect public safety . The
model policy does not repeal any mandatory minimum sentences, and it does not require judg- es to impose non-prison sanctions when prison is appropriate. Rather,
the policy allows judges to impose appropriate sentences in certain cases where mandatory minimums clearly should not apply. The Justice
Safety Valve Act strikes a balance between the re- peal of mandatory minimum sentencing laws and the inflexible application of mandatory
minimums irrespective of mitigating circumstances. This “third way” has several immediate benefits. First, the safety valve provides sentencing courts the
authority to make common sense distinctions between dangerous, re- peat offenders and low-level, nonviolent offenders. As a result, the model policy would reserve
scarce prison space for violent offenders, habitual criminals, and offenders who pose a threat to public safety. This reduces overcrowding, eases problems related to
prison facility understaffing, and allows states to re- verse the growth in corrections spending. Second, the safety valve allows courts to avoid unreasonable
outcomes the imposition of a mandatory minimum would re- quire. For example, a safety valve would allow a sentencing court to avoid giving a first-time
drug courier and a major king- pin the same sentence, an outcome often required where a safety valve is unavailable. Third, the safety valve allows
states to more efficiently allocate scarce resources . Every dollar spent on unnecessary incarceration cannot be spent
putting more police on the street or more prosecutors into courtrooms. Money wasted on inefficient in- carceration is unavailable for other state needs such
as more teachers, better infrastructure, or tax relief. CASE STUDIES IN SENTENCING REFORM. In 2010 South Carolina’s prison population was projected
to grow more than 10 percent by 2014, after having tripled during the previous 25 years.25 Corrections spending had al- ready increased 500 percent since
1983, and the Pew Center on the States estimated that new growth in the prison popula- tion would cost more than half a billion dollars over five years. Meanwhile,
about half of South Carolina’s prisoners were being held for nonviolent offenses.26 In response to this crisis, South Carolina passed the “Omnibus Crime
the legislation removed the 10- year
Reduction and Sentencing Reform Act of 2010.” Among other “smart justice” reforms,
mandatory minimum sentence for school zone violations , allowed the possibility of probation for certain second and
third drug possession convictions, and eliminated mandatory mini- mum sentences for first convictions of simple drug
possession . Four years later South Carolina has closed two minimum-security prisons, 27 saved
millions of dollars,28 and the state’s crime rate has fallen .29 Georgia’s recent experience with sentencing reform mirrors
South Carolina’s. For years, Georgia passed “tough on crime” legislation, including a two-strike law that put thousands ofGeorgians in prison for life.30 According
to one report, in 2010 “One in 13 Georgian adults was under correctional control of some sort, and the state’s inmate population had more than doubled since 1990 . . .
Corrections were the state’s second-high- est state expenditure, after the Department of Education.”31 By 2012 Georgia was spending more than $1 billion on
corrections. Meanwhile, drug and property offenders represented nearly 60 percent of prison admissions.32 Georgia Governor Nathan Deal created a special
council to develop recommendations for reforming his state’s criminal justice system. One of the recommendations endorsed by the council was
a safety valve modeled on the federal drug safety valve. In 2013, the Georgia legislature adopted the safety valve and it became law. Georgia’s reforms
are working. Sentencing reform has already saved Georgia $20 million ,33 and according to a 2014 report, “Georgia is increasingly focusing expensive
prison space on dangerous offenders while using more cost-effective, communi- ty-based sanctions for less serious lawbreakers.”34 Other states have
had safety valves on the books for years, with consistent success . For instance, Minnesota’s safety valve al- lows
courts to depart from mandatory minimum sentences for certain gun crimes.35 According to ALEC member organization Families Against Mandatory
Minimums (FAMM): In 2010, 48 percent of Minnesota offenders subject to these mandatory minimums received the safety valve. On average, their sentences were 38
months shorter than those of people who received the mandatory minimum, saving Minnesota al- most 1,200 prison beds and $37.5 million in prison costs. At the
same time, violent crime in Minnesota has steadily de- clined since 2006, falling another 2.9 percent in 2010.36 Additionally, Connecticut, Florida, Maine,
Montana, New York, Oregon and Virginia already have similar safety valve provisions in their statutes.

State-level reform is best- only state agencies can tailor policy to local needs
Subramanian & Delaney 14 – Ram Subramanian joined Vera’s Center on Sentencing and Corrections (CSC)
in 2010. In CSC, Ram provided research and technical assistance to state and county departments of corrections
seeking to understand and reduce their overreliance on incarceration, or address sexual abuse in confinement. He
also worked closely with other state bodies interested in reforming their sentencing laws. In addition, Ram oversaw
the Center’s international comparative sentencing and corrections work, and all Center publications, on many of
which he was the lead researcher and author. Ruth Delaney provides technical assistance to states seeking to
implement new policies and practices and conducts research into justice policy trends. Currently, she manages
Vera’s assistance to colleges and corrections agencies seeking to expand access to postsecondary education for
currently and formerly incarcerated people. She has co-authored several reports at Vera, including Reimagining
Prison, Incarceration’s Front Door: The Misuse of Jails in America, and Price of Prisons: What Incarceration Costs
Taxpayers. Ruth is a PhD candidate in Sociology at the Graduate Center of the City University of New York from
which she also earned an MA in Women’s Studies. She holds a BA in English from Manhattanville College. (Ram
& Ruth, “Playbook for Change? States Reconsider Mandatory Sentences.” Center on Sentencing and Corrections.
February 2014. DOA: July 2, 2020. https://www.prisonpolicy.org/scans/vera/mandatory-sentences-policy-report-
v2b.pdf)//MGalian
Because many recent reforms to mandatory sentences have narrow eligibility requirements or are invoked at the discretion of one or more system
may ultimately be limited . Policymakers looking to institute similar reforms in
actors, the impact that was sought from the changes
order to have a predictable impact on sentence lengths , prison populations, and corrections costs without compromising
public safety would do well to ask a number of key questions during the development of new policies. These can serve as an important guide to
drafters and implementers in maximizing the desired effect of the policy. In addition, there is a paucity of studies that rigorously examine the
effect of recent reforms on the criminal justice system, and thus a need for ongoing data-gathering and analysis to understand the impacts in order
As states increasingly look to each other for sentencing reform
to re- port the results to concerned policymakers.
strategies , deliberate , data-driven policy development and research into outcomes are ever more critical . Moving
forward, there are a number of steps policymakers can take to ensure reform efforts fulfill their promise and are sustainable: Link proposed
policies to research. Balancing the concerns of justice, public safety, and costs in revising sentencing schemes and policies is a challenging
undertaking. States need to take a methodical, research- driven approach that includes the analysis of all relevant state and local data to identify
key population subgroups and policies driving prison or jail populations and the gaps in service capacity and quality in
relation to demonstrated prevention and recidivism reduction needs. This approach should also include the use of evidence-based or best practices
policymakers
when crafting solutions. By tying the development and shape of new policies to the results of these kinds of analyses,
increase their chances of achieving better criminal justice resource allocation and fairer, more
consistent sentencing practices. In reviewing data, some questions policymakers may want to ask include: Can populations be
identified—by offense or status (e.g., ha- bitual drug or property offenders)—that are driving the intake popu- lation, causing more people to
enter the prison system? Has length of stay changed for any of these subgroups? If so, can policies or practices be identified which cause this
increase (e.g., sentence enhancements for second- or third-time offenders)? What have been the costs associated with either the increasing
intake or length of stay? For example, automatically increasing the time for some offenses or offenders could mean a significant increase in the
number of older and sicker inmates and in the costs for inmate care over time. On the other hand, policies that require automatic incarcer- ation
for low-level offenses or parole violators may mean an increase in the volume of shorter-term prison stays and the costs of doing more diagnostic
assessments. Can approaches be identified that have been demonstrated to be safe and effective to handle these cases differently? Are
policymakers considering policies and practices that both reduce the intake and the length of stay (e.g., increase eligibility for a community
sentence, roll back enhancements for certain offenses, or remove mandatory mini- mum sentences)? Have the cost implications of the proposed
changes for counties, tax- payers, and victims been analyzed? Have policymakers factored in the cost of new services and interventions that
might be called for either in prison or the community? What are the anticipated benefits—as demonstrated by past re- search—for offenders and
the community due to shorter custodial sentences or community-based interventions? > Include stakeholders in policy development. Have key
constituencies and stakeholders been informed of the results of these analyses and invited to provide their ideas, opinions, and concerns? Given
the discretionary nature of recent reforms, it is essential to involve the system actors most affected by proposed changes—district attorneys,
judges, and defense attorneys—and whose everyday decisions will play an important role in whether new policies have their intended impact. By
providing these and other affected stakeholders (e.g., victim advocates, county sheriffs, and commissioners) with opportunities to express their
opinions and concerns, vet policy proposals, and make recommendations for implemen- tation, education, and training, they are less likely to feel
marginalized by the deliberations and oppose the reforms. In addition, mutual understand- ing of the goals of an intended reform can increase its
potential impact. > Match proposed policies with available resources in the community . If policymakers propose
new sentencing options that divert certain of- fenders away from prison and into community supervision or treatment, receiving systems or
programs must have the capacity and resources necessary to manage larger populations. For new policies to succeed in making communities
safer, policymakers must ensure that newly avail- able community sentencing options have the necessary staff, training, and program space to
handle the influx of new offenders. Without these vital prerequisites, policymakers risk the long-term sustainability and limit the impact of a new
effort. > Define eligibility requirements clearly and match these to the policy goal. Safety, justice, and cost reduction should guide policymakers
when crafting the specific eligibility criteria or classifications of offenses or offenders in new policies. For example, when aiming to reduce the
num- ber of offenders who are incarcerated or their lengths of stay, the criteria should link eligibility to an identified driver of a state’s prison
population. The objective of a proposed reform may be undermined, for example, if eligibility is unnecessarily limited to the lowest risk
offenders, particu- larly if such offenders do not constitute a significant proportion of the incarcerated population. In addition, eligibility criteria
should be defined as clearly as possible in order to minimize the potential for confusion among the system actors responsible for implementing a
new sentencing policy. Clearly defined eligibility requirements will eliminate the potential for disparities in application and prevent system actors
from subjectively deciding which offenders will benefit from a policy change.
 S- Federal Follow On
State rollback will spur federal reform and states are capable of repealing mandatory
minimums
Rhodan 14 – a D.C.-based journalist and writer. She was previously a staff writer at TIME Magazine and has
contributed to ESSENCE and FORTUNE magazines. As a political reporter, she has covered the White House, the
Supreme Court, Congress, and immigration policy, the intelligence community, criminal justice, and race-relations.
In 2014, Maya wrote an award-winning report on African American women’s reproductive rights for Essence’s May
2014 issue. In 2015, she was a part of a two-woman team dispatched to Charleston, S.C. to report on the aftermath
of the Emanuel AME Church shooting. The team won a Deadline Club award for their gripping report. In 2016,
Maya conducted an exclusive, on-camera interview with U.S. President Barack Obama and prima ballerina Misty
Copeland. A 2012 graduate of Howard University's School of Communications, she has also written and reported
for The Center for Public Integrity, Ebony.com, Washington City Paper, Washingtonian Magazine, and the NNPA
newswire and its member newspapers. (Maya, “States Lead The Way on Sentencing Reform.” Time. February 14,
2014. DOA: July 2, 2020. https://swampland.time.com/2014/02/14/mandatory-minimum-sentences-states-
reform/)//MGalian
While the Obama administration has spent the past several months rolling out piecemeal sentencing reforms for non-violent drug offenders,
states have already taken a hatchet to mandatory minimum sentencing , according to a new report. “Backed by
decades of research demonstrating that longer sentences have only a marginal effect in reducing recidivism and that many offenders can be safely
and more effectively supervised in the community, more and more states are revisiting tough-on-crime sentencing
policies in pursuit of a fairer, more cost efficient justice system,” said Peggy McGarry, director of the Center on Sentencing and Corrections
at the Vera Institute of Justice. A new Vera Institute of Justice report shows that since 2000, 29 states have enacted laws increasing judicial
Thirty-two bills have been passed within the past five
discretion and revising when and how sentences are handed down.
years alone , according to the report. States , the report shows, are becoming champions of reform, acting ahead
of both Congress and the Obama administration . “Fueled by a concern about the growth in prison populations and
associated costs, and supported by advocacy groups, practitioners, researchers, policy analysts, and legal organizations, a growing number of state
legislatures from Texas to New York have successfully passed laws limiting the use of mandatory penalties ,” the
report reads. “Mostly in relation to nonviolent offenses, and primarily around drug or drug-related offenses.” The federal government
is working to make similar roll-backs on mandatory minimum sentences , which civil rights groups blame for
the exploding prison population in recent decades. Last August, Attorney General Eric Holder issued new guidelines to judges over the use of
mandatory minimum sentences for low-level, non-violent drug offenders. In January, the Senate Judiciary Committee cleared a path forward for
the Smarter Sentencing Act, which would eliminate mandatory minimum sentences for certain drug offenses and retroactively apply existing
some states have already noticed a reduction in
reforms. Though there is little research on the impact of such reforms,
prison cost and population , according to the new report. In Michigan, where mandatory minimum sentences were eliminated in
2002, the state closed 20 prisons and lowered correctional spending by 8.9 percent over eight years. But the
impact of the reforms could be narrow in the cases where only low-level and non-violent offenders are impacted. And some organizations have
griped about the potential for some laws and proposed measures—including the Smarter Sentencing Act—to add more mandatory minimums
more than 60 percent of federal
when violent crimes occur, particularly sexual assault. “We cannot overlook the fact that
district court judges agree that existing mandatory minimums for all offenses are too hig h,” the
American Civil Liberties Union said in a blog post.
DEATH PENALTY
 1nc

The 50 states and all relevant territories should:

- Withdraw lethal injection protocols;

- Close execution chambers;

- Grant reprieves to death row inmates; and

- Abolish the death penalty.

It solves the aff- California proves- recent policy was highly symbolic and states set the tone
for national death penalty policy
Arango 19 - a Los Angeles correspondent for The Times. Before moving to California, Mr. Arango spent
seven years as Baghdad bureau chief, covering the drawdown of American forces in Iraq, the rise of the
Islamic State, the downfall of Prime Minister Maliki, the return of the American military, and the offensives
against the Islamic State in Falluja and Mosul. Doubling as the Istanbul bureau chief for five years, he also
covered Turkey’s decline from a rising Islamic democracy to an authoritarian state, a trajectory punctuated
by mass protests, terror attacks, a botched coup, a migration crisis, and a military incursion into Syria.
Before heading overseas, Mr. Arango had been a media reporter for The Times since 2007. He is from
Vermont. (Tim, “California Death Penalty Suspended; 737 Inmates Get Stay of Execution.” The New York
Times. March 12, 2019. DOA: June 20, 2020. https://www.nytimes.com/2019/03/12/us/california-death-
penalty.html)//MGalian
LOS ANGELES — Gov. Gavin Newsom announced a moratorium on capital punishment on Wednesday, granting a temporary
reprieve for the 737 inmates on the state’s death row, the largest in the Western Hemisphere. The
move is highly symbolic because legal challenges have already stalled executions in California; the last one was in
2006. But death penalty opponents hope that because of California’s size and political importance, the

governor’s action will give new urgency to efforts to end executions in other states as popular support
for the death penalty wanes. Mr. Newsom, a longtime opponent of capital punishment, cited its high cost, racial disparities in its application and wrongful convictions, and
questioned whether society has the right to take a life. “I know people think eye for eye, but if you rape, we don’t rape,” he said. “And I think if someone kills, we don’t kill. We’re better than
that.” He continued, “I cannot sign off on executing hundreds and hundreds of human beings, knowing — knowing — that among them will be innocent human beings.” Supporters of capital
California voters have rejected an initiative to abolish the death
punishment said the move went against the will of the state’s residents.

penalty and in 2016, they narrowly approved Proposition 66 to help speed it up. “ I think this would be a
bold step and I think he’s got to be aware of the political downside,” said Michael D. Rushford, president of the Criminal Justice Legal Foundation, an organization in Sacramento that
favors the death penalty and helped draft the ballot proposition, speaking before the governor’s announcement. “Voters have had multiple opportunities in California over three decades to
abandon the death penalty and they’ve shut them down at every chance.” Former Gov. Jerry Brown, a liberal who made criminal justice reform in California a hallmark of his legacy, resisted
His refusal was in some ways a political gift to Mr. Newsom,
calls to commute California’s death sentences before he left office in January.

giving him the opportunity to take a high-profile position with national significance early in his
administration. In 2004, Mr. Newsom took a similar tack as mayor of San Francisco, when he legalized gay marriage in the city at a time when even the Democratic Party opposed it.
With capital punishment, Mr. Newsom is not at the vanguard of the opposition movement. The death penalty has been on the decline in America

for two decades. But it has become a defining issue for him, widening the dividing line between California
and the policies of President Trump , who has spoken out in favor of the death penalty, even for drug dealers .
After the news of Mr. Newsom’s decision broke, Mr. Trump said on Twitter: “Defying voters, the Governor of California will halt all

death penalty executions of 737 stone cold killers. Friends and families of the always forgotten VICTIMS
are not thrilled, and neither am I!” Speaking several hours later, Mr. Newsom said he had met with families of victims and they had expressed passionate but
conflicting views on capital punishment. But the governor made it clear that his decision came down to his own conscience, prodded by impending decisions such as whether to support the

An executive order Mr. Newsom signed on Wednesday does three things: grants reprieves to
state’s lethal injection protocol.

the inmates currently on death row — they will still be under a death sentence, but not at risk of execution; closes the execution
chamber at San Quentin prison and withdraws the state’s lethal injection protocol
; , the formally approved
procedure for carrying out executions. “Three out of four nations in the world know better and are doing better,” Mr. Newsom said. “They’ve abolished the death penalty. It’s time California join
those ranks.” Supporters of the death penalty predicted legal challenges to any moratorium. Michele Hanisee, the president of the Association of Deputy District Attorneys in Los Angeles said
that reprieves for condemned inmates would be, “in effect, invalidating the law” that California voters have repeatedly affirmed, despite the liberal values that dominate the state. “I think it
surprises me too, sometimes,” she said. “California is liberal, I think we all know that. We have Hollywood, and the music industry, which I think affects people’s thinking. I think with the death
penalty it comes down to specifics of cases. We have serial killers and lots of bad people in California.” Mr. Newsom said voters were well aware that he opposed capital punishment when they
elected him. In 2012, he was the only statewide official to publicly support a ballot initiative to repeal it, and he has said in interviews that the question of what he would do if confronted with the
possibility of an execution on his watch weighed heavily on him.Mr. Newsom’s move will surely be applauded by liberal activists,
members of his own party and many conservatives, some of whom have come to see the death penalty as
exorbitantly costly and have argued against it on economic grounds. Three other governors — in
Oregon, Colorado and Pennsylvania — have issued moratoriums on the death penalty. In other states, the
practice has been abolished by either legislatures or courts . The latest was Washington, which last year became the 20th
state to end capital punishment when the State Supreme Court ruled it unconstitutional , after a
moratorium issued by the governor. “A moratorium in California has enormous symbolic value ,” said Robert
Dunham, the executive director of the Death Penalty Information Center. “ It’s part of the momentum we are seeing .” But in 2016, Californians

doubled down on the death penalty, approving a measure that streamlined the appeals process, which has typically
taken about 25 years in California for condemned prisoners. The initiative, which was backed by many law enforcement officials and prosecutors, passed with 51 percent of the vote, belying
Even without a
California’s national image as place where politics was steadily moving to the left. It was approved at the same time that voters legalized marijuana.

moratorium, capital punishment in California has stalled in the courts because of challenges to the state’s
use of a three-drug protocol, which can cause painful deaths. New death sentences have been on the wane. But the endurance of the death
penalty in California has acted as a check on the national movement against capital punishment , said Shilpi
Agarwal, a staff attorney at the American Civil Liberties Union in San Francisco who is involved in the lethal injection litigation. “ It is a state people look to to set

the tone for national policy,” she said. “The fact that so many states have abolished the death penalty — but
California hasn’t — has given people cover for this narrative that people are still supportive the death
penalty.” In an interview last fall during his campaign for governor, Mr. Newsom cited his Irish Catholic, Jesuit background, saying he opposed capital punishment for “moral, ethical and
economic reasons.” He said he had been reading former President Bill Clinton’s memoir, highlighting passages about how he faced the death penalty as governor of Arkansas. Asked if he would
sign a death warrant if a planned execution reached his office, he said then, “I’m not prepared to answer that question, because I’m not prepared to answer the question. And in that preparation

California governors are limited in their power to commute sentences, but they do have
comes a lot of soul searching.”

the power to issue temporary reprieves . A moratorium, said Stefanie Faucher of the 8th Amendment Project, an organization that opposes
capital punishment, is “functionally a series of reprieves.” In order to commute death sentences to life in prison for death row inmates that have a prior felony,

which many do, Mr. Newsom would need approval from the California Supreme Court. California, which reinstated the death penalty in 1978, has 737 inmates on

death row in San Quentin prison, about a quarter of the total number of death row inmates in the U nited S tates. But only 13
executions have been carried out since 1978. The last one, in 2006, was of Clarence Ray Allen, who was executed 23 years after his conviction for hiring someone to carry out three murders.
the practice is rife with racial disparities and is not justified by
Opponents of the death penalty, including Mr. Newsom, have long argued that

the high cost to state taxpayers. One study, in 2011, found that California pays $184 million a year to sustain capital
punishment — or close to an accumulated $5 billion since the practice was reinstituted in 1978. In February, Mr. Newsom intervened in a high-profile death row case that for years
activists have claimed was a prime example of racial injustice. Kevin Cooper, a black man who was convicted of four brutal murders by stabbing in 1983, has long maintained his innocence. His
supporters have put forward evidence that he was framed by San Bernardino officers. Mr. Newsom ordered DNA testing in the case, something that state officials had refused to do in the past.
The possibility of wrongful convictions — nationally, more than 150 people on death row have been exonerated since the mid-1970s, according to the National
Coalition to Abolish the Death Penalty — has also energized the opposition movement, around the country and in California.
Last April in California, a man who had been on death row for 25 years for murdering a young girl, a former farmworker named Vicente Figueroa Benavides, was freed after a court determined
that testimony given at his trial was false.
 S- Federal Follow-On
State abolition of the death penalty would make it unconstitutional on a national level-
counterplan causes SCOTUS follow on
Scherzer 09 - Chief of Strategic Initiatives, New Jersey Division on Civil Rights at New Jersey Attorney
General's Office, and writer for Yale Law School. (Aaron, “The Abolition of the Death Penalty in New Jersey and
Its Impact on Our Nation's "Evolving Standards of Decency.”” Michigan Journal of Race and Law. 2009. DOA:
June 20, 2020. https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1081&context=mjrl)//MGalian
state-by-state repeal could
If other states follow New Jersey's lead, fulfilling Justice Brandeis' vi- sion of states as laboratories of experimentation,188 this
spark nationwide repeal . Under this vision, states might look to see the results of legislative death penalty repeal in New Jersey and New Mexico. States may be
particularly interested in examining the effect that the repeals have on criminal justice system costs, violent crime rates, and the way that victims'
families feel about the criminal justice system. As one preliminary piece of evidence, the number of murders in New Jersey actually decreased slightly in the
year after the death penalty was abolished .' 9 If these statistics hold up over time, this would seem to un- dermine the argument that the death penalty is a
necessary deterrent to murder. 90 Politicians in other states will no doubt be interested in the political repercussions of repeal for those politicians who voted for the repeal stat- utes in New
Jersey and New Mexico. Death penalty repeal in New Jersey does not appear to have had negative political repercussions for New Jer- sey politicians. In fact,
Chris Christie, a former U.S. Attorney who recently beat Governor Corzine in a bitter campaign for New Jersey Governor, did not make death penalty repeal into a campaign issue and does not

If politicians in
seem inclined to reinstate the death penalty. Although he sup- ports the death penalty, his campaign website did not appear to mention the death penalty at all.' 9'

other states pass death penalty abolition bills , the Supreme Court may view this legislative action as
pertinent evidence in its evaluation of the constitutionality of the death penalty . In previous capital
punishment decisions, the United States Supreme Court has examined state trends to help determine what constitutes
cruel and unusual punishment . 92 In recent years, the Supreme Court has overturned the death 93 penalty for the mentally retarded in
Atkins v. Virginia,' and for minors in Roper v. Simmons, '94 in part based on the number of states that had abolished the
death penalty for those classes of defendants . In Atkins, the Court, in justifying its reliance on changes in state law, held that A claim that punishment is
excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the 'Bloody Assizes' or when the Bill of Rights was adopted, but rather by those that currently
prevail. As ChiefJustice War- ren explained in his opinion in Trop v. Dulles: 'The basic concept underlying the Eighth Amendment is nothing less than the dignity of

man.... The evolving standards of decency that mark the progress of a maturing society.'9 5 In fact,
Amendment must draw its meaning from the
the Justices have looked to changes in state law in areas as diverse as sodomy and evidentiary
privileges to help determine the outcome of Supreme Court cases . For example, in Lawrence v. Texas 96 the majority opinion noted
the changes that had occurred in state laws around the country since the Court's decision upholding Georgia's sod- omy ban in Bowers v. Hardwick.197 The majority noted that "[t]he [twenty-
five] States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to [thirteen]" '98 The Court considered this, among several other factors, as weighing in
favor of overruling the Bowers precedent. In an analogous context, the Court has demonstrated that it will look to state policy to help determine evidentiary
privileges. In Jaffee v. Redmond, 99 the Court held that "the fact that all [fifty] States and the Dis- trict of Columbia have enacted into law some form of psychotherapist privilege" confirmed
that it was appropriate for the federal courts to rec- ognize this privilege.200 The Court found the changes in state evidentiary law to be relevant even though most of these changes were

legislative and not judicial.2 0 ' The Court found that " the policy decisions of the States bear on the question whether
federal courts should recognize a new privilege or amend the coverage of an existing one ., 2 2 This is not to
say that state-level action is the only way to get the Supreme Court to over- turn precedent; however, it is clear that a change of state law in a significant

number of states is one way to facilitate Supreme Court action. Given that many states modeled their death penalty
statutes on the Model Penal Code (MPC),20 3 it is also significant that the American Law Institute (ALL), which developed the MPC, recently decided to withdraw the capital
punishment section of the MPC.2°4 In withdrawing the section, the ALl cited concerns about the administration of capital punishment in the United States. 20 The ALI's action, after
forty-seven years of keeping the capital punishment section on the books, may further spur state-level abolition. If the twelve states that have executed
fewer than three defen- dants since 1976 were to abolish the death penalty, they would join the fifteen states that have already abolished the death penalty.
This would mean that more than half of the states would have abolished the death penalty. Most importantly, the change would presumably be in one direc- tion.
The Court has made clear that in the death penalty context, "it is not so much the number of these states that is significant, but the
consistency of direction of change. ' '20 6 In fact, at the time of Roper v.Simmons, only five 207 states had abolished the death penalty for minors for minors was
upheld in Stanford v. Kentucky.2 8 However, in other con- texts, the Supreme Court has indicated a reluctance to overturn laws favored by at least half of the states." It is not clear that the

Supreme Court would apply the same test in the death penalty context. However, if in the future, only twenty-three states retained the death penalty, the
Supreme Court could declare the death penalty to be unconstitutional under either test.
Federal attempts to reform the death penalty paradoxically entrenches capital punishment
within states but state reform spills up to the national level because of the proportionality
doctrine
Mitchell 17 - an American attorney, academic, and government official. He has been nominated by President
Donald Trump to become Chairman of the Administrative Conference of the United States (ACUS). If he is
confirmed to ACUS by the United States Senate, he will serve a five-year term. Mitchell is currently a visiting
professor of law at Stanford Law School. From 2010–2015, he served as the Solicitor General of Texas. Mitchell has
argued four cases before the Supreme Court of the United States, argued dozens more in other courts, and authored
more than one hundred briefs. Mitchell has also served on the faculties of the University of Texas School of Law,
the George Mason University School of Law, and the University of Chicago Law School. (Johnathan, “Capital
Punishment and the Courts.” Harvard Law Review. May 10, 2017. DOA: June 20, 2020.
https://harvardlawreview.org/2017/05/capital-punishment-and-the-courts/)//MGalian
In Courting Death, Professors Carol Steiker and Jordan Steiker present a thoughtful and trenchant critique of the Supreme Court’s efforts in this
regard. They note that what began as an effort to cabin juror discretion and reduce arbitrariness in capital sentencing has devolved into
a regime that compels the states to give jurors unfettered discretion to withhold a death sentence. These supposed constitutional
commands to avoid both arbitrary decisionmaking, on the one hand, and anything that might limit a jury’s consideration and use of potentially
mitigating evidence, on the other hand, are not easily reconciled. And the Steikers present data and anecdotes to show that capital punishment
today is no less “arbitrary” than it was before the Supreme Court’s intervention — leaving us with a regime that imposes costly, arcane, and
highly technical rules on capital-punishment jurisdictions without any payoff in reducing arbitrary decisionmaking.
The Steikers also observe that many of these court-created doctrines suffer from vagueness and indeterminacy. The standard for assessing
ineffective assistance of counsel is especially open ended, and the courts (unsurprisingly) have applied this standard with varying degrees of
rigor. And it is especially hard to determine whether a capital defendant was prejudiced by alleged attorney errors at the sentencing phase. The
Supreme Court instructs courts to evaluate “whether there is a reasonable probability that, absent the errors, the sentencer . . . would have
concluded that the balance of aggravating and mitigating circumstances did not warrant death.” But a court can only guess at how a now-
disbanded jury might have applied a balancing test of this sort in a counterfactual scenario. The upshot is a regime that gives courts lots of
discretion in deciding whether to vacate or affirm death sentences — which further aggravates the arbitrary features of capital punishment. The
Steikers even suggest thatthe Supreme Court’s efforts to restrict the death penalty have had the
paradoxical effect of strengthening and entrenching the institution of capital punishment. The Supreme
Court’s ruling in Furman v. Georgia prompted states to enact new capital-punishment statutes at a time when public
support for the death penalty was waning, and the lengthy rounds of postconviction review that the Court has enabled induced Congress to enact
the Antiterrorism and Effective Death Penalty Act of 1996. The Steikers also argue that the Court’s regulatory efforts promote complacency
among prosecutors, jurors, and elected officials — who become less vigilant in their efforts to prevent wrongful or unjust death sentences because
they trust the courts to catch their mistakes. The extent to which the Court’s actions have had this “legitimating” effect on capital punishment is
an empirical question that is difficult to prove or falsify, but it is certainly a plausible hypothesis, and it serves as a useful reminder that judicial
policymaking may have unintended and counterintuitive consequences. Yet the pathologies with these court-created doctrines go even beyond
what the Steikers have identified. Let us first consider what the Steikers describe as the Court’s “proportionality” doctrine, which categorically
forecloses the use of capital punishment for certain classes of offenders (such as rapists, juveniles, and people with mental disabilities). In these
if the
cases, the Court purports to determine whether a “national consensus” opposes the use of capital punishment in these situations. And
Court finds that enough states either prohibit the death penalty or rarely apply it to the relevant
subset of offenders, it will declare any use of the death penalty in these situations to be contrary to
society’s “evolving standards of decency” — and therefore unconstitutional.

SCTOUS uses popular state opinion on the death penalty to rule on its constitutionality-
previous cases prove state policy spills up
Law Jrank 07- Law and legal reference library provides free access to thousands of legal articles, covering
important court cases, historical legal documents, state laws & statutes, and general legal information. Popular
articles include Landlord and Tenant Relationship, Health Insurance Law and Employment Law. The legal reference
database also covers historically important court cases such as the Ulysses obscenity trial, Plessy vs. Ferguson, Roe
vs. Wade and many others. All of the legal information on this website was professionally written and researched,
and each law article has been carefully selected -- all to create the most comprehensive legal information site on the
web. (“Capital Punishment Evolving Standards Of Decency.” Law Jrank. September 8, 2007. DOA: June 20, 2020.
https://law.jrank.org/pages/5003/Capital-Punishment-Evolving-Standards-Decency.html)//MGalian
However, administration of capital punishment is not necessarily constitutional under all circumstances, against all classes of
defendants, or for all types of crimes. The U.S. Supreme Court has recognized that what may have been constitutionally permissible when the
Eighth Amendment was ratified in 1791 might be cruel and unusual now , if application of the death penalty in particular cases
offends the "evolving standards of decency" test . Under this test, courts will examine prevailing opinions
among state legislatures, sentencing juries, judges, scholars, the American public, and the international community to determine
whether a particular application of the death penalty is cruel and unusual. For example, in Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106
L. Ed. 2d 256 (1989), the Court examined many of these factors and determined that there was no clear consensus against executing mentally
retarded defendants who had been convicted of murder. However, just 13 years later, the Court found that "standards of decency" had evolved to
a point where mentally retarded defendants could no longer be made subject to capital punishment without violating the Cruel and Unusual
Punishment Clause of the Eighth Amendment. ATKINS V. VIRGINIA, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (U.S. 2002). The Court
emphasized the fact that since Penry 18 states had passed legislation excluding the mentally retarded from the class of defendants
who are eligible for capital punishment. Applying the same type of analysis in Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed.
2d 306 (1989), the Court found that there was no national consensus prohibiting the execution of juvenile offenders over age 15. But the Court
did find sufficient proof of consensus against making rape defendants as a class that was eligible for capital punishment, stressing that only one
jurisdiction in the country at the time of its decision allowed capital punishment for the rape of an adult woman. Coker v. Georgia, 433 U.S. 584,
97 S. Ct. 2861, 53 L. Ed. 2d 982 (2002). Death by electrocution has been challenged several times as being inconsistent with "evolving standards
of decency". In a series of Florida cases, the U.S. Supreme Court denied certiorari in appeals where the petitioner offered proof that during the
execution the electric chair was engulfed by flames and that smoke had emanated from the inmate's head. But the Florida Supreme Court ruled
that death by electrocution does not violate the Eighth Amendment's prohibition of cruel and unusual, citing evidence that execution by
electrocution renders an inmate instantaneously unconscious, thereby making it impossible to feel pain when the electrical current is properly
maintained. Provenzano v. Moore, 744 So. 2d 413 (Fla. 1999), cert denied, 528 U.S. 1182, 120 S. Ct. 1222, 145 L. Ed. 2d 1122 (2000).

Federal courts don’t know how to interpret state consensus over the constitutionally of the
death penalty now- the counterplan clarifies through reform in all 50 states
Matusiak et al 14 - an assistant professor at the University of Central Florida, after recently graduating from
Sam Houston State University. A member and writer for the Department of Criminal Justice at the University of
Central Florida. (Matthew. Other contributing authors: Michael S. Vaughn and Rolando V. del Carmen. “The
Progression of ‘‘Evolving Standards of Decency’’ in U.S. Supreme Court Decisions.” Criminal Justice Review.
2014. DOA: June 20, 2020. https://journals-sagepub-
com.proxy.lib.umich.edu/doi/pdf/10.1177/0734016814531779)//MGalian
Varying sources reveal contemporary standards of decency in the United States, but the Court often uses the practices of state
and federal legislators and sentencing juries (Gregg v. Georgia, 1976). The use of trends in state and federal legislation as well
as sentencing juries are the most frequently cited objective indicators of contemporary standards of decency. There is much
debate, however, on the proper methods of evaluating those legislative actions and jury decisions to estab- lish a national consensus. One of
the concerns when establishing contemporary standards relates to simply counting legislative action in the states that
have already abolished the death penalty. By using multiple counting formats related to non-death penalty states, when a national consensus is
being established, the Court seems to vacillate between counting these states as for or against societal evolution. Additionally, when
considering sentencing juries, the Court prefers to gauge the moral compass of the nation by the frequency of sentences rather than
simply whether the sentencing juries from a specific state have utilized the death penalty for a category of offender. This was seen when the
Court addressed the application of capital punishment to juveniles (Roper v. Simmons, 2005; Thompson v. Oklahoma, 1988). The issue in doing
this was that the Court appeared to use different units of analysis to draw a national consensus , depending
on the justice authoring the opinion, which reduces the reliability of an often-cited constitutional test . Justice Scalia
has suggested that the use of inconsistent methodology caused confusion in the application of evolving standards of decency (Roper v. Simmons,
2005). Scalia’s critical stance on evolving standards of decency methodology is likely due in large part to his originalist viewpoint related to
Constitutional interpretation (Scalia, 2005). While the statutes and sentencing juries might be relatively objective, evidence used by the Court in
prior cases tends to be subjective. A limited number of individuals can reach greatly differing conclusions when interpreting public opinion based
on the same subjective evidence. Contemporary standards of the international community have been tapped by the Court in an effort to confirm
their position on Eighth Amendment issues (Atkins v. Virginia, 2002; Kalbeitzer & Goldstein, 2006; Roper v. Simmons, 2005). While this
practice was utilized in Trop when evolving standards of decency were established, its use has not become any less controversial. Also,
frequently cited fol- lowing Justice White’s statement in Coker was the impact of individual judicial judgment upon the validity of the death
penalty in relation to the Cruel and Unusual Punishment Clause when various categories of individual have sought exemption from the death
penalty. As previously suggested, Justice Blackmun in Furman provided the most thorough discussion of the relevance of individual judicial
opinion with regard to its role in Court decisions. As individuals, justices may abhor the death penalty, but as members of the Court, they must
interpret the Constitution, as it was written not how they wish it was written (Furman v. Georgia, 1972). Finally, evidence of evolving standards
of decency that appears to carry less weight typically has been relegated to footnotes (Kate, 2010). In those footnotes, the Court has cited social
science research, professional organizations, public opinion polls, and religious groups (Atkins v. Virginia, 2002; Roper v. Simmons, 2005;
Steiker, 2009). These methods of establishing contemporary standards are less frequently employed by the Court and tend to be less clear as to
their relevance, because the validity of such methods is contested. With respect to social science research, one side of the Court typically
identifies major methodological flaws, while the opposing side of the Court sees no such flaws in the study’s methodology or analysis.
DRUGS
 1nc

The 50 states and all relevant territories should cease cooperation with the federal
government over all drug related criminal offenses.

It solves the aff- state agents are responsible for 99% of drug arrests and state agencies have
the most flexible approach to drug policy
Snow 20 – principally practices in environmental law, with an emphasis on litigation, regulatory compliance,
internal investigations, and defense against government investigations and enforcement actions. Corinne draws on
wide experience at the U.S. Department of Justice, including serving as Senior Counsel in the Office of the
Associate Attorney General, which oversees all civil litigation on behalf of the United States, and as Counselor in
the Office of the Attorney General. Corinne most recently served as Counsel and Chief of Staff in the Environment
and Natural Resources Division of the U.S. Department of Justice, where she assisted in managing a 600-person
division that included 400 lawyers. In this role she helped manage the Division’s civil and criminal litigation arising
under more than 150 environmental and natural resources laws. (Corrine, “Cooperative Federalism and Substance
Regulation: Lessons Learned from the End of Prohibition.” Center For Alcohol Policy. January 1, 2020. DOA: June
21, 2020. http://carbondate.cs.odu.edu/#https://www.centerforalcoholpolicy.org/wp-
content/uploads/2015/03/Corrine_Snow_Essay.pdf)//MGalian
Today we have come to think that federal law is the primary driver behind our public policies. But as the debates and legal changes in the years
state law can be far more influential than federal regulation on the use of
surrounding the end of Prohibition demonstrate,

controlled substances. States can greatly impact the scope and effectiveness of a federal substance ban by limiting the local
law enforcement resources available to enforce the ban. States also have a great deal of power to continue to regulate a substance even after a
federal ban, like Prohibition, has been repealed. Just as the states continued to control the use of alcohol in a variety of ways after the Twenty-First Amendment was
passed, they could likewise limit marijuana use even if it was not a ban substance under federal law. The debates and resulting regulatory decisions at the end of
Prohibition demonstrate the variety of tools and powers that states can use to impact when, where, and how their residents use certain
substances. This paper will outline the contours of state and federal powers governing controlled substances. It will also look at different local reactions to the debate
to end Prohibition, and discuss some of the possible avenues to regulating products like marijuana, even absent a federal ban. In order to understand how these lessons
apply to the current debate on controlled substances, one must first understand the relationship between state and federal laws .
Our Constitution is based on a system of federalism, where both the national and state governments play a role in criminalizing and regulating
products like alcohol or marijuana. The federal government is supreme in its power, but limited in the scope of those powers . So
long as Congress acts within its enumerated powers when it passes a law, any state law that conflicts with a federal law is void.1 The Supreme Court
has already ruled that the federal government has the power to regulate the sale and distribution of both alcohol and marijuana. Because there is currently a federal law
outlawing the possession and sale of marijuana, no state has the power to make these activities completely legal. Although federal power has grown since the
significant room for states to formulate rules and policies designed to best meet the
Prohibition era, there is still

particular needs of their citizens. States are the “laboratories of democracy” within our federal system . They have
been experimenting with a variety of alcohol-related regulations for decades. This experimentation has also resulted in a growing body of court decisions
that explain the limits of both federal and state authority to regulate alcohol. That body of law can serve as a useful model for states looking to
understand how they can regulate other controlled substances with or without a federal law in place banning the substance. State legalization of a
they
controlled substance while the federal ban remains in place While states cannot fully legalize a controlled substance in the face of a federal ban,

still have great power to impact the rules governing the use of that substance , and the risks that their citizens face
for possessing, using, or selling the substance. The debates surrounding the end of Prohibition suggest that the selective enforcement of the federal ban on a
controlled substance may weaken the legitimacy of the law in the eyes of the public , and help bring about the end of the federal ban. This section will
outline the reasons that the federal Controlled Substances Act (“CSA”) has not been uniformly enforced across the states, and explain how proponents of
the Twenty-First Amendment made use of similar inconsistencies in enforcement to advocate for the repeal of Prohibition. The Eighteenth Amendment prohibited the
manufacture, sale, and transport of “intoxicating liquors,” but did not outlaw its possession or consumption.2 Congress passed the National Prohibition Act of 1919,
known colloquially as the “Volstead Act,” to enforce the Amendment.3 The Volstead Act defined “intoxicating liquor” as any beverage with more than 0.5%
alcohol.4 Like the Eighteenth Amendment, the Volstead Act did not actually prohibit buying or drinking alcohol, but it did mandate that “no person shall manufacture,
sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor except as authorized by this act.”5 The Volstead Act also superseded all
no analogous constitutional amendment governing the sale of any other
existing state laws prohibiting alcohol sales.6 There is
controlled substances, such as marijuana. There are, however, similarities between the federal law that currently classifies marijuana as a Schedule I substance,
known as the CSA, and the Volstead Act.7 From the beginning, implementation of the Volstead Act was problematic. First, there was a lack of support at the federal
level. “Successive Congresses refused to appropriate enough money to enforce the law[].”8 Congress also exempted enforcement officers from the Civil Service until
1927, which meant that the jobs could be given out as rewards under the political patronage or “spoils” system.9 State and local authorities similarly refused to
“commit the resources necessary to enforce the Volstead Act. For example, the state of Maryland refused to pass any enforcement issue .”10 As a
result, enforcement of the Volstead Act was spotty at best. “The illegal production and distribution of liquor, or bootlegging, became rampant, and the national
government did not have the means or desire to try to enforce every border, lake, river, and speakeasy in America. In fact, by 1925 in New York City alone there were
anywhere from 30,000 to 100,000 speakeasy clubs.”11 The same holds true for certain controlled substances governed by the CSA. Federal regulation of
marijuana should, in theory, apply uniformly across the nation. In practice, however, the substance has not been regulated identically in each state.
the federal
This is due in part to the federal government’s decision not to drive enforcement: “Rather than acting as a dictator of state policy,

government exercises, at most, a loose control over the general direction taken by lower levels of
government ”12 to control marijuana use. As a result, the drug policies among the states “do not exhibit true uniformity from state to state, but instead
display a sort of constrained diversity.”13 This model of co-governing between state and federal government is known as “cooperative federalism.” It is used to
regulate many areas of American life, including the use of alcohol and marijuana. Under the cooperative federalism approach, “the federal government first
establishes broad regulatory objectives and then utilizes grants and other incentives in an effortto encourage (but does not, strictly speaking,
require ) state cooperation in achieving those objectives.”14 Cooperative federalism allows the states to “maintain formal

policymaking autonomy ; thus, while states may face significant pressures to conform to federal preferences , there is always the
possibility that some will choose to deviate. ”15 Simply put, the federal government selects a goal, and the states are
free to determine how to achieve the result . This flexible approach allows states to tailor their methods based
on local preferences and concerns. Cooperative federalism provides state and local governments with great power to
shape the drug policies for their communities even with a federal ban in place . There are several factors that make
this possible. First, federal resources are limited, and federal law enforcement relies heavily on the expertise of state

and local authorities to implement the prohibition on marijuana . “[T]he vast majority of police resources in this
country— more than three-quarters — are employed not by the states [or federal government], but by local units of

government , principally counties and municipalities.”16 In 2000, state prisons held more than three times as many
people convicted of drug crimes than federal institutions .17 In addition, “[ s]tate governments are much
better equipped than the federal government to investigate and prosecute local, street-level crimes such as
drug possession .”18 Indeed, “ ninety-nine percent of drug- related investigations and arrests are carried
out by state agents .”19 During Prohibition many states enacted their own versions of the Volstead Act, and the original expectation was that states and
state resources would play a primary role in enforcing the Act.20 The Eighteenth Amendment itself gave state and local authorities an equal role in enforcing
Prohibition alongside the federal government.21
 S
State law enforcement sustains the war on drugs through key personnel and street-level
intelligence
O'Hear 04 - A nationally recognized authority on criminal punishment, Professor O'Hear teaches criminal law
and related courses. He is the author or coauthor of more than seventy-five scholarly articles, books, and book
chapters on sentencing, criminal procedure, and other legal topics. His books include The Failed Promise of
Sentencing Reform, Prisons and Punishment in America: Examining the Facts, and Wisconsin Sentencing in the
Tough-on-Crime Era: How Judges Retained Power and Why Mass Incarceration Happened Anyway. Professor
O'Hear is a graduate of Yale College and Yale Law School, where he was editor-in-chief of the Yale Journal of Law
& the Humanities and an editor of the Yale Law Journal. Following law school, he clerked for United States District
Court Judge Janet Bond Arterton in New Haven, Connecticut. He then practiced civil and criminal litigation at
Sonnenschein Nath & Rosenthal in Chicago. He joined the Marquette Law School faculty in 2000, and served as the
Law School's first Associate Dean for Research from 2008 to 2015. Professor O'Hear was a member of the
Milwaukee Fire and Police Commission from 2010 to 2016. He has been awarded the Robert W. Warren Public
Service Award by the Eastern District of Wisconsin Bar Association, and is an elected member of the American
Law Institute. (Michael, “Federalism and Drug Control.” Marquette Law Scholarly Commons. 2004. DOA: June 20,
2020. https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?
referer=https://www.google.com/&httpsredir=1&article=1179&context=facpub)//MGalian
The Cooperative Federalism Model While not well appreciated in the drug policy literature, the structure of federal-state relations in
this area (and the resulting pattern of constrained diversity) roughly parallels the arrangements in many other policy areas, from education to
welfare to the environment. These arrangements, referred to as "cooperative federalism," involve a combination of federal policy
mandates and inducements (such as conditional grants) that require or provide strong financial incentives for states to implement the federal
policy. 34 3 Public choice theorists have explained the emergence of cooperative federalism as a product of political-support-maximizing
decisions by politicians at all levels.344 This Section will use such models of cooperative federalism as a way to explain federal-state relations in
drug policy. 1. Why Not Full Federal Control over Drug Policy? The public choice account of cooperative federalism starts with an hypothetical
interest group that desires a particular governmental program, but is able to secure that program in only some states, not in all states or at the
federal level.345 States that enact the desired program soon join with the interest group to demand national enactment.346 This occurs because
the enacting states will hope to shift some of the expense of the program, to which they are already committed, to the federal level.347 Enacting
states may also be concerned about their ability to maintain the integrity of the program if neighboring states do not have the same
commitments.348 At the federal level, enactment in some states increases the attractiveness of the program, in part because the federal
government now has the opportunity to leverage state resources in rolling out a national program. 349 Federal legislators can accommodate the
interest group (and hence gain its political support) without the need to pay the full cost of the program. 350 A cooperative federalism
arrangement, in which the costs are shared between the federal government and the states, thus holds considerable appeal for both the original
enacting states (which get federal money and protection from competition from nonenacting states) and the federal legislators (who get to
claim credit for addressing the underlying problem, but can do so on the cheap). States that resisted the program initially will, by and large,
go along with it after federal enactment because of the promise of federal aid, but they will demand some residual policymaking autonomy so that
state legislators may also claim some political credit for the program's successes. Thus, a program lacking sufficient support to be fully adopted
nationally may become a quasi-national program when implementation costs are split between the federal and state levels and politicians at both
evolution of federal drug
levels can claim credit for addressing a social 351 problem. Consider how this model might explain the
policy. Some states began regulating opiates and marijuana long before the federal government did.352 States with stringent regulations,
however, found the integrity of their programs undermined by the easy availability of drugs in neighboring states with more lenient regulations,
353 so the stricter states requested that the federal government adopt a nationwide ban.354 The federal government did so, but neither preempted
implicitly relying on state and
state law nor dedicated the level of resources necessary for comprehensive federal enforcement,
local law enforcement to carry most of the load. 55 Gradually, as the war on drugs heated up in the 1970s and
1980s, the cooperative arrangements grew more complicated and more explicit , as the federal government developed law
enforcement assistance grants, multi-jurisdictional drug task forces, and equitable sharing of forfeited assets.356 The scenario currently looks
local law enforcement supplies a lion's share of the personnel and
something like this:

street-level intelligence necessary in order to implement federal drug policies .

In return for this contribution, the federal government supplies cash and specialized law enforcement services, and makes available federal
prosecutors, courts, and prisons for the most difficult, important, or high-profile cases. The costs of the federal war on drugs, in
short, are split . The federal contribution is designed to make pro-enforcement policies at the local level more cost-effective, and hence more
357 attractive to policymakers. To put the arrangement in different terms, we might imagine that Congress has a choice among four options for
drug policy: (1) do nothing, leaving the issue entirely for the states (no money/no control); (2) provide the states with unconditional grants to deal
with the drug problem, allowing the states to make drug policy free from constraints (some money/no control); (3) provide the states with
conditional funding that steers the states towards federally favored policies (some money/some control); or (4) take full responsibility
for making and implementing drug policy (all money/all control).35 The first option (no money/no control) holds little appeal
because federal legislators would lose the opportunity to gain political credit for responding to the drug issue. The fourth option (all money/all
control) likewiseholds little appeal because of the enormous expense of creating a federal police force that
could enforce drug laws effectively down to the street level . Rather than creating a redundant police infrastructure, Congress will find
it far less expensive to leverage existing local law enforcement capabilities.

State experimentation solves---California proves---yes follow-on

Whitelaw 17 – JD Candidate @ Loyola (Mallory, “A Path to Peace in the U.S. Drug War: Why California Should Implement the
Portuguese Model for Drug Decriminalization,” https://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=1746&context=ilr)

The U.S. is losing its very public war on drugs. Both at home and abroad, reformers balk at punitive drug policies that primarily employ the
criminal justice system to control drug use, thereby incurring heavy economic and social costs.2 Accordingly, unprecedented public
support for easing the U.S. drug war has catalyzed state-level drug law reform across the country .3 Over
twenty U.S. states have legalized medical marijuana .4 Furthermore, several U.S. states now allow the
recreational use of marijuana.5 Clearly, there is great public and legislative willingness to reform drug
laws. My note will focus on this opportunity for states, California in particular, to continue along the path of
liberalization by decriminalizing possession for all drugs . Furthermore, because U.S. states can be fertile
testing ground for changes to federal law, drug decriminalization in California will be a worthy experiment that
may pave the way for further deescalation of the U.S. drug war. To implement this change, I will argue that California
should look to Portugal’s decriminalization of drug possession as a proven model for liberalized drug policies. Following the Portuguese
approach in California will have a positive effect on the state’s budget by alleviating the social and economic costs associated with drug
criminalization. I will include specific predictions for how the state’s budget would be bolstered through refocusing the state’s resources from
criminalization to public health, as Portugal has done since 2001. Section II discusses the failings of U.S. criminalization of drug possession. It
will address how the government is trapped in a “no-win” pattern of costly over-incarceration, which actually exacerbates the drug epidemic, both
in addiction rates and in social ramifications, especially for vulnerable populations. Specifically, the section will discuss the economic and
structural burdens that criminalization places upon U.S. law enforcement, the penal system and the healthcare system. Section III will outline how
the country is on the cusp of a new age of drug reform . The section will briefly discuss the growing recognition of the failing
drug war, a few of the liberalized approaches to drug laws at the state level. In this spirit of reform, the
U.S. should look to
international models, specifically Portugal’s decriminalization approach, for reform frameworks. Section IV will document how
Portugal has decriminalized personal possession of all drugs. Portugal has implemented a system of regional panels that process most drug
offenders, diverting users away from the courts and the penal system. The section will further outline how Portugal’s system has had a positive
impact on drug addiction, and reduced risky user behaviors and drug related illnesses. These results have alleviated both the human and monetary
costs of drug abuse. Section V will argue that California is well poised to implement highly progressive drug law
reform. The state is faced with a drug-induced public health crisis and heavily impacted prisons . Yet currently,
California perpetuates the costly and ineffective U.S. approach of criminalizing drug possession. The section will argue that despite the state’s
recent reforms and its use of drug courts, California’s impacted prisons and strained budgets call for more drastic reform measures by rethinking
the state’s drug laws. Section VI will argue that California should pave the way for progressive U.S. drug reform by
implementing the Portuguese decriminalization model. The section will outline the expected economic and social benefits
of this model, working with the assumption that results would roughly mirror those seen in Portugal. Section VII will outline potential legal and
social obstacles to decriminalization in California. The note will conclude that California should be cautiously optimistic that Portuguesestyle
decriminalization will offer substantial benefits and help pave the way for further nationwide
liberalization of drug laws.

Pot proves
Whitelaw 17 – JD Candidate @ Loyola (Mallory, “A Path to Peace in the U.S. Drug War: Why California Should Implement the
Portuguese Model for Drug Decriminalization,” https://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=1746&context=ilr)

California, with its history of trailblazing marijuana laws, is well poised to provide the laboratory to
implement such a model. By following Portugal’s lead by decriminalizing possession for all illicit substances, the state may reap
significant rewards. To name a few, the state may see 40% fewer drug arrests,265 a drop in prevalence rates for drug use,266 and over $2 million
in Medicaid savings.267 Overall, calculating the total savings estimated in Section IV, supra, California’s budget may see rewards of over $480
million in the first few years after decriminalization. If California decriminalizes drug possession, this change could
collide with federal law. However, governments may use the cooperative federalism model provided by the
federal Clean Air Act and Clean Water Act to avoid conflicts between state-level drug decriminalization and federal
drug laws. After all, encouraging experimental drug law reform at the state level will help the remaining
U.S. states, and ultimately the federal government, to implement smarter, more effective laws that will
alleviate drug war casualties. California can and should lead the nation away from its destructive
criminal justice approach towards drug possession.

AT feds prevent
Whitelaw 17 – JD Candidate @ Loyola (Mallory, “A Path to Peace in the U.S. Drug War: Why California Should Implement the
Portuguese Model for Drug Decriminalization,” https://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=1746&context=ilr)

If California decriminalized drug possession, this new measure could conflict with Federal law .239 This
would not, however, be an insurmountable obstacle , as demonstrated by recent state laws legalizing
marijuana for medical purposes or for recreation, and the recent trend of federal toleration of these
experimental laws.240 However, beyond simply hoping for the federal government’s toleration of reformed state laws, arguments
against federal preemption may provide further protections for state-level drug decriminalization .
Furthermore, cooperative federalism may provide a sustainable solution to the conflict. California legalized
medical marijuana in 1996, despite the federal Controlled Substance Act’s categorization of marijuana as
a Schedule I drug.241 After a rocky start with federal authorities,242 Attorney General Eric Holder in 2009 announced that the
Department of Justice would not prosecute medical marijuana dispensaries conforming to state law, and instructed federal prosecutors to cease
targeting marijuana dealers who were in compliance with their respective state law.243 Showing further promise of federal cooperation with
state-level drug law reform, when several states recently legalized marijuana for recreational use,244 President Obama remarked that, “it would
not make sense for us to see a top priority as going after recreational users in states that have determined that it’s legal . . . We’ve got bigger fish
to fry.”245 Despite these promising remarks, a regulatory conflict between California’s decriminalization and federal drug laws would still exist,
and the federal government may still decide to crack down on state decriminalization measures that conflict with federal drug law.246 However,
various legal precedents exist for arguing the federal government should not interfere with state-level experiments with drug regulations. 1.
Federal Preemption and Anti-commandeering The Department of Justice could seek a Supreme Court ruling that state laws decriminalizing drug
possession are preempted by Federal law, and therefore void under the Constitution’s Supremacy Clause, which states that federal laws take
precedence over state laws.247 However, decriminalization advocates may undermine the federal government’s preemption argument by
questioning whether these liberalized state laws truly create a conflict with state law; that is, whether the laws authorize or advocate violations of
federal law.248 After all, implementation of the Portuguese decriminalization model, which requires users to come before a CDT-style dissuasion
panel, still comports with the spirit of education and deterrence behind federal drug prohibition.249 Additionally, advocates may argue that the
anti-commandeering principle allows states to constitutionally decide against criminalizing conduct under state law, even if such conduct violates
federal law.250 In other words, while California could not stop the federal government from enforcing federal
drug laws within the state, federal authorities may not command California to criminalize drug possession
under state law.251 State decisions to decriminalize drugs should be beyond the control of the federal
government. However, even if California prevails in the anti-commandeering battle, the federal government could still decide to enforce
federal drug laws within the state or attempt to force state compliance.252 For these reasons, simply prohibiting the federal government from
commandeering state law may be ineffective, and cooperative federalism may be a more sustainable solution.

States are best equipped to respond to the war on drugs- bipartisanship and growing
commitment to reform prove
Sánchez-Moreno 17- an activist, writer, and lawyer. She is the author of the narrative non-fiction book There
Are No Dead Here: A Story of Murder and Denial in Colombia (Nation Books, Feb. 2017). As the executive
director of the Drug Policy Alliance, Maria is at the helm of the leading organization in the US fighting to end the
war on drugs in the United States and beyond. Previously, Maria held several positions at Human Rights Watch,
including as co-director of its US Program, guiding the organization’s work on US criminal justice, immigration,
and national security policy; and as deputy Washington director, working on a broad range of US foreign policy
issues. She started her career there as the organization’s senior Americas researcher, covering Colombia's internal
armed conflict and working on the extradition and trial of former Peruvian President Alberto Fujimori. (Maria,
“New Solutions for Drug Policy.” Drug Police Alliance. January 11, 2020. DOA: June 21, 2020.
https://www.drugpolicy.org/issues/new-solutions-drug-policy)//MGalian
We need new metrics for measuring the success of our nation's drug policies. Rather than measuring success based on slight fluctuations in
drug use, the primary measure of effectiveness should be the reduction of drug-related harm – such as overdose deaths, drug addiction, and the
transmission of diseases such as HIV/AIDS and hepatitis C. Critically, though, our drug policies should also be evaluated based on the harms
caused by the policies themselves. We need to drastically reduce the enormous numbers of people behind bars for drug law violations.
We also need to end the corruption, public distrust of law enforcement, environmental damage, breakup of families, loss of civil liberties,
collateral sanctions like removal of financial aid for students, and racial disparities in drug law enforcement, prosecution and sentencing. Our
drug policies should be judged – and funded – according to their ability to meet these goals. U.S. States – Laboratories for Reform
Voters and state lawmakers are moving forward even while their federal counterparts remain paralyzed by decades of
inertia and drug war rhetoric . The number and scope of state-level reforms provide evidence of diminishing public confidence in
the reflexive “get-tough” mentality, and a growing commitment to approaches rooted in science, compassion,
health and human rights . Both Republicans and Democrats – in states from Maine to Montana, and from Mississippi to Michigan –
have led successful efforts to use marijuana for medical purposes, to reduce long and costly prison sentences for people who commit nonviolent
drug law offenses, to increase access to sterile syringes to reduce the spread of HIV/AIDS, and to prevent fatal drug overdose. International
Success The United States has almost single-handedly exported the prohibitionist model to every country in the world. The U.S. Drug
Enforcement Administration alone maintains more than 80 foreign offices in over 60 countries. In many parts of the world, however – from South
America to Europe – health-centered drug policies are being implemented that are proving to be remarkably more effective at improving public
safety and health than outright criminalization. Portugal presents the most significant and successful example of a post-criminalization, health-
centered drug policy. In 2001, Portuguese legislators decriminalized low-level drug possession and reclassified it as an administrative violation.
The explicit aim of the policy shift was to adopt an approach to drugs based not on dogmatic moralism and prejudice but on science and evidence.
At the heart of this policy change was the recognition that the criminalization of drug use was not justifiable and that it was actually a barrier to
more effective responses to drug use. Every objective analysis has clearly demonstrated that Portugal has drastically decreased its rates of violent
crime, addiction, and disease transmission since reforming its drug laws.
 S - legalization
States are the best equipped actor to experiment with legalization of cocaine and heroin
Jaeger 19 - Marijuana Moment's Los Angeles-based associate editor. His work has also appeared in High Times,
VICE and attn. (Kyle, “POLITICSLet States Decriminalize Heroin And Cocaine, Presidential Candidate
Hickenlooper Says.” Marijuana Moment. March 20, 2019. DOA: July 2, 2020.
https://www.marijuanamoment.net/let-states-decriminalize-heroin-and-cocaine-presidential-candidate-hickenlooper-
says/)//MGalian
John Hickenlooper, the former governor of Colorado and a current Democratic presidential candidate, says that the federal government
shouldn’t stop states from decriminalizing drugs like heroin and cocaine or allowing for supervised
consumption facilities where people can inject illegal substances more safely. He also said governments should seriously consider legalizing and
regulating sex work as a means to keep providers safe. BuzzFeed editor-in-chief Ben Smith moderated the conversation at SXSW and started by
asking Hickenlooper about two subjects he’s more intimately familiar with: marijuana and beer. Hickenlooper said both should be used in
moderation, though he acknowledged that tens of thousands of people die each year as a consequence of alcohol consumption. But then Smith
asked the candidate about broader drug decriminalization and, specifically, whether the U.S. should explore permitting safe
injection sites , where people can consume heroin and other illegal substances under observation from medical professionals who could
intervene in the event of an overdose and also offer support to overcome addiction. Hickenlooper didn’t immediately answer the question and
criminalizing drug use has not worked —the war on
instead talked about the failure of the war on drugs in general. “I think that
drugs,” he said. “Perhaps the major consequences has been millions of young people , generally from communities of color
from lower income communities, have not only gone to prison but they’ve been made felons. I think that has made lives
unbelievable harder for people that we should’ve been trying to lift up.” “Would you decriminalize harder drugs than pot?” Smith asked. “I think
that that’s a process,” Hickenlooper said. “I don’t think the federal government should tell any state that they should decriminalize marijuana.”
Smith pressed again and asked if the former governor thinks the federal government should be allowed to tell states that they can’t decriminalize
states are the
heroin or cocaine. “No,” he said. “My personal preference, and my political preference, is that I believe that
laboratories of democracy , and what we’ve done with marijuana, I opposed it in the beginning, but we did everything we could to
see if we could make it work.” Hickenlooper then talked about health impacts from high-THC cannabis use among young people, saying that he’s
talked to multiple scientists about the potential for long-term memory loss and the risk of developing or triggering mental health problems.
“There are real problems with it. But that being said, what we’ve created is a better system than the old one ,” he said.
“When you talk about creating safe rooms for narcotics, I don’t think that we have enough evidence to make a national decision yet, but I think if
Seattle wants to do that, then they should have the ability as long as they’re working within certain norms, they should be able to do that.” (To see
video of Hickenlooper’s remarks, go here, click “Watch Again” in the embedded video and then click on the the arrow that appears on the the
right. The conversation about drug policy begins around 24:00 into the video with Hickenlooper.) What about sex work? Smith asked. The
candidate mentioned that he’d recently read about the abuse of women who worked at a Florida massage parlor, where high-profile men allegedly
paid for sex acts. It’s an example of the type of abuse that a regulated system might be able to mitigate, he said. “There are a lot of arguments—
and I think they’re worth taking into serious consideration—that legalizing prostitution and regulating it so there are norms and protections and
we understand more clearly how people are being treated and make sure that we prevent the abuse, I think that it should be really looked at, I
really do,” Hickenlooper said. “I think that the present system, just like the war on drugs, isn’t working.” At the same time that support for
marijuana legalization is increasingly viewed as a minimum requirement for Democratic candidates, the conversation seems to be heading toward
broader drug reform. Rep. Tulsi Gabbard (D-HI), who is also running fro the party’s nomination, didn’t rule out decriminalizing all drugs during
a CNN town hall event last week. She also supports decriminalizing sex work.
 S - federal follow-on
State opposition to broader federal drug policy makes federal enforcement impossible- the
Prohibition era proves
Snow 20 – principally practices in environmental law, with an emphasis on litigation, regulatory compliance,
internal investigations, and defense against government investigations and enforcement actions. Corinne draws on
wide experience at the U.S. Department of Justice, including serving as Senior Counsel in the Office of the
Associate Attorney General, which oversees all civil litigation on behalf of the United States, and as Counselor in
the Office of the Attorney General. Corinne most recently served as Counsel and Chief of Staff in the Environment
and Natural Resources Division of the U.S. Department of Justice, where she assisted in managing a 600-person
division that included 400 lawyers. In this role she helped manage the Division’s civil and criminal litigation arising
under more than 150 environmental and natural resources laws. (Corrine, “Cooperative Federalism and Substance
Regulation: Lessons Learned from the End of Prohibition.” Center For Alcohol Policy. January 1, 2020. DOA: June
21, 2020. http://carbondate.cs.odu.edu/#https://www.centerforalcoholpolicy.org/wp-
content/uploads/2015/03/Corrine_Snow_Essay.pdf)//MGalian
When the federal government cannot make use of local resources , it has a much harder time enforcing its policies.
During Prohibition only eighteen states funded the enforcement of their state prohibition laws.22 While “[l]ocal enforcement in many Southern
and Western areas was both severe and effective; in other areas local enforcement was even more unlikely that federal enforcement. For years the
entire government of New Jersey openly defied the Eighteenth Amendment.”23 The federal government had a difficult time regulating
liquor sales in states where the Volstead Act did not enjoy local support. For example, during Prohibition the prosecutors, juries, and judges in
certain parts of the country were so unsupportive of the Volstead Act that it became impossible to enforce .24 This local
opposition made it hard to convict those who violated the Volstead Act and “contributed greatly to the notable disparities in the
effectiveness of [P]rohibition from place to place.”25 The same is true of marijuana regulation under the CSA today:
without local buy-in from the police, judges, and prosecutors, federal law enforcement must commit far more resources to investigate and
prosecute marijuana cases. Even aside from their resources, state governments are able to impact the personal behavior of their citizens in a
way that the federal government cannot . “[S]tate laws hold greater sway over social norms and personal
preferences than federal laws, at least in the area of drug policy. As a result, the existence of a federal ban does little to alter people’s
personal beliefs about medical marijuana.”26 For example, despite an ongoing commitment of resources, the federal government has been unable
to block California residents from obtaining marijuana under the state’s medical marijuana law. “Federal officials have been no more successful
in stopping other states from implementing their own medical marijuana laws.”27 As one commentator reflected, “[p]erhaps the most significant,
the ability of the
though largely underappreciated, lesson to be learned from fourteen years of state medical marijuana laws is that
federal government to override or interfere with state drug laws is actually quite limited .”28 Simply put,
the federal government cannot effectively regulat e products like alcohol and marijuana without the
assistance of the states . As with the end of Prohibition, the federal government has recently shifted its policies and priorities with
regard to prosecuting marijuana crimes. On August 29, 2013, the United States Department of Justice issued a memorandum in response to recent
state ballot initiatives on marijuana, which focused on using federal resources to prevent: (1) distribution to minors; (2) revenue from going to
criminal enterprises; (3) diversion to states where illegal; (4) trafficking of other drugs or illegal activity; (5) violence and use of firearms to
distribute; (6) drugged driving and other health consequences; (7) growing marijuana on public lands; and (8) possession on federal property.29
The memorandum went on to explain that, “[o]utside of these enforcement priorities, the federal government has traditionally relied on
states and local law enforcement agencies to address marijuana activity through enforcement of their own narcotics laws.”30
This indicates that the federal government will continue to allow states to drive marijuana policy within their own borders outside of these core
federal priorities. As a result, we can expect to see divergent marijuana policies develop throughout the states. In addition, state regulations no
longer align with the CSA. The CSA classifies marijuana in Schedule I substance.31 Schedule I is the most restrictive federal
category, and makes cultivation, distribution, and possession of marijuana a federal crime.32 At least in theory, “[t]he federal government’s
steadfast ban on marijuana is categorical and virtually without exception.”33 In contrast, Washington and Colorado have legalized non-medical
marijuana, “medical marijuana has been legal in California since 1996, and is now permitted in one form or another in twenty-one of the fifty
states as well as the District of Columbia.34 These state laws create a legal grey zone for their residents: even when the state permits
marijuana’s use and distribution in certain circumstances, the state laws cannot override the federal ban on marijuana. In 2005, the
Supreme Court ruled that “persons engaging in the intrastate cultivation, sale, or consumption of medical marijuana—even in full compliance
with state laws and regulations—could be prosecuted for violations of the federal [CSA]”.35 In the same case, the Supreme Court ruled that the
CSA is constitutional, even when it is applied to local marijuana-related activities. This means that a state resident can be prosecuted under
federal law for using marijuana, even if that use is legal under the laws of their state. “Under the doctrine of the supremacy of the federal
government, those state laws, of course, cannot take precedence over the CSA.”36 Nor can the state laws allowing for medical uses of marijuana
protect residents from the CSA. In 2001, the Supreme Court ruled that it is up to Congress to determine whether marijuana has any “medical
benefit and has interpreted the CSA in such a way that leaves no room for a common law medical marijuana exception or medical necessity
defense.”37 This tension between state and federal laws has left marijuana users in certain parts of the country in a regulatory limbo. The United
States Department of Justice announced in August 2013 that “[i]f state enforcement efforts are not sufficiently robust to protect against the harms
set forth above, the federal government may seek to challenge the regulatory structure itself in addition to continuing to bring individual
enforcement actions...”38 The federal government has selectively made good on this threat: “[s]ince October, federal agents have closed nearly
two-thirds of the more than 200 medical marijuana distributors in San Diego.”39 “Other executive departments have come to the aid of the DEA
and DOJ: The Treasury Department has pressured banks to close accounts of medical marijuana businesses; the IRS has imposed additional taxes
on dispensaries; and the Bureau of Alcohol, Tobacco, Firearms and Explosives has ruled that card-carrying patients who receive medical
marijuana cannot purchase firearms.”40 These factors collectively lead to an unpredictable and uneven regulation of marijuana: the federal
government is incapable of fully enforcing the ban , so technically illegal but low- priority drug activities go unpunished in
states that do not support the CSA. Each time federal priorities shift, the residents in these states could suddenly find that the federal government
is no longer willing to look the other way. States can confuse matters more by passing laws that permit certain uses under state law, misleading
people into believing that they will not be prosecuted for engaging in these acts.41 Proponents of the Twenty-First Amendment pointed to these
same issues of uneven enforcement during the debates at the end of Prohibition to justify its repeal. The debates surrounding the end of
Prohibition indicate that state and federal enforcement policies can have a very real impact on the perceived legitimacy of a substance control
ban. An absence of rigorous enforcement can itself undermine the need for a ban in the eyes of the public. The uneven enforcement of the
Volstead Act led many law-abiding citizens to believe that Prohibition threatened the rule of law: “The mass violations of national prohibition in
the 1920s, followed by the Depression of the 1930s, raised a new specter: prohibition, many came to believe, undermined respect for the law,
including property law.”42 Viewed in this light, a repeal of Prohibition seemed like the lesser of two evils: better to allow people to drink legally
than to allow a break-down of deeper societal values. Uneven enforcement can also make a law seem irrational or unjust. For example, many
have pointed to the disproportionately harsh punishments for marijuana when compared to other substances such as cocaine.43 Once a law is seen
as unfair or arbitrary, public support for the law begins to erode . The arguments made by proponents of the Twenty-First
Amendment suggest that uneven regulation of marijuana can itself be part of the problem, because it leads the public to see the laws as less
legitimate and less fair. Indeed, scholars have made nearly identical arguments about the current state of marijuana regulation, asserting that
“unpredictable enforcement by federal authorities in states that have legalized medical marijuana not only threatens state drug policy, but
also the efficacy of federal enforcement .”44 Others have noted that “[t]he 44-year refusal of Congress and eight administrations
to alter marijuana’s place on Schedule I has made the law a laughingstock, one that states are openly flouting.”45 Much like those now
advocating for the legalization of marijuana, proponents of the Twenty-First Amendment also argued that legalizing alcohol would “provide jobs,
stimulate the economy, increase tax revenue, and reduce the ‘lawlessness’ stimulated by and characteristic of the illegal liquor industry.”46
Likewise, a recent report suggested that Washington and Colorado “could see a major economic boon because of the legalization. The new
measure is expected to bring the two states more than $550 million combined, with more than 300 economists previously estimating that
legalizing pot could save the U.S. up to $14 billion a year.”47 Supporters of removing the federal ban also point to the high costs of long
incarcerations for those convicted under the CSA.48 Together, these same kinds arguments about the benefits to the rule of law and the economy
helped sway even those who did not drink liquor that society would be better if Prohibition was repealed. These arguments may also bring about
a collective shift in opinion (at least on the national level) about the necessity of a federal ban on marijuana.
ENVIRONMENTAL CRIMES
 1nc

The 50 states and all relevant territories should:

- Establish Environmental Courts to prosecute environmental crimes; and

- Allocate additional staff members and resources to monitor, enforce, and deter
criminal environmental conduct.

State environmental courts avoid problems associated with the federal court system-
congress recommendation and the Hawaii court proves
Mergen 16 - Deputy Section Chief, Appellate Section, Environment & Natural Resources Division, U.S.
Department of Justice. Mr. Mergen has served as a visiting lecturer at the William S. Richardson School of Law,
University of Hawai’i. The views expressed are solely those of the author. (Andrew, “An environmental court for
Hawai’i-will other states follow?” American Bar. January 1, 2016. DOA: June 22, 2020.
https://www.americanbar.org/groups/environment_energy_resources/publications/trends/2015-2016/january-
february-2016/an_environmental_court_for_hawaii-will_other_states_follow/)//MGalian
On July 1, 2015, Hawai’i became the second state in the United States, after Vermont in 1990, to create an environmental court . This
specialized court will have broad jurisdiction over civil and criminal cases affecting the environment and represents a bold experiment
in environmental law by a state often viewed as an environmental paradise. A brief history of environmental courts As every environmental lawyer knows,
environmental law took hold in the United States in the 1970s with the passage of a number of groundbreaking environmental statutes, including the
Clean Water Act and the Clean Air Act . Courts have since struggled with the technical aspects of cases arising under
these media-specific statutes. At the time Judge Leventhal explained, in the context of an early Clean Air Act case, that the court was approaching the issues presented
with “the utmost diffidence” because “the legal issues are intermeshed with technical matters, and as yet judges have no scientific aides .” Int’l Harvester
Co. v. Ruckelshaus, 478 F.2d 615, 641 (D.C. Cir. 1973). Given concerns about the scientific and technical complexity associated with this new field of
law it is perhaps not surprising that section 9 of the Federal Water Pollution Control Act of 1972 directed the President, through the Attorney General,
to study the feasibility of an environmental court system . Pub. L. No. 92-500, 86 Stat. 816 (1972). The Attorney General
assigned a task force, composed primarily of attorneys from the U.S. Department of Justice Land and Natural Resources Division (now known as the “Environment
and Natural Resources Division”) to perform the study. On October 11, 1973, then Attorney General Eliot Richardson submitted a report to Congress
recommending against the creation of an environmental court or court system. Report of the President, Acting Through the Attorney General, On the
Feasibility of Establishing an Environmental Court System (1973). Among the reasons offered by the Attorney General to oppose the court’s creation were the low
numbers of environmental cases, the need for generalist courts to answer the many forthcoming “big” questions in environmental law and logistical issues, including
the need to try criminal matters locally, which would make it difficult to combine civil and criminal cases. Id. at VII. Congress was apparently satisfied with this
But what of the states? Justice Brandeis famously wrote
conclusion and, hence, at present there is no federal environmental court or court system.

that “ a 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.” New State Ice Co. v. Liebmann, 285 U.S. 262 (1932). States have experimented with a
range of specialized courts including drug courts, mental health courts, domestic violence courts, and “reentry” courts, which focus on
easing individuals’ transition from prison to responsible citizenship. Then, in 1990, the Vermont state legislature created the Vermont Superior Court,
It hears appeals from state land
Environmental Division. Vermont’s Environmental Division is a trial court with statewide jurisdiction.
use permit decisions , from state environmental permits and other decisions of the Agency of Natural Resources, and from municipal
land use zoning and planning decisions. The court also hears municipal land use enforcement cases and enforcement actions brought by the Agency of Natural
Resources and Natural Resources Board. Since then, no other state had followed Vermont’s lead until Hawai’i in 2015. The Hawai’i Environmental Court The
operates
environmental court enacted by the Hawai’i legislature differs significantly from Vermont’s court. The Hawai’i Environmental Court
within the existing structure of the state judicial system . Environmental court judges are designated in the district and
circuit courts statewide. The courts will have jurisdiction over civil and criminal matters involving issues related to water, forests, streams, beaches,
air, and mountains, along with terrestrial and marine life. The legislature excluded from the new Environmental Court’s jurisdiction matters of law addressed
to the State Land Use Commission and shoreline setbacks. Twenty-two judges have been designated statewide by circuit. Each circuit has scheduled
their environmental calendars for specific days of the month . When judges do not have environmental cases, they will hear other types of cases. Initial
appearances for Environmental Court criminal cases will be placed on the regular arraignment and plea calendars in their respective districts . After
the initial appearance in court, subsequent proceedings are placed appropriately on the Environmental Court calendar in their respective district and circuit
courts. Ultimately, parties may appeal rulings from the respective district or circuit courts in accordance with the Hawai`i Rules of Appellate Procedure, through the
Hawai`i Intermediate Court of Appeals, and finally to the Hawai`i Supreme Court. The goal of the Environmental Court, as described by Hawai’i Supreme Court
Justice Mark E. Recktenwald, “ is to ensure the fair, consistent, and effective resolution of cases involving the
environment .” The new Environmental Court, as presently structured by the Hawai’i legislature, seems to avoid many
of the problems associated with a federal environmental court
system as identified in the 1973 Attorney General’s Report. By employing the existing court structure, “big” questions of environmental
law are still reviewed by generalist judges and the generalist Supreme Court. Criminal environmental matters are still prosecuted through the existing
localized structure, albeit before designated environmental judges. And, let’s not forget, environmental cases are no longer a rarity
anywhere. What the future holds Notably, there are currently 350 environmental courts operating in 41 countries worldwide. Chief among them

is India’s National Green Tribunal, long considered the world’s leading environmental court since it was established in 2010. Initiatives such
as the creation of a new Environmental Court in Hawai’i are worthy of study . Final resolution of complex
environmental problems may well benefit from such innovations . U.S. Supreme Court Justice Stephen Breyer, at the conclusion of his
recent book, The Court and the World: American Law and the New Global Realities (Knopf 2015), tells us that to address problems like environmental degradation
we must understand and consider legal efforts being undertaken throughout the world. Environmental attorneys might begin by looking at the ongoing
efforts of America’s 50th state to better incorporate environmental law into their judicial system through their new Environmental Court. Excellent
materials about the Hawai’i Environmental Courts and environmental courts worldwide are maintained by the Environmental Law Program at the University of
Hawai’i, William S. Richardson School of Law.

States should have staff members and resources to deter environmental crimes
Capitol Forum 19 - a premier subscription-based investigative reporting outlet covering complex M&A issues,
consumer protection situations, and government contracts. We are pleased to be able to republish some of their dated
articles on a select basis for our readers. For more information about The Capitol Forum please contact
[email protected]. (Twenty States Without Any Dedicated Criminal Enforcement Staff for
Environmental Crimes.” Prospect. December 24, 2019. DOA: June 20, 2020. https://prospect.org/environment/epa-
twenty-states-lack-dedicated-criminal-enforcement/)//MGalian
Twenty states have zero dedicated criminal enforcement attorneys or investigators , according to a document
maintained by the Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance. The Capitol Forum obtained the
states should
document through an open records request. To effectively monitor, enforce, and deter criminal environmental conduct,
have dedicated staff members and resources according to interviews with former EPA staff who collaborated with state-
level environmental programs during their careers. As the EPA and state agencies continue to grapple with alarm over ‘forever chemicals’ found
throughout the country’s water supply, the Flint water crisis, or repeat offenders, like the Port Neches chemical plant, this document
reflects the lack of state resources presently dedicated to criminal environmental enforcement. In preparing the document, an
EPA staff attorney compiled the number of “full-time employee[s] whose job is investigating and/or prosecuting pollution control crime” in all 50
states, Puerto Rico, the District of Columbia, and the U.S. Virgin Islands, based on the document and additional context provided by an EPA
spokesperson. In the document, dedicated levels of at least two staff, or “adequate,” are highlighted green; staff levels of zero, or “insufficient,”
are highlighted in red; and staff levels of one, or “n/a,” are unhighlighted. Only eight states were highlighted green for both inspector and
attorney columns.The document was last updated on February 12, 2019. In response to The Capitol Forum’s questions about state personnel
vacancies, an EPA spokesperson wrote, “EPA’s regulations establishing requirements for state pollution control programs do not specify any
required level of staffing for either criminal or civil enforcement.” “Where a state does not devote dedicated resources to pollution crime
enforcement,” the spokesperson continued, “EPA can sometimes identify other partners, such as state police or investigators from an Attorney
General’s Office who are willing/able to work environmental investigations in addition to their usual docket … the demands on EPA criminal
enforcement staff in a particular state have less to do with the availability of state partners as they do with the volume and nature of regulated
industry in the state, along with the compliance culture which characterizes those industrial sectors.” The agency’s full comment is available here.
EPA data and media reports demonstrate a sharp decline in federal criminal environmental prosecutions, convictions, and restitution since the
beginning of the Trump administration. Since 2018, the EPA has relinquished even more authority to states and is planning to continue that trend,
expanding state’s responsibilities alongside budget cuts on both the state and federal level. “State level criminal environmental
enforcement has been a long-standing challenge, but the recent de-emphasis of enforcement across the board is relevant,” Cynthia Giles, former
Assistant Administrator of the Office of Enforcement and Compliance Assurance said in an interview with The Capitol Forum. Giles continued,
“The problem didn’t arise because of the change of this administration, but the problem has been made worse. When the EPA pulls back on
enforcement it takes away a backstop and that undercuts states. When EPA is stronger on enforcement it makes states stronger.” Some states with
no dedicated staff defend their programs, defer to other agencies. Four former EPA officials in leadership roles interviewed by The Capitol
Forum emphasized how a state’s commitment to its criminal enforcement program is demonstrated through its staffing. “A program with zero
staff dedicated to criminal enforcement evidences no commitment to criminal enforcement,” according to an interview with former EPA
Assistant Administrator Steven Herman. “Such a failure significantly undercuts any other efforts the state may be making. Without a
dedicated criminal enforcement staff, you do not have a criminal program. To the extent that criminal enforcement is the ultimate deterrent and
prevention enforcement tool, it’s nonexistent. Without prevention and deterrence, government action is relegated to after the fact cleaning up
efforts—after the damage has been done,” Herman concluded.
 S- Environmental Crime
A recent SCOTUS decision expanded state courts influence in environmental cases- state
law provides additional protections beyond the EPA to prevent environmental
contamination
Lewis 20 - Morgan Lewis's team of more than 2,200 lawyers and specialists provide comprehensive corporate,
transactional, litigation, and regulatory services in major industries, including energy, financial services, healthcare,
life sciences, retail and ecommerce, sports, technology, and transportation. For more information about Morgan
Lewis or its practices, please visit us online at www.morganlewis.com. (“US Supreme Court Allows State Law
Restoration Claims Seeking Expanded Cleanup of Superfund Site.” JDSPURA. April 23, 2020. DOA: July 2, 2020.
https://www.jdsupra.com/legalnews/us-supreme-court-allows-state-law-32503/)//MGalian
The US Supreme Court held that CERCLA does not preempt state law restoration claims by landowners who are potentially responsible parties,
but clarifies that the Environmental Protection Agency must approve landowners’ restoration efforts . In Atlantic Richfield
Co. v. Christian, No. 17-1498 (2020), the US Supreme Court held that landowners located near a former Atlantic Richfield copper smelter in
Montana can bring state law tort claims against Atlantic Richfield for the restoration of their properties, even though the
US Environmental Protection Agency (EPA) previously approved a cleanup plan for the landowners’ properties under the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA). Atlantic Richfield argued to the Court that the landowners’ claims were
The Court held that the provisions of Section 113 do not preclude the
preempted by Section 113 of CERCLA.
landowners from pursuing their restoration claims in state court because their claims arise under
state law , not CERCLA. The Court further held that provisions of Section 113 depriving federal courts of jurisdiction to review an EPA
remedial action do not apply because the landowners sued Atlantic Richfield in state court, not federal court. However, the Supreme Court agreed
with Atlantic Richfield that the landowners, whose properties are located within the boundaries of the Anaconda Smelter Company Superfund
Site (Site), are potentially responsible parties under CERCLA, and therefore, any restoration the landowners might pursue is subject to approval
by EPA. Background Since its inception in 1884, historical operations at the Anaconda Copper Smelter contaminated nearby soil, groundwater,
and surface water. In 1977, Atlantic Richfield Company purchased the Anaconda Smelter. Shortly thereafter, EPA began working with Atlantic
Richfield to implement a CERCLA cleanup plan of the Site and the nearby area at a cost of approximately $470 million. Despite the cleanup
plan, nearby landowners sued Atlantic Richfield in 2008 in Montana state court for the contamination, raising state law tort claims, including a
claim to recover costs for restoration actions beyond the scope of EPA’s approved remedy . Atlantic Richfield moved for
summary judgment, arguing that CERCLA preempted the landowners’ state law claims for restoration damages. It also argued that the
landowners had to seek EPA approval under CERCLA before undertaking any restoration actions. The trial court rejected both of Atlantic
Richfield’s arguments, and on appeal the Supreme Court of Montana affirmed the trial court’s decision. Atlantic Richfield then appealed to the
does not strip Montana courts of jurisdiction
US Supreme Court. The Opinion The Supreme Court held that CERCLA
over landowners’ state law claims for restoration damages . The Court held that Section 113(b)’s reservation of
exclusive original jurisdiction to federal courts over controversies arising under CERCLA does not apply to the landowners’ restoration claims
because those claims arise under state law , not CERCLA. Further, the Court held that Section 113(h)’s provision that “[n]o
Federal court shall have jurisdiction under Federal law . . . to review challenges to a removal or remedial action” does not apply to the
landowners’ restoration claims because the landowners brought their claims in state court, not federal court.

Green criminologists are limited by data availability- state agencies are best equipped to
provide necessary data and resources
Jarrell and Ozymy 17 – members of the Department of Undergraduate Studies at Texas A&M University.
(Melissa and Joshua, “Red state, blue state, green state: analysing the geography of federal environmental crime
prosecutions within and across the U.S. states.” Nature. June 22, 2017. DOA: June 21, 2020.
https://www.nature.com/articles/palcomms201763)//MGalian
Abstract While green criminologists note that environmental crimes are taken less seriously than street crimes by law enforcement and the
and lack of governmental
criminal justice system, the diffuse structure of the environmental regulatory regime in the United States
databases makes empirical assessment of environmental crimes and enforcement efforts particularly difficult . This article builds
on a need in the green criminological literature to empirically assess the distribution and prosecution of environmental crimes in the United
States, by focusing on the underserved area of the U.S. states. Using content analysis of 972 federal environmental crime prosecutions 2001–
2011, this article explores the nature and geography of these crimes and subsequent prosecutions within and across the U.S. states . Our
findings show a wide distribution of crimes and prosecutions occurring across the states, with Clean Air and Clean Water violations
being particularly prevalent. We also find a weak trend between prosecutions and both the amount of pollution and number of
environmental groups per state, but the small number of cases and limitations of the data make drawing firm conclusions difficult. These findings
show an increased need to build databases to understand the prevalence of environmental crimes and the prosecution of those
offenses in the U.S. states. Green criminology is a theoretically and methodologically diverse sub-field of criminology that includes, “the study of
ecological, environmental, or green crime or harm, and related matters of speciesism and of environmental (in)justice” [South et al., 2013: 69].
Green criminologists seek to analyse the causes and patterns of environmental or green crimes as they relate to humans, animals and the natural
environment (Bierne, 2007, 2009; Fitzgerald et al., 2009; Nurse, 2013; South and Brisman, 2013). The sub-field of green criminology evolved in
response to a lack of theorizing about these kinds of harm and victimization, as well as a lack of descriptive and empirical studies found in the
traditional criminological literature (Lynch and Stretesky, 2003). While theorizing and describing the causes of green crime has been an early
goal of green criminologists, describing the extent of green crimes locally or comparatively can be difficult, as there are no uniform or national
statistics in the United States regarding the prevalence of environmental crimes (Gibbs and Simpson, 2009). Generally researchers develop
databases or rely on estimates, based on governmental data or more limited data provided by non-governmental organizations. For example, we
know that more than 30 percent of the U.S. population is exposed to unsafe levels of air and water pollution on a daily basis (Lynch, 2013) and
one-sixth of the U.S. population, live in close proximity to one or more hazardous waste sites (Cope, 2002), but it is difficult to demonstrate
empirically, in many cases, the exact prevalence, causes and consequences of this exposure. Given the lack of data on green crimes in the United
States, green criminologists and other scholars often turn to the examination of certain types of available data to get an idea of the universe of
green/environmental crimes. Stretesky’s (2006) work on environmental self-policing used data self-disclosed by companies on environmental
violations to the U.S. Environmental Protection Agency (EPA). Lynch et al. (2004a) used self-disclosed data on environmental violations and
compared it with the penalties assessed across different geographic areas. Other scholars use data on environmental crime sentencing and
prosecutions to examine both the kinds of crimes that exist, as well as how those crimes are prosecuted and why (Brickey, 2001; O’Hear, 2004;
Ozymy and Jarrell, 2016). We build on these studies and the current need in the green criminological literature for additional empirical studies
that help to further understand the nature and extent of green crimes in the United States. Our focus is to rely on data provided by the EPA on
environmental crime prosecutions. Through content analysis of almost 1,000 narrative summaries provided by the agency, we attempt to better
understand the geography of environmental crime prosecutions and subsequently, environmental crimes across the states. While this analysis is
limited to data on crimes that were actually investigated and prosecuted, the full extent of environmental crimes is difficult to know and no such
database exists at this time, nor are they likely to emerge in the short to medium term. Yet by focusing our analysis on the states ,
we explore an important and underserved area of this growing body of literature that attempts to assess
empirically the nature and extent of green crimes in different areas across the United States. This manuscript begins with an overview of the
green criminological literature, followed by a discussion of the nature of federal environmental crime prosecutions in the United States, and then
provides a description of the data, research design, and findings. Studying green crime The development of green criminology as a unique field of
study came as a response to the lack of interest in exploring the full universe of environmental harm in the broader criminological literature
(Lynch and Stretesky, 2003). The general reasoning for this omission stems from a standard definition of environmental crime that is limited in
focus to actions or omissions that violate the law (Situ and Emmons, 2000). Green criminologists broaden the definitional scope of environmental
crime to include forms of harm to humans and the natural environment, even if those actions do not always violate the law (Nurse, 2013; South
and Brisman, 2013). As a result of this conceptual shift, green criminology views environmental crime though a more holistic lens and from a
perspective that emphasizes “social harm” (Hillyard and Tombs, 2004; Hall, 2012). By expanding the scope to a broader study of social harm,
green criminology, as a distinct sub-field within criminology, looks at harm and victimization to humans, animals, and the natural environment
(Stretesky and Lynch, 1999; White, 2011). By extension, green criminologists seek to understand the extent of environmental harm, the causes of
this harm, the impact on victims, and to develop practical policy solutions towards reducing or eliminating harm in all of these contexts
(Skinnider, 2011; Ruggiero, 2013). While researchers suggest environmental or green crimes cause more overall harm to society than street
crime, such crime is rarely depicted as crime by the mass media or studied by mainstream criminologists (Burns and Lynch, 2004; Lynch, 2013).
As such, green criminologists, like those criminologists that study corporate and white collar crime, often include a focus on those acts that are
not treated as criminal, but should be acknowledged, studied, and treated as such by both the broader field of criminology and the criminal justice
system (Frank and Lynch, 1992; Stretesky and Lynch, 1999). In an effort to document and understand the extent, causes, and consequences of
various environmental harms in the United States, green criminologists are limited by data availability. Lacking a large
database equivalent to the National Crime Victimization Survey (Skinnider, 2011), scholars often must turn to national or regional
estimates of environmental harm or focus on extracting as much data as possible from specialized sources (Bullard et al., 2009). While such
examinations narrow the definition of environmental harm to crimes that are actually investigated and prosecuted, research must endeavor to
advance empirically on these fronts with the best data available, while continuing to both expand databases on environmental harm and work to
broaden the definition of harm across academic and policy circles. There have been a series of research efforts that have resulted in a growing
empirical literature that examines various governmental databases to cull information on aspects of environmental crime and harm in the United
States. Similar to this study, one source of data that provides insight into environmental crime is data reported to regulators and regulatory
and other databases
databases, such as the EPA’s Toxics Release Inventory, Enforcement and Compliance History Online (ECHO),
created by state environmental regulatory agencies . For example, Lynch et al. (2004a) examined self-reported data on
environmental violations and examined penalties across geographic areas with different socio-economic characteristics. Stretesky (2006) looked
at self-policing behavior and regulatory inspections and enforcement across companies that self-disclosed versus those that did not. Ozymy and
Jarrell (2011, 2012) examined regulatory loopholes in clean air policy at the state level, by examining self-reported upset event data from
petroleum refineries. Lynch et al. (2004a) compared penalties relative to violations in the oil refining industry. In a related study, Lynch et al.
(2004b) found that black and low income communities receive less protection from the EPA than other communities (436–437). Jarrell (2007)
used ECHO data to examine penalties against petroleum refineries in the U.S. states. Research has also emerged to look at the criminal
prosecution of environmental crimes using governmental databases. Brickey’s (2001) study examined hazardous waste prosecutions, noting more
serious offenses may lead to criminal prosecution. O’Hear’s (2004) study looked at data on environmental prosecutions and found defendants in
environmental crime prosecutions are often treated more leniently than defendants in other federal crime cases. Ozymy and Jarrell’s (2016) study
examined the predictors of federal environmental crime prosecution outcomes. The aforementioned studies are limited in scope to particular areas
of environmental law or issues related to prosecutions themselves. While the federal government often prosecutes many environmental crimes,
these crimes generally occur within the U.S. states and U.S. territories. Yet no studies have analyzed the nature of
prosecutions across the states in-depth or the types of environmental crimes that occur in these areas. While limited to cases that were actually
 understanding the geography of such prosecutions across the U.S. states
investigated and prosecuted,
provides valuable insights into both the types of environmental crimes that occurred, as well as what was prosecuted. This article
attempts to advance our understanding of the universe of environmental crimes, by starting to explain this geography within and across the states.
Before the discussion of the data and research design, it is worthwhile to discuss the nature of how federal environmental crimes are investigated
and prosecuted in the United States to provide context for how the data emerged. Prosecuting environmental crimes in a federal system Generally
speaking, countries employ a deterrence approach to combat environmental crimes. Deterrence theory works from the basic idea premise that
criminals will be less-likely to commit environmental offenses, if the chance of them being caught and punished is sufficiently high enough to
deter the behavior (Pink, 2013; Simpson et al., 2013). Unlike street crime, environmental crimes in the United States are generally treated as
regulatory violations, meaning they are investigated, prosecuted, and punished through a regulatory/political process rather than a standard
criminal justice approach. To understand how and why environmental crimes are handled in this manner in the United States and the
consequences for the deterrent value of this approach, it is important to briefly turn to how the regulatory system works and the historical
placement of environmental policy within that system.

States have additional leverage in environmental cases beyond the scope of the EPA
Lewis 20 - Morgan Lewis's team of more than 2,200 lawyers and specialists provide comprehensive corporate,
transactional, litigation, and regulatory services in major industries, including energy, financial services, healthcare,
life sciences, retail and ecommerce, sports, technology, and transportation. For more information about Morgan
Lewis or its practices, please visit us online at www.morganlewis.com. (“US Supreme Court Allows State Law
Restoration Claims Seeking Expanded Cleanup of Superfund Site.” JDSPURA. April 23, 2020. DOA: July 2, 2020.
https://www.jdsupra.com/legalnews/us-supreme-court-allows-state-law-32503/)//MGalian
The Supreme Court’s holding that CERCLA does not preempt state law restoration claims has the potential to create
uncertainty at Superfund sites around the country. It may also affect how CERCLA cases are resolved. One of the forces driving PRPs to settle
with EPA and agree to clean up Superfund sites is the contribution protection afforded by CERCLA Section 113. PRPs have understood that once
they settle with EPA, Section 113 protects them from future claims for the recovery of response costs. The possibility that a settling party may be
subject to future state law restoration claims threatens the finality that settling parties seek. The impact of the Supreme Court’s recognition of the
viability of state law restoration claims at Superfund sites may be blunted to some degree by the Court’s additional holding that PRPs must obtain
EPA approval for restoration actions. If EPA declines to approve restoration actions beyond the chosen remedial action at a Superfund site, PRPs
would be precluded from undertaking any additional restoration activities for which they could seek recovery from a settling PRP. It does not
appear that similar constraints will apply to landowners who are not PRPs because, e.g., they qualify as a “contiguous property owner” under
Section 107(q)(1)(A). The ultimate effects of the Supreme Court’s decision will be further fleshed out through subsequent decisions by EPA,
actions of PRPs at Superfund sites, and lower court rulings. The impacts may even vary by EPA region to the extent different regions take
different approaches to implementing the decision. The ongoing proceedings at the Anaconda Smelter Site may provide early insight into how the
decision works in practice, including the extent to which landowners’ desired remedial actions are approved by EPA. One issue that is likely to
further develop is when restoration actions are considered “inconsistent response actions” under Section 122(e)(6) of CERCLA. “Inconsistent”
could be interpreted broadly to preclude any response action that is any way “different” from EPA’s approved remedy, or narrowly to preclude
only those response actions that are “inharmonious” or otherwise fundamentally at odds with EPA’s approved remedy. Another important
defers to local community interests in selecting the EPA-approved remedial
development will be the degree to which EPA
claim that reaches beyond EPA’s chosen remedy —if EPA approves—
action. The potential ability to pursue a restoration
provides local residents additional leverage to pursue a more robust cleanup . Local residents may therefore
be able to exert additional influence on EPA’s remedy selection, even without pursuing their own restoration damages under state law.

States are best equipped for environmental reform- New York legislation proves
Periconi 09 - focuses on both litigation and regulatory matters. He has had substantial experience representing
clients both in governmental actions brought for remediation of Superfund and other contaminated sites and in
private cost recovery actions. Mr. Periconi has twice been appointed a federal court Special Master in Clean Water
Act cases and often acts as an expert witness in environmental law in federal and state actions, most recently in a
half-billion dollar environmental insurance coverage case. From 1987 through 1989, Mr. Periconi served as Chief of
the Solid and Hazardous Waste Enforcement Bureau of the New York State Department of Environmental
Conservation. During his tenure there, he oversaw the nation's largest and most complex state Superfund program.
(James, “The State of Environmental Crimes Prosecutions in New York.” Natural Resources & Environment,
Volume 23, Number 3, Winter 2009. DOA: June 20, 2020.
https://www.periconi.com/Articles/Environmental_Crimes.pdf)//MGalian
Most discussions about environmental crimes prosecution focus on environmental criminal enforcement in major, high-impact cases
that receive publicity. But there are certain types of environmental crimes that for a long time lent themselves much more to state
and local, rather than federal , investigatory and prosecutorial resources . Such crimes include illegal solid waste transfer stations;
red-bagged medical waste or chemically smelling, oily wastes found in a dumpster abandoned in a ham- let; and dry cleaners or furniture
strippers, where surreptitious discharges of perchloroethylene or other heavy, solvent-in- duced paint wastes into sewers. In such matters, a
passerby, an employee or ex-employee, or nearby resident might consider informing the state’s Department of
Environmental Conservation (or Environmental Protection) before calling the U.S. Environmental Protection Agency ( EPA ). This
article traces the development of environmental crimes litigation in New York State in the 1980s and analyzes the state of affairs in
environmental crimes prosecutionsat the state and local levels in New York State during the past few years. It demonstrates that
although New York continues to be aggressive in prosecuting cases at the federal level (see, e.g., U.S. v. Salvagno, 502 cr
051 2006 WL 2546477 (N.D. N.Y. Aug. 28, 2006)), there is a noticeable reduction in the number of environmental crime prosecutions, with jail
or prison time imposed rarely at the state level and in the majority of coun- ties. This article discusses manifestations and causes of the
decline in prosecutions at the state level and in the majority of New York’s counties from the political, administrative, and judicial perspectives.
New York has a long history of environmental crimes pros- ecutions. New York State law has long protected its air, water, and natural resources,
including wild birds, animals, and flow- ers, dating back to the 1890s with the statutory and constitutional “forever wild” protections given to the
6 million acre Adirondack Park, to the turn of the twentieth century with Teddy Roosevelt’s stewardship as governor (even before he declared, as
president, “conservation of our [natural] resources [to be] the fundamental question before this Nation.”) See Theodore Roosevelt, Seventh
Annual Address to Congress: The Conservation of Natural Resources (Dec. 3, 1907). The Storm King cases in the 1960s were the first modern
environmental litigation, where a special regard for the beauty and majesty of the Hudson River Valley had an extraordinary impact on the
development of environmental law. These cases (see, e.g., Sce- nic Hudson Preservation Conference v. Federal Power Commis- sion, 354 F.2d
608 (2d Cir. 1985)) arose from the Consolidated Edison Company’s (Con Edison’s) plans to build a pumped storage hydroelectric plant, which
was to be the largest of its kind in the world, at Storm King Mountain near Cornwall, New York, in the Hudson River Valley. This seventeen-
year legal dispute (1963–1981), resulting in the defeat of Con Edison’s plans, led to groundbreaking federal rulings about the importance of
integrating environmental concerns into major federal decision making and led to the long-lasting legal protection of the National Environmental
Policy Act. Practi- tioners will also not have forgotten that the discovery in the late 1970s of the devastation of Love Canal near Buffalo in
western New York led to development of a New York super- fund act in 1979 and a year later to the passage of the federal Superfund Act
(CERCLA). Given this background, it is not surprising that New York has long had a well-developed network of state and local investigatory and
prosecutorial resources, as well as ever- improving tools to prosecute environmental crimes. By the late 1970s,
New York had begun to develop a state criminal environmental statutory scheme for more “modern” environ- mental crimes—illegal possession,
transportation, and disposal of hazardous materials. New York has a long history of tradi- tional conservation regulation, with minor criminal
penalties attached to violations of fish and wildlife laws or laws proscrib- ing clear-cutting of forests. See ECL §§ 9-1105, 71-0924. By the mid-
1980s, in fact, New York had developed a full-fledged environmental criminal enforcement apparatus, including a healthy competition between
the state’s attorney general and local district attorneys. New York’s statutes, including prohibitions of, and crimi- nal sanctions for, hazardous
waste violations, for example, are found in articles 27 and 71 of the Environmental Conserva- tion Law (ECL). The definitions of hazardous
waste in New York are analogous, though not identical, to those defined in the Resource Conservation and Recovery Act (RCRA). Suc- cessful
criminal prosecutions of defendants whose discharges have exceeded numerical standards, as in the violation of hazardous waste laws, can be
difficult, given the requirement as in all criminal prosecutions of proof “beyond a reasonable doubt.” Any violation of article 27, title 9
(“Industrial Hazard- ous Waste Management”) of the ECL that is committed inten- tionally, knowingly, recklessly, or with criminal negligence is
a misdemeanor crime. Additional relevant provisions describe the dealing and possessions of hazardous waste, in varying degrees, depending on
quantity of weight, as felonies. A second generation of statutory tools was developed in 1986 to remedy the inadequacies of the earlier statutes
that had been limited mostly to RCRA “hazardous waste.” These statutes proscribed endangerment of the public health, safety, or the
environment by mishandling a far broader set of “haz- ardous substances,” parallel to CERCLA’s broad definition, but also eventually including
petroleum. EPA does not require states to follow its procedures in defining hazardous substances. Therefore, the New York State Department of
Environmental Conservation (NYSDEC) was free to develop a list of these substances on its own, and it did. New York’s hazardous substance
regulations are set forth in the New York Compilation of Codes, Rules and Regula- tions (N.Y.C.R.R.) at 6 N.Y.C.R.R. Part 371 and by the list of
hazardous substances enacted pursuant to ECL § 37-0103 set forth at 6 N.Y.C.R.R. Part 597.2. Prosecutions for violations of these statutes are
less complicated than those in the hazard- ous waste area, as a substance’s presence on the list, coupled with its mismanagement by an individual
with the requisite criminal intent, provides a strong foundation for proving the elements of the crime. The required levels of culpability for
violations of the hazardous substance statutes (ECL §§ 71- 2710 - 71-2714) for endangering the public health, safety, or the environment in the
fifth to the first degrees, respectively, are when a person acts with criminal negligence (more than the lesser of 5 gallons or 50 pounds of a
hazardous substance), with criminal negligence, with recklessness, with knowledge and with intent, involving any amount of a substance acutely
hazardous to public health, safety, or the environment.
INCARCERATION
 S
States are the preferable forum for addressing incarceration
Gohara 18 – Clinical Associate Professor of Law, Yale Law School (Miriam, “KEEP ON KEEPING ON: MAINTAINING MOMENTUM
FOR CRIMINAL JUSTICE REFORM DURING THE TRUMP ERA,” STANFORD JOURNAL OF CIVIL RIGHTS & CIVIL LIBERTIES,
Lexis)//BB

The building blocks of mass incarceration were laid by countless state and federal politicians, policymakers, prosecutors, and judges for the past
four decades.28 By the same token, unraveling mass incarceration will depend on state and local reforms. This is
because, of the approximately 2.2 million people incarcerated in American prisons and jails, two million
are serving time in state facilities, and only about 200,000 in federal penitentiaries .29 The good news for
progressives is that new initiatives have begun in many places, and federal policy will have little , if any, detrimental effect on
most state and local reforms .30 For example, starting in 2007, Texas enacted a series of bills that have
collectively reduced its incarceration rate by an estimated 20% and saved $4 billion.31 Texas’s crime rate has fallen by 30%
during the same period.32 In 2017, Louisiana, which voted for President Trump by 58% and has the highest incarceration rate in the world,
passed a bipartisan suite of bills aimed at reducing the state’s prison population by 10% and the parole and probation population by 12% over the
next decade.33 Louisiana’s new laws reclassify some felonies, increase judicial discretion in sentencing, reduce post-release supervision times for
some offenses, and ease collateral consequences on people released from prison.34 Pushback from Louisiana law enforcement groups curtailed
additional reforms that would have applied to more people convicted of violent crimes.35 The bills, which included some protections for crime
victims, nevertheless passed with bipartisan support and are expected to save the state $252 million over 10 years, 70% of which will be
reinvested in crime-prevention initiatives.36 In New Mexico and Oklahoma, Election Day 2016 also brought
progressive criminal justice reforms.37 New Mexico passed a constitutional amendment that no one may be jailed because of
inability to afford bail.38 Oklahomans, who voted for President Trump by 65.3%, at the same time voted to reduce prison sentences by
reclassifying certain offenses from felonies to misdemeanors as well as to establish a rehabilitation fund for mental health and drug abuse
treatment.39 In the past six years, Connecticut also has put into place several reforms aimed at reducing mass
incarceration. The state abolished the death penalty and legalized small amounts of marijuana. Moreover, it enacted “Second Chance”
legislation that eases the way for people convicted of nonviolent crimes to apply for pardons and parole and reduces penalties for drug
possession. Finally, new policies curbed the use of solitary confinement for juveniles in state prisons.40 During Governor Dannel Malloy’s
tenure, the number of men in Connecticut prisons has fallen by 20%, and the number of incarcerated women has fallen by 7%.41 At the same
time, the state has led the nation in declining violent crime, which went down by 20% from 2012 to 2016.42 These results from
multiple states, including states that went red in 2016, strongly suggest that people across the political
spectrum support commonsense initiatives to reduce jail and prison populations . In the past several years,
prosecutors’ elections have also signaled a strong local appetite for criminal justice reform. Voters in Corpus Christi, Houston, Orlando,
Philadelphia, Milwaukee, Chicago, and several other jurisdictions have elected prosecutors promising changes that will reduce the number of
people their offices send to prison.43 As candidates, they ran on platforms that included declining to prosecute minor offenses, channeling drug
offenders to rehabilitation programs, ending cash bail, and opting against capital prosecutions.44 These developments in the states
and counties, which are, after all, where
the vast majority of criminal justice is dispensed, prove that
momentum continues toward reforms designed to reduce the number of people in prison .45 As noted above,
Attorney General Sessions’s directives may very well have a serious impact on federal prosecutions and cause many thousands to spend more
time in prison than they would have if his predecessors’ policies were still in place. That is certainly cause for serious concern. At the same time,
it is critical to keep sight of the strong signals that voters are sending to their local elected officials to
resist policies contributing to over-incarceration . Voters are also maintaining the pressure on members of Congress, many of
whom are taking notice. As noted, supra, in 2017, bipartisan senators and members of the House introduced the Sentencing Reform and
Corrections Act and the Smarter Sentencing Act, which proposed to increase judicial discretion, expand the use of probation, expand funding for
community policing and crime-reduction initiatives, and reduce mandatory minimums.46 Progressives should remain clear-eyed
about challenges posed by the federal executive while rewarding local officials who implement a reformist agenda,
replicating those agendas by organizing around them, and supporting those who build upon them in other parts of the country.

The counterplan directly addresses a much larger prison population than starting with the
federal government
Edelman 17 - Washington Monthly contributing editor, is a politics writer for WIRED. He was formerly executive editor of the Monthly.
His writing has also appeared in the New Yorker, Slate, and the Washington Post (Gilad, “All Criminal Justice Reform Is Local,” Washington
Monthly, https://washingtonmonthly.com/magazine/januaryfebruary-2017/all-criminal-justice-reform-is-local/)//BB

While criminal justice reform has recently become a surprisingly bipartisan issue, the election of Donald Trump—who plans to appoint as chief
law enforcement officer Alabama Senator Jeff Sessions, who was blocked from a federal judgeship in the 1980s for, basically, being too racist—
looks like a major setback. A BuzzFeed article published in the week after the election captured this feeling with the headline
“The Election Might Have Killed Criminal Justice Reform .” Hardly . It’s true that the election spells the
demise of the bipartisan criminal justice Senate bill, and a Sessions-led Department of Justice could be
disastrous in many ways. But the election of Donald Trump may end up having very little effect on mass
incarceration. The federal government just doesn’t have much power over prison populations: the vast
majority of incarcerated people are locked in state, not federal, prisons, for violating state , not federal,
laws . This goes against the instinct of many Americans that all policy emanates from Washington . Indeed,
when it comes to crime policy, many instincts—even among people who care—turn out to be wrong . As
John Pfaff, a law professor and economist at Fordham University, puts it in an important new book, Locked In: The True Causes of Mass
Incarceration and How to Achieve Real Reform, liberals have been telling and retelling a “Standard Story” about the causes of incarceration: the
war on drugs, private prisons, and harsher sentences. But when Pfaff looked at the data, he found that the Standard Story was wrong. Start with
the war on drugs. The most tenacious progressive myth about American prison growth is the idea that our prisons are packed with nonviolent
drug offenders. Thus Michelle Alexander, whose 2010 book The New Jim Crow did more than any other to raise awareness of mass
incarceration, could write, “the uncomfortable reality is that arrests and convictions for drug offenses—not violent crime—have propelled mass
incarceration.” President Obama illustrated the myth’s staying power in a speech last year, when he said, “Over the last few decades, we’ve also
locked up more and more nonviolent drug offenders than ever before, for longer than ever before. And that is the real reason our prison
population is so high.” In fact, while drug convictions account for about half of federal prisoners, they represent only 16 percent of the state
prison population, which is six times as large. More than half of state inmates are imprisoned for violent offenses, and from 1980 to 2009,
convictions for violent crimes contributed to 60 percent of the growth in the state prison population. (It’s conceivable that the war on drugs
indirectly fueled the rise in imprisonment for violent offenses, but Pfaff, looking at the data, finds it unlikely. One reason: illegal drug sales are
not a precondition for urban gang violence.)

States solve over-incarceration

Eisen ‘20
(Lauren-Brooke Eisen is director of the Brennan Center’s Justice Program where she leads the organization’s work to end mass incarceration
before joining the Brennan Center, Eisen was a senior program associate at the Vera Institute of Justice, where she worked on the sentencing and
corrections team to implement policies in multiple states to improve public safety while reducing prison populations. She also previously served
as an assistant district attorney in New York City, where she worked in the Appeals Bureau, the Criminal Court Bureau, and the Sex Crimes
Special Victims Bureau. Before entering law school, Eisen worked as a beat reporter for a daily newspaper in Laredo, Texas, covering criminal
justice and immigration. Eisen holds an AB from Princeton University and a JD from the Georgetown University Law Center. “ Criminal
Justice Reform at the State Level ” 1/2/20. https://www.brennancenter.org/our-work/research-reports/criminal-justice-
reform-state-level)$

The criminal justice system in America is complex, made up of county courts and jails, state courts and
prisons, and a federal justice system with its own courts, judges, and prisons. Reducing mass
incarceration means working across this tangled web. Despite the attention that the federal system gets,
most Americans encounter the justice system at the county and state level . In fact, most incarcerated
people in America are held in state and county facilities. That is why state reform efforts are so important.
The staggering number of people behind bars in America Today, some 2.2 million people are incarcerated in county jails and state and federal prisons, giving the United States the largest prison population in the world. Many
factors building over decades got us here. Since the late 1960s, the government has spent billions of dollars funding crime prevention in the United States that was focused more on policing and punishment than on addressing the root
causes of crime. States also enacted a series of laws that dramatically lengthened sentences for many crimes and created entirely new ones. In particular, mandatory minimum sentencing and truth-in-sentencing provisions required
individuals to serve longer periods of time behind bars, contributing to the explosion in the nation’s prison population. The criminal justice system encompasses more than 1,700 state prisons, 100 federal prisons, 1,700 juvenile
correctional facilities, 3,100 local jails, and 80 jails on Native American reservations, as well as other facilities like military prisons. These figures underscore an important point: it is impossible to end mass incarceration by focusing

boom State laws contributed to mass incarceration, and

on just one aspect of this sprawling system. Harsher state criminal laws, followed by the prison-building

those laws must change to end it . Federal crimes cover a relatively narrow range of conduct , such as
drug offenses. State laws, on the other hand, cover crimes that are more recognizable to the average
citizen, like drunk driving, shoplifting, and homicide. It’s no surprise, then, that state courts handle many
more cases than federal courts. As crime rose in the 1970s and 1980s, lawmakers at the state and federal
level enacted more draconian laws that ensnared more people in the criminal justice system. In 1973,
legislators in New York passed the so-called Rockefeller drug laws, which imposed mandatory minimum 15-year terms for possession of marijuana
and other drugs. Michigan and other states quickly enacted similar laws. Continuing this trend, Washington State in 1984 adopted the nation’s first “truth-in-sentencing” law, which required people to serve at least 85 percent of their

. In a domino effect across the country, 27 other states imposed similar requirements.
sentences before becoming eligible for parole

Although violent crime in America peaked in 1991, and crime today remains at historic lows, our nation’s punitive responses to
crime resulted in a prison building spree throughout the 1990s. According to the Congressional Research Service, in the mid-1990s, at the peak of the prison construction boom, a new prison opened every 15 days on average.

Prosecutors and the vanishing criminal trial As the United States continued to build prisons, another trend
emerged: the gradual disappearance of the jury trial and its replacement with plea bargaining, to the
detriment of defendants’ rights. About 94 percent of criminal cases at the state level are resolved through
plea bargaining. This trend increases the already vast discretion wielded by local prosecutors, who handle more than 95 percent of America’s criminal cases. Prosecutors enjoy unique authority to make decisions
about what to charge someone with, making deals with witnesses, and negotiating pleas — and they frequently dictate sentences or sentencing ranges. As a result, they have gained greater leverage to extract guilty pleas from
defendants and reduce the number of cases that go to trial, often by using the threat of more serious charges with mandatory minimum sentences or other harsh penalties. In fact, fewer than 1 in 40 felony cases results in a trial,
according to data from 9 states that have published their records since the 1970s, when the ratio was closer to 1 in 12. As New York University Law and Sociology Professor David Garland recently wrote, “The move away from
rehabilitation, the spread of mandatory penalties, the creation of new categories of crimes, and the priority given to public safety over offenders’ rights — these all increased prosecutors’ leverage and incentivized them to use it
 State prosecutors often seek higher sentences against people who exercise their right to trial —
aggressively.”

something known as “the trial penalty” or the “trial tax. ” Historically, bringing the maximum possible
charges has persuaded defendants to plead guilty instead of going to trial. This practice emerged to
prioritize resources when courts across the country were overburdened lacked the resources to take every
case to trial. Yet, as the late legal scholar William Stuntz noted in The Collapse of American Criminal Justice, “The law of guilty pleas made such pleas easy for prosecutors to extract, which allowed the justice system to
increase dramatically the ratio of convicted felons to prosecutors and defense lawyers.” As Stuntz also explained, “Guilty pleas and the quick bargains that precede them have become the system’s primary means of judging criminal

According to 2017 figures from the Justice

defendants’ guilt or innocence.” County jail systems Many of those incarcerated have yet to even be convicted of a crime.

Department, about 482,000 people in jail were “awaiting court action on a current charge ,” and about
260,000 people were convicted of violating a law. Jails are run by local governments, often managed by a
sheriff’s department, and they operate independently from other jails in the same state. Jail populations typically consist of those who are being held on bail or bond pending trial and individuals who are
serving out short sentences of less than a year. On any given day, about 612,000 people are behind bars in county jails. But that number doesn’t reflect the roughly 10.6 million instances of people cycling through jails each year. These

are not all separate individuals, as it includes some people who have been rearrested, sometimes many times in one single year. State prison systems State prisons today hold about 1.3
million people, representing the biggest chunk of those who are behind bars in America. They typically
house people convicted of felonies, which in most states are crimes that carry a sentence of one year or
more. According to Justice Department statistics, more than half of those in state prisons are serving sentences for violent crimes: approximately 14 percent were serving time in state prison for murder or non-negligent
manslaughter, and about 13 percent of state prisoners were sentenced for rape or sexual assault. As opposed to the federal population, where nearly half of the prison population is incarcerated for a drug

offense, only about 15 percent were convicted of a drug offense. Minor violations Many state prison
admissions result from violations of probation or parole conditions . In fact, in 2017, the states of Washington, Idaho, Vermont, Utah, Maine, New
Hampshire, and Pennsylvania admitted more than half of their prisoners for probation or parole violations. Overall, one-third of state prisoners admitted to prison in 2017 entered on a “new commitment” on such a violation, compared
with only 10 percent in the federal system. These re-incarcerations are often for minor violations, such as failing a drug test or not completing a drug or other required program. States could make a huge dent in the prison population
by passing reforms to ensure people are not sent back to prison for minor violations of conditions of probation such as not attending a hearing.
 S – juvenile sentencing
Court precedent in Miller is the basis and means no federal circumvention.
Greenlee 15 [Jordon Calvert Greenlee, J.D. Candidate, University of Minnesota Law School. 2015. “Victims of Youth:
Equitable Sentencing Reform for Juvenile Offenders int he Wake of Miller v. Alabama and Jackson v. Hobbs.” University of
Minnesota Libraries. https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1226&context=lawineq] azi
III. Proposed Statutory Reform
The Court's decisions in Roper, Graham, and Miller were monumental in several respects, most notably because they
restored "principles of rehabilitationism to a system that, over the last [twenty] years, has come almost
entirely unmoored from its ideological foundations."1 ' First, in Roper and Graham, the Court relied on
developmental research to conclude "policymakers may be heading in the wrong direction with juvenile
court policy" by failing to account for attributes specific to youth. 11 2 The Court recognized the impact of an
individual's cognitive capacity specifically the impact of "logical reasoning and the ability to identify and
weigh competing alternatives"-and degree of psychological development -on an individual's "social, emotional, and temporal
perceptions and judgments."1 3 In identifying the cognitive and psychological attributes that motivate and guide adolescents, as compared to their adult counterparts,
the Court determined juveniles lack a level of maturity and comprehension that allow them to weigh the
consequences of their actions fully."4 Reaffirmed in Miller, the Court's rationale "treats youth as a
mitigating factor and supports a rehabilitative response to juvenile crime." "11 Consequently, the Court instructed
state legislatures and courts to adhere to "[theories of diminished culpability and rehabilitative potential"
when developing and enforcing sentencing statutes for juveniles. 6
While the Court left states to determine how Miller should be applied to statutory sentencing reform , it did
demand nationwide uniformity by barring mandatory penalties which, "by their nature, preclude a sentencer from taking account of an offender's age and the wealth of
characteristics and circumstances attendant to it." 7 To
properly apply this standard, state legislatures should (1) abolish life-
without-parole sentences for juvenile offenders entirely; (2) require courts to examine a comprehensive
list of mitigating factors specific to each offender; (3) provide offenders a meaningful opportunity for
release through continued review by parole entities; and (4) retroactively apply Miller to juvenile
offenders convicted prior to the Court's holding.
A. Eliminate Life-Without-Parole Sentences for Juvenile Offenders
Abolishing life-without-parole sentences would adhere with the spirit of Miller and empirical research
connecting reduced culpability to the age of the offender. 18 The Court stated it is inherently difficult to
distinguish between "the juvenile offender whose crime reflects unfortunate yet transient immaturity, and
the rare juvenile offender whose crime reflects irreparable corruption." ' To avoid release of offenders who are incapable of
reform or remorse, it is reasonable for states to retain a sentence that allows for courts to assess the character and
development of the offender over time.
Roper, Graham, and Miller "emphasized that the distinctive attributes of youth diminish the penological
justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible
crimes.1 20 By leaving discretionary life-without-parole sentences on the table, legislatures retain sentences that fail to account for transitory characteristics of
youth. Advocates for life-without-parole sentences may contend that life sentences combat the risk of releasing an "irretrievably depraved" offender. 121 However, the
parole process inherently combats this argument, as courts can evaluate the development, or lack thereof, of an offender and determine if they should remain
incarcerated. 122 Moreover, imposing a life-without-parole sentence on a juvenile who is capable of rehabilitation is the exact type of sentencing flaw the Court
attempts to remedy in Miller.123
B. Include Examination of Mitigating Circumstances and Meaningful Opportunity for Rehabilitation and Release
When stipulating mitigating circumstances that may be presented and considered in sentencing, legislatures should
develop a broad and
expansive list of factors that envelope the cognitive capacity of the offender alongside a depiction of the
offender's formative years.12 4 As articulated by the Court in Graham and Miller, factors that should be considered include,
but are not limited to:
 The juvenile's age and its features, including immaturity, impetuosity and failure to appreciate risks
and consequences, at the time of the offense; 12 1
 The juvenile's intellectual capacity and development, including educational history ;127
 The juvenile's family and home environment;1 28
 The circumstances of the offense, including the extent of the juvenile's level of participation and
the impact of familial and peer pressures in the commission of the crime;129
 The juvenile's inability to function in the criminal justice system that is designed for adult offenders; 30 and
  The possibility
of rehabilitation.
Furthermore, states
should grant juvenile offenders a meaningful opportunity for review and potential release
after serving a specified number of years. Review opportunities should evaluate the juvenile's
participation in rehabilitative and educational programs while incarcerated, as well as their present threat to the
community. Finally, any juvenile offender denied release should be granted continued review every five years.
Individualized sentencing does not restrict courts from incarcerating juvenile offenders who fail to exhibit a substantial level of rehabilitation and remorse. When a
juvenile offender is initially sentenced, or eligible for parole or sentence modification, courts should have the capacity to examine the cognitive development of the
offender and efforts towards rehabilitation. As juvenile offenders age, courts can more effectively examine their characteristics and "evidence of irretrievable
depravity" that may be indicative of an offender who should remain incarcerated. 1 2 For example, California's
sentencing scheme requires
courts to hold a hearing to determine whether the offender has displayed efforts towards rehab ilitation and
remorse, eliminated ties with individuals involved in crime, and remained in exemplary disciplinary
standing. 133 California also calls for recurring opportunities for parole during the fifteenth, twentieth, and
twenty-fifth year of incarceration if the offender received a sentence that is twenty-five years to life.134 Sentencing schemes that do not account for
mental and emotional development fail to follow Miller's mandate-that courts must account for mitigating circumstances attributed to youth and grant juvenile
offenders a meaningful opportunity for release. This means allowing
for continued evaluation of juvenile offenders through
individualized sentences that can be re-examined over time.
C. Apply Miller Retroactively
Following the Court's holding in Miller, both Evan Miller and Kuntrell Jackson's sentences were invalidated and remanded to state court for resentencing1 When
Miller was decided, Evan Miller's case was on direct review and Kuntrell Jackson's case was on collateral review.136 In the past, the Court
has held that
when it applies a new rule of constitutional law to the defendant in the case announcing the new rule,
"even-handed justice" requires that the rule apply retroactively to all similar cases . While the application and limits of
retroactivity is beyond the scope of this Comment, it is important to note that the Court's holding distinctly reversed the decisions of both the Alabama and Arkansas
Supreme Courts and ordered that both Evan Miller and Kuntrell Jackson be granted relief through resentencing.1 3 8 Moreover, the Court effectively made the ban on
mandatory life without parole for juvenile offenders applicable to all similarly situated defendants.13" 9 Based
on this line of precedent, state
legislatures and courts should similarly allow pre-Miller offenders to seek resentencing.
IV. Conclusion
Following the Court's holding in Miller, we have seen a nationwide trend toward more lenient sentencing schemes for youthful offenders. However, while
some
state legislatures have adopted new sentencing statutes that closely adhere to the Court's reasoning in
Miller, other states have retained harsh sentencing for juveniles without creating significant opportunities for review or release.
To avoid despotic sentencing schemes, states should follow the recent shift in juvenile justice reform by
creating sentencing procedures that require individualized assessment based on a list of comprehensive,
mitigating factors.140 By creating an exhaustive sentencing process that looks at the characteristics of the defendant, alongside
other extenuating elements, courts can more effectively determine the proper sentence duration for juvenile
offenders.
While arguably progressive in its application, adoption of a sentencing scheme that (1) abolishes life-without-parole
sentences for juvenile offenders entirely, (2) requires that courts examine a comprehensive list of
mitigating factors specific to each offender, (3) provides offenders a meaningful opportunity through
continued review by parole entities, and (4) retroactively applies Miller to juvenile offenders convicted
prior to the Court's holding, will allow for the most equitable sentencing for youthful offenders . This level of
sentencing review grants defendants the ability to demonstrate their individual level of culpability and capacity for change. In effect, juvenile offenders will be
permitted a fair opportunity to be sentenced to serve a period of time equal to their own guilt.

Tallahassee shows state ability to reform juvenile sentencing.

Funcheon 19 [Deirdra Funcheon, news reporter for Florida Bulldog. March 6 2019. “As Florida jails more kids than any
other state, criminal justice reform is again on the table in Tallahassee .” Florida Bulldog.
https://www.floridabulldog.org/2019/03/as-florida-jails-more-kids-than-any-other-state-reform-table-tallahassee/] azi

Reformers’ goals can be divided into three categories: having fewer children incarcerated, dismantling harsh
sentencing laws and steering lawbreakers toward job or rehabilitation programs instead of prison.
Keeping youth out of jails
In Florida, prosecutors have a lot of power when a minor is charged with a crime, thanks to prosecutorial discretion or
direct file.
Currently, it’s mandatory that defendants aged 16 or 17 are transferred to adult courts for any charge considered a forcible offense (murder, manslaughter, sexual
battery, etc.) or if the minor has committed three felonies in 45 days.
In other instances, prosecutors use discretionary direct file, meaning they can bring the charges in adult court if they so choose. The youth has no chance to dispute the
decision or have it reviewed by a judge. Juveniles can also end up in adult court if they waive juvenile court or if a grand jury indicts them — but 98 percent of the
time, they are there because of the prosecutor’s decision.
According to the American Civil Liberties Union, Florida prosecutes more children in adult courts than any other state in the country — more than 7,600 minors since
2011, most for nonviolent offenses.
“These kids are even as young as — check this out — 10 years old,” said Bush, who has filed a bill to modify the process.
Scott McCoy, senior policy counsel in Florida for the Southern Poverty Law Center, said efforts to reform direct file failed in the past in part because the bills
proposed too many changes in a single bill.
This time, proposed reforms have been broken up into three different bills:
Bush’s HB 575, which has a companion bill, SB 876, in the Senate, would allow a child to have an
evidentiary hearing. “This creates a chance for kid in front of an adult court to say, ‘I’m not terrible! Here are my facts and circumstances. Send me back to
juvenile court and and deal with me there.’ That is the main bill I would like to see passed,” McCoy said.
ACLU of Florida spokesperson Gaby Guadelupe said that
bill is also top priority for the ACLU.
“98% of these kids are transferred to the adult court on the sole, unreviewable, completely discretionary
decision of the state prosecutor,” she said. “Not only does this have counterproductive results for the youth
and society, it flies in the face of American values of due process. State attorneys are the primary
opposition to this movement.”
Guadalupe also pointed out that the federal Juvenile Justice and Delinquency Prevention Act (JJDPA), which was reauthorized in December 2018 for the first time in
nearly 16 years, closed a loophole that had allowed juveniles facing adult charges to be housed in adult jails while they awaited trial. The new federal rules mean that
“Florida law requiring these kids be held in jails will have to be addressed,” Guadalupe said.
SB 870 would keep kids out of adult facilities while they are awaiting trial. SB 850/HB 339 would “raise
the floor” on prosecuting very young kids, McCoy said.
“That bill makes 14- and 15-year-olds ineligible for direct file ,” he said. “And for 16- and 17-year-olds, it
limits it to violent felonies rather than any felony and eliminates mandatory direct file. ” And it specifies that
“if a kid is younger than 14, you can’t indict him .”
The SPLC has joined with more than two dozen other groups to create a coalition called “No Place for a
Child” and lobby for these reforms. The organizations include ACLU of Florida, Florida Council of
Churches and the Florida Public Defender Association. They will be coordinating a lobbying day in Tallahassee March 13.
Bush, a retired teacher who at age 13 attended Martin Luther King Jr.’s funeral, sees the matter as a civil rights issue. The current system is biased against kids of
color.
“Seventy-six percent of youth charged as adults are black,” he said. For comparison, just over 20 percent of Miami-Dade’s schoolchildren are black. Of the inherent
disparity in numbers, he said, “It is un-American. It is criminal.”
Another bill would allow judges to consider anyone under 21 who commits a felony a “youthful offender.” And HB 755 would prohibit youth from being placed in
solitary confinement.
Undoing tough sentencing measures
Modeled after the federal First Step Act that passed in December, the
Florida First Step Act (SB 642) would affect adults. Introduced
by Republican Sen. Jeff Brandes of Pinellas County, who is vice chair of the criminal justice committee, it
would give judges discretion to
divert people from mandatory minimum sentences in nonviolent drug offenses. It would also house
inmates in facilities within 150 miles from their homes and slice 60 days off sentences for offenders who
take on coursework or learn a trade.
“These are best practices from around the country,” Brandes told the Capitol News Service.
With 24 percent of state inmates over age 50 and health care eating up nearly 20 percent of the budget of the Department of Corrections, Brandes’ proposal calls for
“conditional medical release” and would allow inmates to be released early if they are sick and have little chance of reoffending.
However, Gov. Ron DeSantis, a former prosecutor, told the Capitol News Service he’s hesitant to pass it at the state level even though he voted for the federal version
of the legislation when he was a U.S. congressman.
“The character of the crimes are a lot different. I mean, the federal tends to be drug trafficking, there’s a lot of white collar. The state, you have a lot more violent
crimes,” DeSantis said.
Similarly, HB
607 would expand eligibility for conditional medical release to include inmates with
debilitating illnesses. HB 963 would give probation officers leeway in penalizing people for technical
probation violations. And HB 919 provides for community courts to address misdemeanors.
Rehabilitate instead of punish
The Florida Campaign for Criminal Justice Reform is pushing SB 734, which would remove driver
license suspensions as punishment for certain offenses , such as failure to pay court fees, drug-related offenses or misdemeanor theft,
which for minors includes vandalism, truancy and tobacco-related offenses).
It’s also pushing SB 394 and HB 667, companion bills that would limit the number and types of
convictions that can affect occupational licensure, as about 30 percent of Florida jobs require some kind
of licensing.
Another bill, HB 953, would require the Department of Corrections to provide more transition specialists and
employment specialists.
Other bills up for consideration this session include the “Dignity for Incarcerated Women Act,” a state version of a popular federal initiative that would provide
female inmates with hygiene products and prohibit men from doing pat-downs or body cavity searches of them. Another bill would raise the
threshold for felony theft charges, from $300 to $1000.
Banning LWOP proves.
Marston 18 [John Colin Marston, staff of CS monitor. December 10 2018. “Why more states are giving juvenile offenders a
second chance.” CS Monitor. https://www.csmonitor.com/World/Progress-Watch/2018/1210/Why-more-states-are-giving-
juvenile-offenders-a-second-chance] azi

Before 2012, only a handful of states did not use guidelines for mandatory life sentences without parole.
Today not only are the mandatory sentences gone, 21 states and the District of Columbia prohibit judges
from sentencing any juveniles to life without parole – most recently in Washington State, whose Supreme
Court found that the sentence violated the state’s constitution in October.
The shift comes at a time of movement away from incarceration in the juvenile justice system toward second chances, as more is learned about how young minds
develop until age 25. In the process, some
states are moving toward newer forms of accountability, such as offering
more opportunities for mediation between a victim and a perpetrator.
“We’ve made incarceration such a normal thing in this country that sending a young person away for any period of time, especially kids of color, wasn’t considered an
unusual thing,” says Marc Schindler, executive director of the Justice Policy Institute in Washington. “[W]hat
we’ve seen recently is a swing
in juvenile courts from a punitive approach to more treatment. ”
One of the first states to heavily invest in “community-based alternatives” was Missouri. About 30 years ago, the
state started replacing youth prisons with a continuum of care, from treatment centers to secure residential
facilities in Missouri’s state parks. Since 2013, it has reported a steadily declining rate of commitments
and recommitments; overall, Missouri has one of the lowest youth recidivism rates in the country.
There’s also a push nationwide for young adults to have more access to therapeutic social services. Connecticut, South Carolina, and the
District of Columbia are all pioneering forms of treatment for those between the ages of 18 and 24 in
adult prisons.
While broad changes are shifting the juvenile justice system toward rehabilitation, and Congress may be looking at the first real criminal justice reform in a generation
with the First Step Act, many
states that once gave mandatory life sentences to youth are now using de facto life
sentences of 40 to 60 years. The courts have yet to take up the constitutionality of those sentences.
 S – juvenile – state examples
Multiple states prove its possible ---
1) Oregon
Ellis 19 [Rebecca Ellis, news reporter. July 22 2019. "Oregon Gov. Kate Brown Signs Major Juvenile Sentencing Reform
Bill." OPB. https://www.opb.org/news/article/oregon-juvenile-sentencing-reform-bill-signing/] azi
Oregon Gov. Kate Brown signed legislation Monday to alter sentencing requirements for young
offenders, which advocates are calling the most significant reform to hit the state’s juvenile justice system in a
quarter-century.
The law reverses tough-on-crime sentencing rules adopted in 1994. It means a judge will be able to decide if
a juvenile 15 years of age and older should be tried as an adult for serious crimes like murder and
kidnapping. Young offenders will also be eligible for a parole hearing after serving half their sentence.
Similar legislation has been in the pipeline for at least a decade. State Rep. Jennifer Williamson, D-Portland, who carried the bill on the House floor, says lawmakers
tried and failed to push through juvenile sentencing reform in 2013.
They succeeded this year, Williamson says, in large part due to state Sen. Jackie Winters, R-Salem, who was able to rally Republican support for the measure.
Winters died in May after a two-year-long battle with lung cancer. Her death came one week after the legislature passed the sentencing reform bill.
“We are here today because of one Republican,” says Williamson. “Jackie Winters is why we’re standing here.”
Monday’s bill signing served as an opportunity for legislators and advocates to honor the work of the veteran lawmaker, remembered by her colleagues as an
impassioned champion for criminal justice reform.
Changing the way sentencing works for young offenders, Williamson says, was Winters’ “last official act.”
In a teary speech, Winters’ daughter-in-law and chief-of staff Pam McClain says that this bill was one of the few items that remained on Winters’ legislative bucket
list at age 82.
“She wanted that second look for juveniles, she wanted to make sure we gave them hope ,” she says. “And she wanted to
make sure that we understood that we were creating our next neighbors.”
Monday’s bill signing almost did not happen — at least not in a community center in North Portland with more than 50 community activists and stakeholders looking
on. Brown said, when the bill passed in May, she “immediately emailed Mrs. Winters to let her know I would literally bring the original bill to her and sign it in her
presence.”
Winters declined to have the bill signed by her bedside, stressing that the event should be witnessed by voters.
“The email I got back was: ‘’This was very much a public process,’” Brown recalls. “And she wanted everyone to be part of this bill singing.”

2) Hawaii
Shoenberg 19 [Dana Shoenberg, Senior Manager Public Safety Performance Project. “How State Reform Efforts Are
Transforming Juvenile Justice.” November 26 2019. Pew Research. https://www.pewtrusts.org/en/research-and-
analysis/articles/2019/11/26/how-state-reform-efforts-are-transforming-juvenile-justice] azi
Hawaii
In 2013, the Hawaii Juvenile Justice Working Group found that taxpayers were spending about $200,000 per confined
juvenile at the Hawaii Youth Correctional Facility, but the state still struggled to control recidivism .5 Three
out of 4 juveniles released from custody were adjudicated as delinquent again or convicted of new crimes as adults within three years of their release.6 The state
Legislature approved the working group’s recommendations to reduce the use of secure confinement,
increase proven community-based options, and strengthen probation supervision and unanimously passed
House Bill 2490, which then-Governor Neil Abercrombie (D) signed into law July 2, 2014. Since 2013,
Hawaii has seen a 66 percent reduction in the number of young people sent each year to the state’s secure
youth correctional facility.7 (See Figure 3.)

3) South Dakota
Shoenberg 19 [Dana Shoenberg, Senior Manager Public Safety Performance Project. “How State Reform Efforts Are
Transforming Juvenile Justice.” November 26 2019. Pew Research. https://www.pewtrusts.org/en/research-and-
analysis/articles/2019/11/26/how-state-reform-efforts-are-transforming-juvenile-justice] azi
South Dakota
On March 13, 2015, Governor Dennis Daugaard (R) signed into law comprehensive reform legislation based on
policy recommendations from the bipartisan, interbranch Juvenile Justice Reinvestment Initiative Work Group. The legislation, S.B. 73, provides
incentives to counties to make diversion from formal system processing the default response for many
lower-level offenses, prioritize use of residential facilities for youth who pose a public safety risk, align
probation with evidence-based practices, and reinvest resulting savings into community intervention
programs.
Three years after implementation of the reforms, the total number of youth committed to South Dakota
Department of Corrections custody and aftercare supervision declined 63 percent .3 This reduction was
consistent with state policymakers’ stated goals of prioritizing out-of-home placement for youth who pose
a public safety risk, expanding evidence-based community alternatives, improving outcomes, and
increasing accountability for youth in the juvenile justice system. Between 2014 and 2018, the rate of probation
completion increased from 85 to 95 percent (see Figure 2), and filings for supervision violations dropped by 43
percent.4

4) Kansas
Shoenberg 19 [Dana Shoenberg, Senior Manager Public Safety Performance Project. “How State Reform Efforts Are
Transforming Juvenile Justice.” November 26 2019. Pew Research. https://www.pewtrusts.org/en/research-and-
analysis/articles/2019/11/26/how-state-reform-efforts-are-transforming-juvenile-justice] azi
Kansas
Following recommendations from a statewide working group, Kansas enacted broad reforms to its juvenile justice system in
2016, which included changes such as reduction of court referrals, increased diversion, and limitations on
transfers to adult court. The measures, passed with strong bipartisan support as Senate Bill 367, establish consistent statewide
standards to reduce disparate outcomes, prohibit out-of-home placement for youth with less serious
offense histories and risk profiles, prioritize the most expensive system resources for the highest-risk
young people, and shift significant funding toward evidence-based alternatives that allow youth to be
safely supervised while remaining at home.
Within two years of passing the legislation, Kansas’ total juvenile out-of-home population had decreased
63 percent—including reductions in youth sent to detention facilities, group homes, and secure correctional facilities—and arrest rates, which had already been
falling before reform, continued to decline.1 The resulting savings—which total $30 million to date—are deposited in a dedicated fund that state officials can use to
expand evidence-based services for youth living at home.2 (See Figure 1.) The reductions in residential placements have already surpassed those projected when the
legislation was enacted, and the reforms are well on their way to delivering the expected $72 million in savings for
reinvestment by 2022.

5) Twenty-three states including Virginia have done it.

EJI 20 [Equal Justice Initiative. February 25 2020. “Virginia Abolishes Life Without Parole for Children.”
https://eji.org/news/virginia-abolishes-life-without-parole-for-children/] azi
Virginia Governor Ralph Northam signed into law Monday a bill providing parole eligibility after 20 years in
prison to people who were under 18 at the time of the offense. The new law effectively abolishes life-
without-parole sentences for children, in recognition of their greater capacity for rehabilitation.
House Bill 35 passed the state Senate last week after passing the House last month. Its signing by the governor
makes Virginia the 23rd state to ban sentencing children to die in prison , according to the Campaign for the Fair
Sentencing of Youth.
The bill will impact more than 700 people currently incarcerated in Virginia who were sentenced in adult
court for crimes when they were children, according to a legislative analysis.
The new law provides parole review not only for youth offenders sentenced to life imprisonment but also
for those with “active sentences that total more than 20 years.”
SUE THE USFG
 1nc
The 50 states should file a joint federal lawsuit against federal ____.
Suing the federal government solves---forces relevant actors to capitulate
Lin 18 - Partner, Hunton & Williams L.L.P. Solicitor General of West Virginia, 2013–2017 (Elbert, “STATES SUING THE FEDERAL
GOVERNMENT: PROTECTING LIBERTY OR PLAYING POLITICS?,” https://lawreview.richmond.edu/files/2018/04/Lin-523.pdf)//BB

It has become increasingly common in recent years to scan the news and find that a state or group of states has sued
the federal government. During the eight years of the Obama Administration, states led mostly by Republican attorneys
general challenged federal action on matters ranging from health care to immigration to the environment
to overtime pay. And during just the first year of the Trump Administration, states led by Democratic attorneys general
have brought suits in many of those same areas and others , including federal student loan relief and regulation of the
internet. Many of these state-led lawsuits have put the brakes on federal executive actions . Though some of the
cases have challenged alleged congressional overreach in federal statutes—most notably the Affordable Care Act (“ACA”)1— the
overwhelming majority have challenged actions by federal agencies or the President himself . And many
have been successful . In February 2016, West Virginia’s multistate action against the signature climate-change rule of the Obama
Administration Environmental Protection Agency (“EPA”) resulted in a United States Supreme Court stay of the rule that, for all practical
purposes, made possible the Trump Administration EPA’s current efforts to repeal that rule.2 Two years later, Washington State’s lawsuit
challenging President Trump’s Executive Order 13769 (sometimes called the “Travel Ban”) succeeded in blocking the enforcement of significant
parts of the Order3 and caused the Trump Administration to issue a revised Executive Order.4
 S – signal
Lawsuits solve signaling and publicity
Schapiro 12 - Professor of Law and Director, Center on Federalism and Intersystemic Governance, Emory University School of Law
(Robert, “Judicial Federalism and the Challenges of State Constitutional Contestation,” Penn State Law Review,
http://www.pennstatelawreview.org/115/4/115%20Penn%20St.%20L.%20Rev.%20983.pdf)//BB

State lawsuits against the federal government stand at the intersection of several recent trends in federalism
scholarship. Scholars have emphasized the dynamic and conflictual nature of federalism, stressing the importance of states as
sources of alternative visions of governance.140 These conceptions of federalism highlight the overlapping and competitive
nature of federal and state jurisdiction. Litigation offers a very public and formal mechanism for crystallizing the
disputes between states and the federal government . The court room served as an important forum for Massachusetts and
Virginia to declare their fundamental opposition to federal policies.
 AT pdb
State litigation is key to democracy---only the counterplan solves because the net-benefit
requires tension with the FG’s position
Lin 18 - Partner, Hunton & Williams L.L.P. Solicitor General of West Virginia, 2013–2017 (Elbert, “STATES SUING THE FEDERAL
GOVERNMENT: PROTECTING LIBERTY OR PLAYING POLITICS?,” https://lawreview.richmond.edu/files/2018/04/Lin-523.pdf)//BB

Whether one agrees with the states or not, there

is a strong argument that American democracy benefits from
lawsuits brought by states against the federal government . Schoolchildren throughout the United States are taught the
importance of separation of powers, and how the three branches of the federal government check and balance each other. Perhaps less often
discussed is the vertical separation of powers between the federal government and the states. The United States Constitution establishes a system
where the people give power to two independent governments.91 Each of us is subject to both the federal government and a state government.92
Indeed, the framers specifically considered a system in which “Congress . . . employ[ed] state governments as regulatory agencies.”93 And they
“rejected [that] concept of a central government that would act upon and through the States, and instead designed a system in which the State and
Federal Governments would exercise concurrent authority over the people.”94 Thus, “our Constitution establishes a system of dual sovereignty
between the States and the Federal Government.”95 In some areas, federal law is supreme.96 If the federal government acts
properly within its limited and defined powers, the Supremacy Clause prevents the states from
interfering.97 That is the deal states agreed to when they joined the Union. But the federal government must stay in its
own lane. Powers not specifically granted to the central government were retained by the states—a concept reaffirmed in the Tenth
Amendment.98 Moreover, the federal government has to do its own work; it cannot force the states, or state legislatures or officers, to do its
bidding.99 That is the anti-commandeering principle described in cases like New York v. United States and Printz v. United States.100 The
framers designed “a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship,
its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it.”101 In this “tension between
federal and state power,” the Supreme Court has said, “lies the promise of liberty.”102 “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.’”103 James
Madison described it as “a double security” for “the rights of the people.”104 The “great innovation” was that “our citizens would have two
political capacities, one state and one federal, each protected from incursion by the other.”105 Just as the horizontal separation of powers among
the three branches of the federal government “serve[s] 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.”106 The “allocation of powers between the National Government and the States [thus]
enhances freedom . . . .”107 As such, there is a strong argument that when the federal government gets out of its lane,
whether it is the legislative branch or the executive branch, it is the constitutional duty of the states to push back. To fulfill
the framers’ vision of a “double security” for individual liberty, the federal government must believe that the states will fight federal overreach,
and the states must sometimes actually do so.108 As the Supreme Court has said, “These twin powers will act as mutual restraints only if both are
credible.”109 The discharge of that responsibility does not always require states to sue the federal government, and it does not always require
them to win if they do sue. And it may not be the state attorney general who should be speaking for the state; that is a question of state law for
each state and its citizens to determine on their own. What is important is that the states do their part in

maintaining the necessarytension between themselves and the federal government . This is not to say that
individuals cannot seek to vindicate the vertical separation of powers. As the Supreme Court explained recently in Bond v. United States,
“[f]idelity to principles of federalism is not for the States alone to vindicate.”110 That is because “[s]tates are not the sole intended beneficiaries
of federalism.”111 When an individual has been injured by a violation of the vertical separation of powers, he or she has a right to object to and
challenge that constitutional infirmity. “[I]ndividuals, too, are protected by the operations of separation of powers and checks and balances; and
they are not disabled from relying on those principles in otherwise justiciable cases and controversies.”112 This article only suggests that states
may have their own role to play in creating the necessary “ tension between federal and state power” to
maintain “the promise of liberty.”113 If exercised properly, serious state-led litigation against the federal
government (and the “credible” threat of such litigation) could go a long way toward persuading the
federal government to respect states as the counterweight the framers envisioned and to exercise
appropriate “restraint[].”114
***insert democracy impact***
The perm moots the counterplan’s suit---it’s seen as lock-stepping instead of the tension
that’s necessary for the net-benefit
Hessick 18
F. Andrew Hessick, Law Prof-UNC, and William P. Marshall, Kenan Prof of Law-UNC, State Standing to Constrain the President, Chapman L.
Rev. 21(1), 2018

Courts can hear cases only when parties have requisite standing. This means that presidential actions may be able to escape judicial review
because of standing limitations. For example, if the lower courts had not granted standing to Texas to challenge President Obama's Dreamers
initiative, which declared a policy of not enforcing immigration laws against a large class of immigrants, then it is likely no party would have
been able to maintain that suit. 35Link to the text of the note To establish standing to challenge a policy, an individual must
show he suffered an injury in fact because of that policy. 36Link to the text of the note The Dreamers policy of not enforcing the law
does not obviously injure anyone; instead, it confers a benefit on the immigrants covered by it. Giving the states standing to sue, therefore,
may be the only way through which a president's actions can be subject to judicial scrutiny . The next sections
accordingly examine the current law governing state standing and discuss whether the scope of state standing should be adjusted so as to provide
an additional check on the expansion of presidential power. State Standing to Sue the Executive Under Current Law State suits
against the president and other federal executive officials seeking to force compliance with the
Constitution and federal law invariably raise questions of Article: III standing.37 Standing is one of the various
doctrines that implement the " cases" and "controversies" provision in Article: III .38
[Footnote 37]
Although the most heavily litigated, standing is not the only obstacle states face in suits against federal
actors. For example, states must also demonstrate their claim is ripe and not moot . Although the United States and
its officials also enjoy sovereign immunity in suits by states, Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 280 (1983),
section 702 of the Administrative Procedure Act waives that immunity for suits seeking non-monetary damages against an "officer or employee"
of the United States. 5 U.S.C. § 702. Accordingly, so long as a suit does not seek damages, sovereign immunity should not be an obstacle to state
suits against federal officials.
[End Footnote]
 AT courts don’t take the case
Courts take the case
Schapiro 12 - Professor of Law and Director, Center on Federalism and Intersystemic Governance, Emory University School of Law
(Robert, “Judicial Federalism and the Challenges of State Constitutional Contestation,” Penn State Law Review,
http://www.pennstatelawreview.org/115/4/115%20Penn%20St.%20L.%20Rev.%20983.pdf)

Cuccinelli and EPA also represent the intersection of the two fundamental structural principles in the constitutional system of the United States,
separation of powers and federalism. The justiciability barriers confronting non-state litigants in these cases are generally justified as preserving
the separation of powers.148 The doctrines of standing, ripeness, and political question define the circumstances in which the courts may oversee
the legislative and executive branches of government. The standing doctrine, in particular, has been subject to severe criticism. It may provide a
shield to allow the executive to violate the law, free from judicial scrutiny.149 Cuccinelli and EPA suggest that federalism may
serve to mediate the tensions between respect for the constitutional role of the President and Congress and
a license for lawless conduct. Apparently, state governments will have a special ticket into the courthouse .
The states will thereby have a distinctive role in enforcing the law. They will have an unusual privilege
to subject the political branches to judicial scrutiny .
 AFFIRMATIVE
Your aff should have USFG key arguments and an inherent barrier
 AT follow on
No follow-on, even if pressured
Mikos 15 - Professor of Law and Director of the Program in Law and Government, Vanderbilt University Law School (Robert, “ARTICLE:
INDEMNIFICATION AS AN ALTERNATIVE TO NULLIFICATION,” 76 Mont. L. Rev. 57)//BB

The federalization of criminal law arguably poses a threat to the states' traditional police powers. 1 Congress has created thousands of distinct
federal crimes, 2 and the "amount of individual citizen behavior now potentially subject to federal criminal control has increased in astonishing
proportions in the last few decades." 3 Though not all of these federal criminal statutes necessarily upset the careful regulatory choices the states
have made, many of them likely do. For example, Congress has criminalized activities the states now permit; it has denied federal criminal
defendants many of the special procedural rights they would enjoy if prosecuted in state criminal justice systems; and it has imposed punishments
on convicted offenders that [*58] vary both in degree and kind from the punishments imposed by state law for comparable offenses. 4 In many
instances, Congress's decision to supplant the policy choices made by the states seems unjustified by any
legitimate federal interest. 5 The conventional wisdom suggests there is very little the states themselves
can do to stop the federalization of criminal law and the resultant diminution of state prerogatives. The states, of course, have no
authority to nullify federal law, nor can they interfere with the enforcement of federal law. At most, the states can petition the federal
courts, Congress, and the President to respect state authority, but it seems unlikely they will find a
receptive audience in any of the three branches of the national government . The federal courts have
done little to stem the tide of federalization; Congress lacks the incentive to abstain from criminal
legislation and has repeatedly passed over proposals to comprehensively reform federal criminal law; and
while the President has discouraged enforcement of certain federal criminal statutes, the President's
willingness and ability to do so are limited in important respects . 6

No follow-on
Gardner 18 - Assistant Professor of Law University of Washington School of Law (Trevor, “Right at Home: Modeling Sub-Federal
Resistance as Criminal Justice Reform,” 46 Fla. St. U. L.Rev., Lexis)//BB

The model is therefore based on a bilateral framework of engagement between the federal government
and sub-federal governments in matters of criminal enforcement . It is important to note the model’s
limitations. First, the start of the process does not ensure its completion . That is to say, the decision by a
subfederal government to abstain from participation in the enforcement of a federal criminal initiative
will not necessarily result in the abolition of the federal initiative, in mimicry by other sub-federal
governments, or in nullification of the federal initiative within abstaining jurisdictions . Second, a state
government may block a local government’s enforcement-abstinence policy given the supremacy of state law over municipal law.41 Third, the
federal government may be able to quash sub-federal opposition by conditioning federal funding to states and
municipalities on participation in the federal criminal initiative in question.42
 AT internal nb
Non-unique --- PATRIOT Act
Bulman-Pozen 9 – JD @ Yale, Professor of Law @ Yale (Jessica and Heather Gurken, “Uncooperative Federalism,” Yale Law Journal,
https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5164&context=ylj)//BB

Note, too, that the majority of the states do more than use their bully pulpit to shout at the federal government.
They also use their policymaking authority to thwart the Patriot Act's provisions , something that is
possible only because the federal government relies on the states for enforcement assistance . Recent counts
suggest that there are roughly ten times as many state and local fulltime police officers as federal officers, and the federal government lacks the
resources to implement all of the Patriot Act's provisions without state and local assistance . 8' Thus, the
refusal of states to cooperate in a variety of activities throws a wrench into the Patriot Act's enforcement .
Because the states are not autonomous sovereigns standing to one side of the federal scheme, they are able to back their rhetoric with concrete
action.

In addition to dozens of other examples

Bulman-Pozen 9 – JD @ Yale, Professor of Law @ Yale (Jessica and Heather Gurken, “Uncooperative Federalism,” Yale Law Journal,
https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5164&context=ylj)//BB

The case studies above offer a few examples of how uncooperative federalism works in practice , but they are far
from the only examples. As states assume an ever greater role in enforcing federal immigration law through
partnerships with the federal government, 86 for instance, some states have gone further than federal law requires (for example,
by sanctioning employers who hire illegal immigrants87), while others have taken the opposite stance and passed noncooperation
laws that reject federal efforts to enlist state assistance in enforcing immigration law .88 States have also
used waivers under the State Children's Health Insurance Program to provide coverage for uninsured
adults. 89 They have taken advantage of their discretion pursuant to the Clean Water Act to place
conditions on, or altogether thwart, federal dam projects."0 They have refused to perform disability
eligibility reviews for Social Security."1 Despite the seemingly coercive financial strings attached, some
states have resisted full implementation of the No Child Left Behind Act .92 And states are fighting a
spirited battle against the REAL ID Act of 2005, which imposes requirements on state forms of identification used for federal
purposes.93 Other examples of uncooperative federalism may be harder to spot because they do not fit neatly into the model sketched above. For
example, state decriminalization of medical marijuana , while concededly at the edges of our definition, might nonetheless be
thought of as uncooperative federalism. Against a backdrop of strict federal criminalization,9 4 thirteen states have eliminated
state-level criminal penalties on the use, possession, and cultivation of marijuana by patients who have a physician's recommendation. 9' These
state laws flout, with aspirations to change, federal drug law 96 and have prompted a range of reactions from the federal
government. While Congress seems to have declared a d6tente,97 the executive branch has been actively working to undermine the
decriminalization efforts underway in California, the state with the most nationally visible decriminalization policy. 9 8

Progressive federalism gets used for non-progressive ends

Miller 19 – Professor of Political Science @ Rutgers (Lisa, “Federalism is unlikely to save progressive politics,” Law and Political
Economy, https://lpeblog.org/2019/07/11/federalism-is-unlikely-to-save-progressive-politics/)//BB

Can federalism work for progressives? Since the election of Donald Trump, left-leaning scholars and
political activists have increased their focus on state and local governments as potential venues for
progressive policies. Legal scholars Heather Gerken and Joshua Revesz championed the use of federalism’s multi-layered venues as an
opportunity for progressives to “resist Washington overreach, shape national policies, and force the Republicans to compromise.” Because state
and local governments are often “led by dissenters and racial minorities,” they argue, progressives have little to fear from the old days when
white supremacists used state and local governments to oppose civil rights. In their view, “This is not your father’s federalism. The problem
with this argument is that it lacks any account of power, that is, how the structure of American federalism
shapes and channels political activities in ways that are more advantageous to some interests than to
others. American federalism is not neutral . In fact, federalism’s many venues generally disadvantage groups
with comprehensive, progressive policy aims for several reasons: first, federalism does not just create
political opportunities but also limits them; second, state and local governments are poorly situated to
solve national problems; third, jurisdictional boundaries can be remade in ways that disadvantage
progressives; and finally, contestation itself over which level of government should perform which
activities harms progressive causes. To begin, federalism functions not only as a system of multiple venues but also as a system of
vetoes, that is, political choke points that allow small groups with narrow economic or ideological interests to block or slow implementation of
policies preferred by political majorities. Gerken and Revesz laud this blocking potential, but blocking is a generally rear-guard action for
progressives, while it is often the end in itself for conservatives. Progressives may use uncooperative federalism to resist deportation of
undocumented immigrants, for example, but what they really seek is national immigration reform that protects migrant workers, refugees,
immigrants, and their families. For conservatives, however, using states to preempt local laws (e.g., gun control), or resist federal law (e.g.,
expansion of Medicaid) often is the goal. Blocking policies from being implemented, being uncooperative, or dragging one’s feet in enforcing
federal rules are not strategies that are equally beneficial to all political interests. By definition, American federalism has a status quo bias or, to
put it plainly, conservativism has a built-in advantage. This is not to suggest that the only goal of conservatives is to block progressive policies
rather than enact their own. But we need to recognize that progressive agendas, by definition and in contrast to conservatives, more commonly
seek to marshal and expand the resources of the national government in order to enact comprehensive, universal social policies aimed at
providing or improving public goods. For such policies to succeed, big national policy initiatives are often required. As University of Oxford
political scientist Desmond King reminds us, “forceful federalism”—major national policies backed by aggressive enforcement—are the primary
mechanisms through which many forms of social progress have occurred in the United States. In contrast, without the powerful resources of the
national government and consistent policy enforcement across all levels, the many layers of American federalism allow for a great deal of
disruption to progressive policies, even when majorities support them. A second reason why the structure of American federalism
disadvantages progressive policies is that states are not well-situated to enact most progressive legislation
on their own. It is true that if the Trump administration guts environmental protections, for example, states such as California can enact
higher standards and work with other ‘blue’ states to do the same. This is the famous “laboratories of democracy” argument which is
often used in Tenth Amendment state sovereignty claims . But the United States has free and open borders
between states, which means that state policies are routinely cross-contaminated. From environmental
degradation to illegal gun markets, state and local governments cannot control who or what comes and
goes from their jurisdiction, making control over most policies that progressives care about extremely
difficult. In fact, many environmental problems can barely be contained by national policies, let alone state
ones. Moreover, state-by-state enactment of progressive policies requires many extraordinary acts of collective action and cooperation and
results in highly uneven distribution of policy benefits across regions. States also operate with extreme fiscal limitations,
constraining the type of policy innovation they can implement . Most states have balanced budget amendments and are
therefore restricted with respect to borrowing, which limits their ability to spend during times of economic contraction. Moreover, states cannot
control movement of employers, leaving them vulnerable to the demands of corporate interests. And what’s true at the state level is even more
true at the local level, as local governments are almost entirely at the mercy of property taxes. The national government has no such constraints.
With the dollar as the world’s default reserve currency and the U.S. the world’s primary super-power, the United States government essentially
borrows when it pleases, and on generally favorable terms. Few countries, let alone individual states, can say the same. A third reason why
American federalism is a questionable ally for progressives is that the jurisdictional boundaries of national, state, and local governments—and
conservatives’ commitment to sustaining them—are fluid and contested. There are no guarantees that progressive policies at
the state and local level today will be safe from reactionary rollback tomorrow . Gun control illustrates this point
with great clarity. When cities faced overwhelming gun violence in the 1990s, many tried to enact gun regulation supported by local and national
majorities. Despite conservatives’ stated commitment to “local control,” gun advocacy groups mobilized to pass preemption laws at the state
level, barring cities from enacting gun regulations stricter than those of the state. When cities responded by suing gun manufacturers in federal
court, Republicans went for full national preemption with the Protection of Lawful Commerce in Arms Act, which gave civil immunity to gun
manufacturers from liability lawsuits in federal court. So much for state and local control. Such strategies are a form of preemption and, while
most national preemption is floor preemption—that is, requiring states not to fall below a specific level of provision (welfare spending, pollution
limits, and so on)—the gun control case illustrates how Republicans might pursue ceiling preemption, that is, forcing states and localities to abide
by limits on what they can do and spend. Legal scholars might see such preemptions as constitutionally problematic based on Tenth Amendment
state sovereignty jurisprudence, but students of American history know that such obstacles can be swept away, replaced by new jurisprudential
standards. A good example of such jurisdictional fluidity is the gradual decline of congressional power under the Commerce Clause by
conservatives on the Supreme Court, from U.S. v. Lopez through National Independent Business v. Sebelius. While these decisions barred
Congress from requiring local officials to conduct background checks and states to expand Medicaid (respectively), the jurisprudential shift from
the previous era on the Commerce Clause illustrates just how mutable constitutional rules can be. There is no reason to assume that the current
composition of the Supreme Court would reject federal preemption of state and local progressive policies based on the Supremacy Clause,
Compact Clause or treaty powers. The Court has already interpreted preemption doctrine to bar some state tort claims against corporate entities.
A final and crucial reason why progressives should be wary of federalism’s alleged political neutrality is that the contestation itself over the
jurisdictional boundaries of different levels of government benefits conservative views. When progressives win—or appear to be
winning—major policy victories, no matter the level of government, opponents can, and do, move the
political debate from whether to enact such policies, to which level of government should do so . This
move disrupts, slows, or downright blocks political momentum and policy reform . The endless disputes over the
constitutionally proper roles of different levels of government are costly. They take valuable time and resources away from the already slow
national policy-making process and disrupt the fragile political mobilization of large groups that support them. By embracing
federalism’s alleged virtues, progressives allow their opponents to perpetuate the idea that opposition to
policy at one level of government or another is rooted in constitutional principle rather than political
interests. Such strategies also lead to a perverse positive feedback loop for progressives , in which the
arguments they make about state and local prerogatives end up enriching the ability of conservatives to
block the very national policies that progressives care about in the first place .
 AT internal nb – impact d
US not key
Jones and Taussig 19 – *PhD @ LSE, Hamburg fellow in conflict prevention at Stanford University, vice president and director of the
Foreign Policy program at Brookings and a senior fellow in the Institution’s Project on International Order and Strategy, **PhD @ Tufts,
nonresident fellow in the Foreign Policy program’s Center on the United States and Europe at Brookings. In 2018-19, she is based in Berlin as a
Robert Bosch Foundation Fellow. Taussig works on U.S. foreign policy, European and Asian security, authoritarian politics, and U.S.-Russia
relations (Bruce, Torrey, “Democracy and Disorder: The Struggle for Influence in the New Geopolitics,” Kindle Edition)

4. The interplay between internal strains and external efforts to exacerbate them has weakened the leverage of the political West. The
phase
of the post-Cold War era when the United States and other like-minded states could enlarge the
democratic community through democracy promotion efforts with manageable domestic and international
pushback has ended . Instead, the global financial crisis and the rise of China have triggered a deep level of introspection within the
political West. The world’s most important shaping power, the United States — itself a revisionist power bent
toward liberalism and democracy—is in strategic disarray and appears to be withdrawing from its
commitment to supporting and exemplifying democratic standards . The European Union, the other bulwark of the liberal
order, has turned inward, facing domestic instability caused by characteristics inherent to a more open order, including economic integration, low
trade barriers, and the free movement of people. Authoritarian leaders within the West challenge the very foundations
of the liberal democratic model. Protectionist forces challenge key elements of the international order, including the rules-based
trading system and an alliance structure rooted in trans-Atlantic cohesion and American power. Given the trans-Atlantic
community’s role as the primary instigator and promoter of democratic progress in the post-WWII era, internal
discord has significant consequences for democracy and the future character of the international order .
The West’s ability to be the primary shaper of democratic institutions and norms will remain limited . While
Western distraction may not lead to an inevitable backsliding of democracy globally, internal disarray among the world’s most
powerful democratic states leaves many unanswered questions about what countries, or coalitions of
countries, will play a more active role in sustaining the pillars of the liberal order .

Alt caus---China
Diamond 19 – PhD in Sociology, professor of Sociology and Political Science at Stanford University (Larry, “Ill Winds: Saving
Democracy from Russian Rage, Chinese Ambition and American Complacency,” Kindle Edition)

Russia is also making strides to modernize its military power, particularly its ability to wage a high-speed, mechanized war, enhanced by the use
of drones, high-tech tanks, electronic jamming, computer hacking, and long-range air defenses. Combined with its improvements in the range and
accuracy of its weaponry, these aggressive investments pose a new and serious threat to NATO. 57 Nevertheless, Russia is
fundamentally a declining power whose malign intentions and nationalist bravado cannot disguise its
outstripped economy and shrinking importance to the twenty-first-century world . Another autocratic
power is also cutting deep into the fabric of democracies around the world: China, an enormous, proud
country that is rapidly emerging as the next superpower . China’s methods are more patient and
incremental than Russia’s, relying heavily on the geopolitical leverage that comes with Beijing’s massive aid and investment, the
omnipresence of its firms and immigrants, and the burgeoning flows of its money—overt and covert—to associations, parties, politicians, media,
think tanks, and universities abroad. Increasingly, these forms of influence seek to compromise the independence of critical democratic
institutions, stifle public criticism of China, and preempt foreign and defense policies that could hinder China’s rise to global dominance. In the
long run, the greatest external threats to global democracy are the ambitions of a rising China, not the
resentments of a falling Russia. China’s global reach and power will increasingly and inevitably dwarf
[outweigh] Russia’s. Through China’s “hidden world of inducements, threats, and plausible deniability,”
as the Australian journalist and policy adviser John Garnaut has put it, a quiet invasion is unfolding. 58 And all this is happening
at just the moment when Donald Trump’s United States is retreating from its decades-long role of global
leadership and when the American model of liberal democracy is decaying from within .
 AT pot
States don’t solve
Young 15 – professor of law @ Duke (Ernest, “Modern-Day Nullification: Marijuana and the Persistence of Federalism in an Age of
Overlapping Regulatory Jurisdiction,” Case Western Reserve Law Review, 65.3)//BB

Even apart from preemption, however, the continuing federal prohibition will make it extremely difficult for
legalizing states to establish a stable regime. Limited federal enforcement remains possible in a variety of
scenarios. Federal authorities may choose to target marijuana businesses or commercial-scale growers.
They may use marijuana charges as a lever against persons targeted for some other reasons (including arbitrary
ones). The federal illegality of marijuana businesses also has a host of collateral consequences: marijuana
businesses may be unable to access the banking world on account of federal prohibitions on financial
transactions involving illegal activity;99 they may face damaging federal tax consequences ;100 and state
ethics rules may prevent attorneys from counseling persons who engage in activities that remain illegal
under federal law.101 Likewise, individuals using marijuana in violation of federal law may face significant
employment or family law consequences, and persons on probation or parole may find that marijuana use
constitutes a violation of that status.102 Finally, not everyone is Justice Holmes’s “bad man”—that is, motivated only by the fear of
sanctions.103 Even if adverse legal consequences are unlikely, some persons may have strong moral or religious aversions to lawbreaking.104
States like Colorado and California thus have not succeeded—and cannot succeed, on their own—in making either recreational or medicinal use
of marijuana legal, either as a formal or as a practical matter. They have, instead, created a highly unstable situation that is unlikely to satisfy
proponents of either legalization or prohibition over the long term. Legalization cannot achieve its goals —a safe, aboveboard,
and well-regulated market for marijuana— in the teeth of a continuing federal prohibition . But that prohibition will hardly
be a legitimate, nonarbitrary legal regime in the absence of state and local enforcement partners. Something will have to give.
 AT environmental crimes
Financial and resource limitations prove federal reform for environmental crimes is
necessary- and federal agencies can cooperate with states through a holistic approach
Jarrell and Ozymy 17 – members of the Department of Undergraduate Studies at Texas A&M University.
(Melissa and Joshua, “Red state, blue state, green state: analysing the geography of federal environmental crime
prosecutions within and across the U.S. states.” Nature. June 22, 2017. DOA: June 21, 2020.
https://www.nature.com/articles/palcomms201763)//MGalian

On a good day the EPA has about 200 agents to investigate environmental crimes and a limited enforcement budget . It is no
surprise that in practice most violations of environmental crimes are punished via monetary fines and settled via negotiated settlements (Ozymy
and Jarrell, 2011).The agency falls prey to a simple logic of what Daley and Layton (2004) call a “ transactions cost”
logic of agency decision-making . Given the political pressure by competing principals that are openly hostile to strong
enforcement and the numerous resources employed by many corporations that violate environmental laws, pair this with
limited resources and it is no wonder why the agency chooses to negotiate settlements with environmental offenders, rather than pursue
criminal prosecution (Uhlmann, 2009; Mintz, 2012). In other words, facing the transaction costs of pursuing criminal investigations and
prosecution (budgetary and political), the agency simply negotiates most settlements out of necessity; this occurs even with the long history
within the agency’s culture of valuing strong enforcement (Mintz, 2004, 2005). The number of criminal indictments pursued by the agency was
only about 340 in 2007 (Jarrell and Ozymy, 2014). Large corporations and other environmental offenders understand the transaction costs
the deterrent value of environmental enforcement is often very
associated with strong enforcement, which is why
low (Ozymy and Jarrell, 2016) and offenders may see enforcement as just another variable in the calculation of the economic cost of doing
business. The recognition that small fines had little deterrent value for environmental criminals and that compliance with regulatory rules required
stiffer penalties, led to the creation of the EPA's Office of Environmental Enforcement in 1981 and the Department of Justice’s (DOJ)
the federal government only prosecuted 25
Environmental Crimes Section in 1982. Before the creation of these institutions,
environmental crimes (Campbell-Mohn et al., 1993). However, the actual governmental apparatus that oversees and punishes
environmental offenders consists of a wide range of laws and statutes across local, state, and federal jurisdictions. While the number of
environmental crime prosecutions began increasing through the 1990s (Cooney, 2006), there is still a relatively small amount of funds budgeted
for this important work (Solow and Carpenter, 2011), given the magnitude of the problem in the country. At the federal level, the EPA handles
most investigations that uncover wrongdoing through civil fines and penalties, rather than referring cases for prosecution. While the agency
employs attorneys and criminal investigators, they must refer cases outside the agency if they are deemed serious enough for criminal
prosecution. Generally, cases referred for criminal prosecution are handled by the Environmental and Natural Resources Division of the DOJ
and/or attorneys representing the EPA from the U.S. Attorney’s Office. In practice, state and local environmental regulators generally do not have
sufficient resources or experience to investigate major environmental crimes. Nor do most local district attorneys or state Attorney General’s
Offices that would prosecute criminal offenses of environmental law generally have significant resources and experience in the area. In practice,
local and state environmental regulators often
as most crimes happen within state borders, not federal territory, both
work with EPA investigators and attorneys that represent the agency to pool resources to investigate and prosecute criminal
violations of environmental law. As a result of the costs involved, “The EPA requires its criminal investigators to focus on matters involving
significant environmental harm and culpable conduct, with culpability defined to include repetitive violations, deliberate misconduct, and acts of
concealment or falsification” (Uhlmann, 2009: 1244).
 AT nullification
Nullification fails
Mikos 15 - Professor of Law and Director of the Program in Law and Government, Vanderbilt University Law School (Robert, “ARTICLE:
INDEMNIFICATION AS AN ALTERNATIVE TO NULLIFICATION,” 76 Mont. L. Rev. 57)//BB

Although states have ample reasons to object to the federalization of criminal law , it is commonly thought that
there is nothing they can do to stop the phenomenon. Most importantly, it is settled wisdom that states cannot nullify
federal law . Nullification is the theory that each individual state is fully "sovereign" and as such the final
judge of its own constitutional rights and obligations; that consequently it may legitimately rule that any
federal act - law, regulation, judicial decision, executive action, or treaty - is unconstitutional; and, most important, that it
may act on this judgment by blocking the implementation of that federal act within the state's boundaries .
38 Almost since the Framing, states have attempted to nullify objectionable federal laws by declaring them
void within their own jurisdictions and by threatening to block their enforcement through various means (say, by hanging federal
law enforcement agents). 39 But nullification flies in the face of express federal supremacy, 40 not to mention common sense, and has
been rightly been dismissed and derided by the Supreme Court , 41 (most) politicians, 42 and scholars
alike. 43 Notably, even the head of the Cato Institute rejects the theory of nullification 44 - a clear indication of
just how far from mainstream the theory of nullification strays .
 AT sue the FG
The CP is viewed as too partisan --- courts reject it
Lin 18 - Partner, Hunton & Williams L.L.P. Solicitor General of West Virginia, 2013–2017 (Elbert, “STATES SUING THE FEDERAL
GOVERNMENT: PROTECTING LIBERT Y OR PLAYING POLITICS?,” https://lawreview.richmond.edu/files/2018/04/Lin-523.pdf)//BB

Another concern about the recent increase in state-led litigation against the federal government is dilution
of credibility. Conventional wisdom has long held that a state’s decision to file or intervene in a lawsuit in
its own name, or to submit an amicus brief, makes a certain statement with the judiciary and in the court
of public opinion that private parties do not.128 But as states file more and more lawsuits, do they risk
cheapening the brand? James Tierrey, Maine’s Attorney General from 1980 to 1990, thinks so: “My long-term concern is that the
[attorneys general] become seen as one more lawyer, one more politician on the make, and that undercuts
the credibility of the office itself.”129 Nolette, for one, plainly sees state attorneys general in that way already.130 In his view,
“[t]he [attorneys general], far from ‘protecting the interest of their states,’ as they frequently claim, are
doing the bidding of partisan and interest coalitions on the Left and Right alike.” 131 Will courts begin to take the
same view? If the legislative and the executive branches also do so, will that undermine the states’ ability to elicit
“restraint” on the part of the federal government ?132