AT Hollow Hope

SDI 2009 Lopez CP LOPEZ CP – INDEX LOPEZ CP – INDEX .................................................................................................................................................................................................................. 1 ***LOPEZ NEG*** ................................................................................................................................................................................................................... 1 Lopez - 1NC................................................................................................................................................................................................................................ 2 Lopez Solvency ........................................................................................................................................................................................................................... 3 Lopez Solvency – Narrow Ruling ............................................................................................................................................................................................... 4 Lopez Federalism Net-Benefit .................................................................................................................................................................................................... 5 Lopez Federalism Net-Benefit .................................................................................................................................................................................................... 6 AT: Permutation Do Both ........................................................................................................................................................................................................... 7 AT: Permutation Do Both ........................................................................................................................................................................................................... 8 Generic AT: Lopez DA‘s ............................................................................................................................................................................................................ 9 AT: ESA DA – No ESA Overturn ........................................................................................................................................................................................... 10 AT: ESA DA – No Impact to ESA............................................................................................................................................................................................ 11 AT: ESA DA – ESA Bad Turn ................................................................................................................................................................................................ 12 AT: Terrorism DA – No Link ................................................................................................................................................................................................... 13 AT: Terrorism DA – No Impact ................................................................................................................................................................................................ 14 AT: Unpredictability DA .......................................................................................................................................................................................................... 15 AT: Unpredictability DA .......................................................................................................................................................................................................... 16 AT: Courts Link to Politics ....................................................................................................................................................................................................... 17 AT: No Test Case...................................................................................................................................................................................................................... 18 *** AFF ANSWERS*** .......................................................................................................................................................................................................... 19 AT: Lopez Counterplan – Rolled Back ..................................................................................................................................................................................... 20 AT: Lopez Counterplan – Rolled Back ..................................................................................................................................................................................... 21 AT: Lopez Counterplan – Doesn‘t Solve Federalism ................................................................................................................................................................ 22 Terrorism DA 2ac ..................................................................................................................................................................................................................... 23 ESA DA 2ac.............................................................................................................................................................................................................................. 24 ESA DA 2ac.............................................................................................................................................................................................................................. 25 ESA DA – Link Extension ........................................................................................................................................................................................................ 26 ESA DA – MPX Extension ....................................................................................................................................................................................................... 27 Unpredictability DA 2ac ........................................................................................................................................................................................................... 28 Unpredictability DA 2ac ........................................................................................................................................................................................................... 29 Unpredictability DA – Link Extension ...................................................................................................................................................................................... 30 Unpredictability DA – Link Extension ...................................................................................................................................................................................... 31 ***LOPEZ NEG*** 1 SDI 2009 Lopez CP Lopez - 1NC The United States Supreme Court should narrowly rule that federal authority over _____________________(Insert advantage areas) exceeds the power of the federal government under the 10th Amendment, and should devolve this authority to the states. The Fifty States of America and United States territories should _________________________________________________(Insert plan). The Court can make this ruling and devolve power to the states –it won’t be rolled back Miller 98 Mark A. Miller, Lawyer @ Baker Botts, 1998, Cleveland State L. Rev., ln The history of the Tenth Amendment is an appropriate starting point in the development of substantive federalism. For a long period of time, the Tenth Amendment operated as nothing more than a plain statement of the obvious that afforded little protection to the states. 249 In the aftermath of Garcia, state sovereignty was left to the political processes. 250 Tenth Amendment power was reborn in New York v. United States when the Court held that Congress could not commandeer the states' legislative function. 251 This protection is decreed no matter how strong the federal interest in the legislation may be. 252 Protections over state sovereignty were expanded again in the 1996 Term when the Court invalidated certain portions of the Brady Act. 253 According to Printz, Congress cannot force the states' executive branches to enact federal regulatory programs regardless of the federal interest involved. 254 Whenever the structural framework of dual sovereignty is compromised, the Tenth Amendment steps in to prevent a usurpation of federalism. 255 Printz and New York held that Congress was incapable of commanding the states to take a course of action that it could not undertake directly. 256 But what happens if Congress breaches the Tenth Amendment through an Article I power like the Spending Clause? Do the Court's enunciated protections extend to Article I? These are the questions that the theory of substantive federalism answers. The restraint on Article I began, to large extent, in Garcia when Justice O'Connor predicted that the Commerce power would be affirmatively limited [*191] by state autonomy. 257 The door was further opened in New York when the plenary nature of the Commerce Clause was labeled as "subversive" to the interests of state sovereignty. 258 United States v. Lopez put the first nail in the coffin when it struck down an exercise of the Commerce power as going so far as to approach a "police power of the sort retained by the States." 259 The Commerce Clause, in other words, authorizes control over interstate commerce, but does not authorize regulation of the states. 260 Seminole Tribe, however, lends the greatest support to the substantive federalism theory. The Eleventh Amendment -- a core guardian of state sovereign interests 261 -- withstands any attempt by Congress to pierce the shield of federalism with Article I. 262 Similar to the Tenth Amendment, the Eleventh Amendment once provided little protection to the states when Congress flexed its Article I muscle. 263 Along with the strengthening of the Eleventh Amendment, New York and Printz add to the growth of federalism and the devolution of unrestricted congressional power. The same 5-4 majority 264 has written the opinions in New York, Lopez, Seminole Tribe, and Printz, and it is only a matter of time before the rationale in Seminole Tribe is extended to the Tenth Amendment as a limit on the Spending Clause. 265 Substantive federalism presents the argument that the Tenth Amendment will be used in much the same manner as the Eleventh Amendment was used in Seminole Tribe. If a core principle of state sovereignty will be encroached upon by an Article I power, the Tenth Amendment prohibits the intrusion. 266 On the other side of the coin, Congress must look to the Tenth Amendment and ask whether its proposed legislation will impinge upon principles of federalism. If substantive federalism can operate to block congressional action under the Commerce Clause, then it can also curtail the Spending power. 267 2 SDI 2009 Lopez CP Lopez Solvency Supreme Court can devolve authority to the states Sprick 99 David M. Sprick, Doctoral Candidate & Lecturer in the Department of Political Science @ UMKC, 27 Cap. U.L. Rev. 529, ln Federalism is ―a constitutional principle involving a distinctive territorial division of powers, usually a special approach to representation within the national government, and mechanisms both legal and political [*530] to settle interlevel disputes.‖ 3 Others have described federalism as that which ―as a matter of law centers on the division of authority between the federal and the state governments,‖ 4 or as the ―dispersion of political power,‖ 5 or ―a system of authority constitutionally apportioned between central and regional governments.‖ 6 The Constitution sets forth the boundaries of federalism with the enumeration of Congress‘ powers in Article I, Section 8; the undefined powers implied by the Necessary and Proper Clause; 7 the General Welfare Clause; 8 the Supremacy Clause; 9 and the Tenth Amendment‘s reservation of powers to the states ―or to the people.‖ 10 By defining to whom powers not delegated are reserved, the Tenth Amendment provides ―an express federalism marker‖ and interrelates the amendment with constitutional and political federalism. 11 The Tenth Amendment states, ―The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.‖ 12 This amendment has been the rallying cry for devolutionists in the political branches concerned with excessive federal power. Moreover, the Tenth Amendment‘s reemergence in constitutional decisions has not gone unnoticed by Supreme Court watchers. The Court seems to be reestablishing itself as the ―umpire of federalism,‖ 13 a role it all but abdicated in Garcia v. San Antonio Metropolitan Transit Authority 14 when it told the states they could find better constitutional protection from the ―procedural safeguards inherent in the structure of the federal system.‖ 15 [*531] In a series of recent cases-U.S. Term Limits, Inc. v. Thornton, 16 United States v. Lopez, 17 and Printz v. United States 18 -the Court reversed its thinking in Garcia and is umpiring the federal system once again. More importantly, the Court appears to be divided over both the meaning of the Tenth Amendment and the first principles of American federalism. ―The Justices‘ opposing. asymmetrical positions [on federal power] can be discerned by juxtaposing Term Limits with United States v. Lopez.‖ 19 It is possible to add the recent Printz decision to such an analysis because the same factions within the Court, with respect to federalism, formed to limit federal power once again. 3 SDI 2009 Lopez CP Lopez Solvency – Narrow Ruling The court can issue narrow rulings without linking to precedent disads Smith 2 Stephen F. Smith, Associate Professor, University of Virginia School of Law, April 2002, Texas Law Review, Activism As Restraint: Lessons from Criminal Procedure, 80 Tex. L. Rev. 1057 The end result after decades of case-by-case refinement (and frequently revisionism) was a considerable change in Miranda doctrine, but not a complete evisceration of Miranda. Neither Warren nor Rehnquist got to have his first-best preference. What they did get was a second-best approach in which the suspect must be given basic information as to his rights and has the power, by making (and sticking to) an unequivocal request for counsel, to stop all questioning. Of course, the police have ample latitude to use persuasion or clever, noncoercive means to cause suspects not to exercise that power and, ultimately, to make incriminating statements that can be used against them at trial. n213 After Dickerson, it would appear that Miranda law is finally at an equilibrium that almost all of the Justices - including supporters and critics of Miranda - can accept, as shown by the fact that seven of the nine Justices signed onto without comment an opinion reaffirming both Miranda and all of the limitations and exceptions adopted over the ensuing three decades. n214 This is the advantage of reactivism - it provides an effica-cious means by which a Court that fundamentally disagrees with earlier precedents, but is unwilling or unable to overrule them explicitly, can move the law (and, with it, actual case outcomes) back in what it believes to be the right direction. The legal system and the public thereby gain, to varying degrees, the benefits of the overruling. At the same time, reactivism allows risk-averse Justices and the Court as an institution to avoid the unpleasant consequences of overruling that have historically made Justices so reluctant [*1112] to overrule even the most indefensible decisions. n215 Thus, the law gets "fixed" in a way that avoids sharp doctrinal shifts. The court can issue narrow rulings without overruling past precedent Vandevelde 96 Kenneth J. Vandevelde, Thinking Like a Lawyer, April 1, 1996, p.105 Third, the court may create an exception. This is an explicit, but only partial, repudiation of the prior case. The prior case remains good law, but it no longer controls all of the situations it once did. The last example could be used to illustrate this technique as well. Assume that, in the first case, there had not been adequate assurances that the store‘s claim was well founded. In that situation, the second case, rather than overruling the prior case sub silentio, might simply create an exception—holding that, although prior notice is generally required, subsequent notice is sufficient if the court has adequate assurances that the store‘s claim to a right of seizure is well founded. Obviously, lawyers may differ at times over whether the second case represents an exception to the first case or an overruling of it sub silentio. To the extent that the two cases are truly different, the second case may well be carving out an exception to the general rule set forth in the first case. To the extent that the two cases seem indistinguishable, however, then the conclusion is almost inescapable that the first case has been overruled sub silentio. As has been seen, lawyers may differ over whether two cases are distinguishable, and thus they may differ over whether the second case created an exception to, or overruled sub silentio, the first case. Any exception changes the law with respect to those situations embraced within the exception. Moreover, by defining the factual predicate of the exception broadly, the court can bring large numbers of cases within the exception. Eventually, the exception may become more widely applicable than the so-called general rule, with the result that the exception is said to swallow the rule.‖ At the time it was created, the exception seemed a minor change in the law. but over time it proved to be a virtually complete repudiation of the earlier rule. ‗ 4 SDI 2009 Lopez CP Lopez Federalism Net-Benefit Extending Lopez by devolving power to the states sends a powerful federalism signal – solves global wars and instability Calabresi 95 Steven G. Calabresi, Associate Professor, Northwestern University School of Law. ―A Government of Limited and Enumerated Powers,‖ Michigan Law Review December, 1995 The prevailing wisdom is that the Supreme Court should abstain from enforcing constitutional limits on federal power for reasons of judicial competence and because the Court should spend essentially all its political capital enforcing the Fourteenth Amendment against the states instead. This view is wrong. First, the rules of constitutional federalism should be enforced because federalism is a good thing, and it is the best and most important structural feature of the U.S. Constitution. Second, the political branches cannot be relied upon to enforce constitutional federalism, notwithstanding the contrary writings of Professor Jesse Choper. Third, the Supreme Court is institutionally competent to enforce constitutional federalism. Fourth, the Court is at least as qualified to act in this area as it is in the Fourteenth Amendment area. And, fifth, the doctrine of stare [*831] decisis does not pose a barrier to the creation of any new, prospectively applicable Commerce Clause case law. The conventional wisdom is that Lopez is nothing more than a flash in the pan. 232 Elite opinion holds that the future of American constitutional law will involve the continuing elaboration of the Court's national codes on matters like abortion regulation, pornography, rules on holiday displays, and rules on how the states should conduct their own criminal investigations and trials. Public choice theory suggests many reasons why it is likely that the Court will continue to pick on the states and give Congress a free ride. But, it would be a very good thing for this country if the Court decided to surprise us and continued on its way down the Lopez path. Those of us who comment on the Court's work, whether in the law reviews or in the newspapers, should encourage the Court to follow the path on which it has now embarked. The country and the world would be a better place if it did. We have seen that a desire for both international and devolutionary federalism has swept across the world in recent years. To a significant extent, this is due to global fascination with and emulation of our own American federalism success story. The global trend toward federalism is an enormously positive development that greatly increases the likelihood of future peace, free trade, economic growth, respect for social and cultural diversity, and protection of individual human rights. It depends for its success on the willingness of sovereign nations to strike federalism deals in the belief that those deals will be kept. 233 The U.S. Supreme Court can do its part to encourage the future striking of such deals by enforcing vigorously our own American federalism deal. Lopez could be a first step in that process, if only the Justices and the legal academy would wake up to the importance of what is at stake. 5 SDI 2009 Lopez CP Lopez Federalism Net-Benefit The Lopez precedent is critical to reinvigorate federalism Calabresi 95 Steven G. Calabresi, Associate Professor, Northwestern University School of Law. ―A Government of Limited and Enumerated Powers,‖ Michigan Law Review December, 1995 The Supreme Court's recent decision in United States v. Lopez 2 marks a revolutionary and long overdue revival of the doctrine that the federal government is one of limited and enumerated powers. After being "asleep at the constitutional switch" for more than fifty years, 3 the Court's decision to invalidate an Act of Congress on the ground that it exceeded the commerce power must be recognized as an extraordinary event. Even if Lopez produces no progeny and is soon overruled, the opinion has shattered forever the notion that, after fifty years of Commerce Clause precedent, we can never go back to the days of limited national power. The Lopez Court has shown us that we can go back, if we want to, so long as: 1) we can figure out a workable theory of the limits on the federal commerce power; 2) we can agree on the propriety of vigorous judicial review in federalism cases; and 3) we can take proper account of the important reliance interests that have accrued around certain key precedents decided in the past half century. Extending the Lopez precedent restores federalism Calabresi 95 Steven G. Calabresi, Associate Professor, Northwestern University School of Law. ―A Government of Limited and Enumerated Powers,‖ Michigan Law Review December, 1995 The very real danger is that the Supreme Court will end up conferring legitimacy on congressional and presidential usurpations of state power that might be resisted more vigorously in the absence of federal judicial review. The advantages of constitutional federalism will not be obtainable if the Court hands down decisions like Lopez only once every ten years. National judicial umpiring of federalism boundaries will be useful only if the courts invalidate usurpations with some frequency, thus justifying the public confidence that the judiciary really is doing its duty in this category of cases. The counterplan is a victory for federalism Young 4 Ernest Young, Law Professor, University of Texas, TEXAS LAW REVIEW, November 2004, pp. 135-6 The structure of the Court's current Commerce Clause doctrine bears this conclusion out. The Court has conceded that the national economy has become integrated to the extent that there is no meaningful distinction between intra-and inter-state commerce; rather, there is just "commerce." And the Court has also eschewed any effort to compartmentalize the various forms of economic activity, as it once sought to distinguish between "commerce" and "manufacturing" or "agriculture." Now all of these things are "commerce"; that term, the Court has made clear, comprehends all "economic activity." Nonetheless, it is important to maintain some enforceable limit on the Commerce Clause. Precisely because these cases are so high profile, they play an important symbolic role. As I have already suggested, they may serve an important process function of reminding Congress to consider the limits of its powers when it acts. At the same time, limits on the Commerce Clause are closely linked to the states' autonomy; those limits, after all, preserve a zone of regulatory authority that Congress may not preempt. This is true even though the particular statutes at issue in Lopez and Morrison were not preemptive - that is, they did not forbid parallel state legislation on the same subjects. If Congress were to attempt to supplant state autonomy to make regulatory decisions over physician-assisted suicide or gay marriage, for example, Lopez and Morrison would likely offer the most promising basis for challenging such legislation. 6 SDI 2009 Lopez CP AT: Permutation Do Both Permutation links to the DA – it’s an immediate federal action that impacts politics and the federal structure The permutation is impossible – the counterplan rules that the action of the plan is illegal – means doing both is mutually exclusive. Links to federalism – exclusive state power is key Gardbaum 97 Stephen, Associate Prof – Northwestern U., Texas Law Review, March, Lexis [*796] Despite their diametrically opposed conclusions, however, a fundamental premise is shared by both sides in this longstanding debate -- a premise that characterizes almost all analyses of American federalism. This shared premise is that the existence of areas of exclusive state power is a necessary condition of constitutional federalism: in order for federalism to operate as a principle of constitutional law, there must in practice (and not merely in rhetoric or national myth) be areas of regulatory authority reserved exclusively to the states -- areas in which Congress cannot regulate. Given this shared premise, the debate has focused on whether or not such areas currently exist constitutionally speaking, and its content consists largely of arguments for and against various proposed textual bases for them. Leading candidates over the years have included the Commerce Clause, 6 the Tenth Amendment, 7 and the Guarantee Clause. 8 Even small issues spill over and effect federalism Lack 95 James, Senator of New York, Serial No. J-104-31, 7-11, p. 11 Every year Congress considers bills, federal agencies consider rules, and international agencies consider cases that would supplant state statutory or common law. Adverse decisions may result not only in nullifying state laws and court decisions, but also in narrowing the range of issues that legislatures may address. The threat is the steady, incremental, year-by-year erosion of the jurisdiction of state legislatures. Each issue is key – only the counterplan prevents the root cause of federal intrusion on state power Lack 95 James, Senator of New York, Serial No. J-104-31, 7-11, p. 11 Inordinate reliance upon the central government for problem-solving feeds the misconception that uniformity for uniformity‘s sake alone is a concept that justifies preemption. However, in a federal system strong reasons compel acceptance of diversity among states. Our federalism anticipates diversity; our unity does not anticipated uniformity. By definition, every preemptive law diminishes other expressions of self-government and should be approved only where compelling need and broad consensus exist. While proponents of preemption may claim expected benefits, these must be balanced against the potential loss of accountability, innovation, and responsiveness. Don’t let the size of the infraction fool you – the result is tyrannical governance Lebow 97 Cynthia C., Associate Dir @ RAND, U. Tennessee Law Review, Spring, Lexis n162 See Southland, 465 U.S. at 21 (O'Connor, J., dissenting) (noting Rehnquist, C.J., joining opinion of O'Connor, J.); FERC, 456 U.S. at 775 (O'Connor, J., concurring in part and dissenting in part) (noting Rehnquist, C.J., joining in opinion of O'Connor, J.). Justice Powell filed his own partial dissent in FERC that also deserves mention. FERC, 456 U.S. at 771 (Powell, J., concurring in part and dissenting in part). Lauding the "appeal" and "wisdom" of Justice O'Connor's dissent, Powell stated that PURPA "intrusively requires [states] to make a place on their administrative agenda for consideration and potential adoption of federally proposed standards.'" Id. at 771, 775 (Powell, J., concurring in part and dissenting in part). While finding that precedents of the Court supported the constitutionality of the substantive provisions of PURPA "on this facial attack," Powell also evoked principles of federalism to warn against the encroachment of federal authority into state affairs: But I know of no other attempt by the Federal Government to supplant state-prescribed procedures that in part define the nature of their administrative agencies. If Congress may do this, "Of course, no one expects Congress to obliterate the states, at least in one fell swoop. If there is any danger, it lies in the tyranny of small decisions in the prospect that Congress will nibble away at state sovereignty, bit by bit, until someday essentially nothing is left but a gutted shell." Id. at 774-75 (Powell, J., concurring in part and dissenting in part) (quoting presumably it has the power to pre-empt state-court rules of civil procedure and judicial review in classes of cases found to affect commerce. This would be the type of gradual encroachment hypothesized by Professor Tribe: Laurence H. Tribe, American Constitutional Law 302 (1978)). Despite his warning, Justice Powell could probably never have envisioned the degree to which Congress would attempt to preempt state court procedures with respect to tort and product liability actions, areas so traditionally anchored in state common law. 7 SDI 2009 Lopez CP AT: Permutation Do Both Every federal policy explicitly trades off with state power Harvard Journal of Law and Public Policy 2k Spring, Lexis The new term actually gives us a new perspective on the enumerated powers. No power granted to Congress - think of the Commerce Clause - may be so construed as to preempt entirely the states' power over the people. I employ the phrase "power over the people" for two reasons. First, this phrase emphasizes that the reserved powers of the states must somehow reflect general sovereign powers, which are powers over people. 60 The "States qua States" cases preserve the states' power over some people - those who are state employees. A state that may resist commandeering so as to retain only the power to exist in name possesses no meaningful powers. Second, I refer to the states' power over "people" because the Court has overlooked "the people" in its arguments over the Tenth Amendment, and "the people's" rights are also reserved. The Tenth Amendment expresses a triangular relationship among the federal government, state governments, and the people. Although the context for Tenth Amendment litigation has involved disputes between states and the federal government, residual state authority also inures to the benefit of "the people." In any contest between Congress and the [*566] states, a decision that favors expanded federal powers necessarily disfavors the states and the people. When Justice Souter wrote in Alden that "the commerce power is no longer thought to be circumscribed," 61 he meant, implicitly, that the people have reserved no powers over commerce or anything affecting it. 8 SDI 2009 Lopez CP Generic AT: Lopez DA’s The court won’t use commerce clause precedent to strike down other measures Stewart 4 Nathan+ Awarded the ninth annual Case Western Reserve Law Review Outstanding Student Note Award, as selected by the Volume 54 Editorial Board., NOTES: Turning The Commerce Clause Challenge "On Its Face": Why Federal Commerce Clause Statutes Demand Facial Challenges, 55 Case W. Res. 161 In examining the lower courts' treatment of Commerce Clause statutes in the wake of Lopez and Morrison, and Reynolds discovered that "in nearly two years following Morrison, only one statute has been held unconstitutional on its face, and that decision did not survive en banc review." n322 Conceding that the judiciary has been "marginally more comfortable sustaining as applied challenges" n323 to commerce-based laws, Denning and Reynolds concluded that "even here the courts have been circumspect," n324 finding "only nine cases in which a defendant's conviction was overturned." n325 Rather than abuse or even widely exercise its post-Morrison discretion to invalidate [*206] Commerce Clause legislation, the judiciary has largely "declined to read Morrison to require that earlier cases be overruled or even seriously reexamined." n326 Moreover, Denning and Reynolds have found courts "quick to invoke circuit rules against overruling circuit precedent and the rules against anticipatory overruling of Supreme Court cases," and have argued that "such a 'desk clearing mentality' makes it difficult to credit the predictions of Lopez and Morrison's, harshest critics: that they will result in courts striking down all manner of federal statutes." Professors Denning 9 SDI 2009 Lopez CP AT: ESA DA – No ESA Overturn No link – no reason ESA would be questioned because the conterplan is a narrow ruling The ESA will be upheld on treaty power grounds, even if it violates the commerce clause Fleming 1 Jacalyn R. Fleming, JD Albany, 2001, ―The scope of federal authority,‖ 65 Alb. L. Rev. 497, p ln Under Article 2, Section 2 of the U.S. Constitution, the power to make treaties is expressly delegated to the United States. 167 Treaties made pursuant to the Constitution are "the supreme laws [*519] of the land." 168 In addition, statutes that are both "necessary and proper" to execute a treaty are deemed valid. 169 Thus, treaties and their implementing statutes may preempt state law. 170 For example, in Missouri v. Holland, 171 the Supreme Court upheld the Migratory Bird Treaty Act against a state's challenge that the Act was interfering with rights reserved to the states. 172 In so holding, the Court discussed the limits of the Tenth Amendment and stressed the importance of the national interest at stake. 173 In addition, Justice Holmes explained the special nature of the treaty-making power: We do not mean to imply that there are no qualifications to the treaty-making power; but they must be ascertained in a different way. It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, "a power which must belong to and somewhere reside in every civilized government" is not to be found... . [especially] where the States individually are incompetent to act. 174 The Court further explained that the Constitution should not be read as a static document but as an organism that could evolve with a changing nation. 175 A national solution was needed to protect the great value of migratory birds and the Court refused to find "some invisible radiation from the general terms of the Tenth Amendment" to hamper national action. 176 In addition, the Court began the process of chipping away at the states' power over wildlife by explaining that wild birds belong to no one, 177 while also [*520] recognizing that "but for the treaty" the state could regulate the subject itself. 178 The authority of ESA is based on federal treaties. Section 2 of the ESA acknowledges Congress's pledge to the international community to protect species from extinction. 179 One express purpose of ESA is to "achieve the purposes of the treaties and conventions set forth." 180 Six treaties are specifically listed in the statute, in addition to a general reference to "other international agreements." 181 One of the named treaties is the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (Western Convention). 182 ESA won’t be overturned – Court will find it constitutional under both the commerce clause and the treaty power Fleming 1 Jacalyn R. Fleming, JD Albany, 2001, ―The scope of federal authority,‖ 65 Alb. L. Rev. 497, p ln Congress's authority to enact the ESA under the Commerce Clause has been questioned, particularly in the context of wholly intrastate species, because it is unclear how the taking of an endangered species could have a substantial effect on interstate commerce. The Supreme Court, however, has held some activities, such as the growing of homegrown wheat, to be within the realm of interstate commerce due to the aggregate effects of the activity. 292 The question remains whether the Supreme Court will require that the regulated activity itself be commercial, but even if so, the economic and commercial nature of protecting endangered species and maintaining biodiversity should not be difficult to defend. All citizens depend on these species for food, medicine, and every other economic measure independent of minerals. Biodiversity is an untapped economic potential. As a renowned biologist has explained, "the more the living world is explored and utilized, the greater will be the efficiency and reliability of the particular species chosen for economic use." 293 Someday the nation may come to appreciate fully the harm resulting from the loss of biodiversity, and seek to prevent further loss. The ESA may be upheld as constitutional, even without Commerce Clause authority. As an issue of critical national and economic concern, endangered species protections fall well within the treaty power of Congress, and the ESA is a necessary and proper statute adopted domestically to implement provisions of treaties with other nations. Consequently, the ESA is a valid act of Congress under the treaty power and thus may preempt state and local laws to the extent local laws conflict with the ESA pursuant to the Supremacy Clause. 10 SDI 2009 Lopez CP AT: ESA DA – No Impact to ESA ESA fails – it has never received adequate funding Fischman 4 Robert, Predictions and Prescriptions for the Endangered Species Act, Questia There is no getting around the money issue. The ESA has never received adequate funding to fulfill its objectives. As with other environmental laws, the agencies charged with implementing the ESA do not have adequate budgets to perform well. There is a pattern of under-funding programs that self-fulfills the prophesy of federal environmental law failure. The squalid state of ESA funding is a particularly vivid illustration of this insidious dynamic. For years, agency budgets for listing and designation of critical habitat have fallen short of what is needed to meet the mandates of the stature. (123) This tenuous situation prompts lawsuits asking courts to force the Services to respond to particular petitions. In short order, the agencies expend their entire budgets responding to outside litigation priorities rather than their own. (124) Some critics have used this frustrating situation to argue for limitations on judicial review. (125) But the real solution is to give the Services the resources they need to do their jobs in identifying and listing species on the brink of extinction, designating critical habitat, and preparing adequate recovery plans. There is more than a little hypocrisy in calling for the federal government to act only on the basis of Even putting aside the funding required to list species, designate habitat, and conduct consultation, the costs of species recovery alone justify a bleak view of funding. A 1990 Interior Department report estimated the total cost for recovery of listed species to be $4.6 billion. (127) The number of listed species has doubled since that time. "sound" or "peer reviewed" science, (126) but not supporting the significant budget increases necessary to carry out high quality research. The ESA exempts the biggest polluters Fischman 4 Robert, Predictions and Prescriptions for the Endangered Species Act, Questia One important reason why so many ESA disputes revolve around logging, agriculture (including ranching), and residential or commercial land development (the sectors I will call the "Big Three") is that these are the most important non-service areas of the economy that generally escape regulation under the pollution control laws. Activities subject to the pollution control statutes are relatively uncontroversial from an ESA perspective because they are already regulated under those other environmental laws. Where pollution control regulation does the heavy lifting, often what remains necessary for the ESA program is slight. But, for the Big Three, exemptions and exclusions have left the ESA with a tremendous challenge to control habitat degradation. No regulation is net-better for the environment Dunlop 96 Becky Norton, Individuals, Liberty and the Environment, http://www.heritage.org/Press/Individuals_Liberty_Environment.cfm And finally, environmental policies, which emanate from liberty, are the most successful. Our chosen political environment in the United States is liberty. And liberty is the central organizing principle. May I remind this audience that genius of the United States Constitution is not so much that it is a charter to create a government, but rather it is a charter to protect the people and their cherished liberty from government. As I stated previously, there is a direct and positive relationship between free market societies and the healthiness, cleanliness, and safety of the environment. Free people work to improve their environment, and I might add, the environment of others. And liberty is the energy behind environmental progress. Freedom unleashes forces most needed to deal with problems. It fosters scientific inquiry, technological innovation, entrepreneur ship, rapid information exchange, accuracy and flexibility. Liberty has powerful environmental benefits. 11 SDI 2009 Lopez CP AT: ESA DA – ESA Bad Turn ESA is on-balance worse for species – empirics prove it doesn’t stop extinction, and the parts that would be struck down provide economic incentives to destroy habitat, resulting in net losses Jonathan H. Adler, Assoc. law Prof @ Case Western, Jan. 2005, ―Judicial Federalism,‖ 90 Iowa L. Rev. 277, p ln The Endangered Species Act ("ESA") is the federal regulatory statute most at risk under the Court's Commerce Clause jurisprudence, but it would be a mistake to assume a threat to the Endangered Species Act necessarily poses a threat to the survival of endangered species. Enacted in 1973 to save species from the brink of extinction, the ESA has hardly been a success. In over thirty years, fewer than forty of over 1,000 species have been delisted as endangered or threatened. 553 In this time more species have been delisted because they went extinct or never should have been listed as endangered in the first place than have been legitimately "recovered" due to the Act. 554 Among the various factors that contribute to the ESA's ineffectiveness as a conservation tool are the very regulatory strictures most at risk to Commerce Clause challenge. Section 9 prohibits the "take" of endangered species, including significant modification of listed species' habitat. The presence of a listed species can freeze the use of private land, barring everything from timber cutting and ditch digging to plowing a field or building a home. In Riverside County, California, the ESA even prevented private landowners from disking to clear firebreaks on their own land lest they disturb the habitat of the Stephens' kangaroo rat. 555 Consequently, private landowners are penalized for owning endangered species habitat. 556 In this fashion, the ESA creates economic incentives for private landowners to engage in the deliberate destruction of actual or potential wildlife habitat and to forego or prevent future habitat creation on privately [*460] owned land. 557 Professors Lueck and Michael report that forest owners respond to the likelihood of ESA regulation by harvesting timber and reducing the age at which timber is harvested. 558 Such preemptive habitat destruction could well "cause a long-run reduction in the habitat and population" of endangered species. 559 In some instances, it is likely that the economic incentives created by the Act result in the net loss of species habitat. That is, in some cases the ESA may be responsible for more habitat loss than habitat protection. 560 Professors Lueck and Michael are not alone in their findings. A study in Conservation Biology further reports that just as many landowners responded to the listing of Preble's meadow jumping mouse by destroying potential habitat as undertook new conservation efforts. 561 It also found a majority of landowners would not allow biologists on their land to assess mouse populations out of fear that land-use restrictions would follow the discovery of a mouse on their land. 562 The Fish and Wildlife Service also acknowledges that its own regulations can lead to habitat loss on private land. In the Pacific northwest, land-use restrictions imposed to protect the northern spotted owl made private landowners fear the lost use of their land and that "this concern or fear has accelerated harvest rotations in an effort to avoid the regrowth of habitat that is useable by owls." 563 Insofar as ESA regulation discourages private land conservation, it is undermining species conservation efforts. The majority of endangered and threatened species depend on private land for some portion of their habitat, 564 so by discouraging private land conservation, the ESA could well have a devastating impact on species conservation efforts. While there is no conclusive evidence as to the net effect of the ESA on species conservation on private land, there is more than enough evidence to challenge the prevailing [*461] assumption that limitations on ESA regulation of private land will result in net harm to endangered species. If courts hold that the Commerce Clause limits federal regulation of private land, it may even prompt the federal government to adopt alternative approaches to species conservation that do not produce the same unintended consequences and conserve species in a more effective and equitable manner. The imposition of federal priorities on unconsenting states can also have negative environmental results. In many cases, the assertion of federal regulatory authority to advance environmental goals will safeguard important environmental concerns. But in other cases, federal authority can prevent states from adopting environmentally preferable alternatives. Federal preemption of more protective state environmental standards can inhibit more effective environmental protection, as well as experimentation with new approaches of addressing environmental concerns. 565 12 SDI 2009 Lopez CP AT: Terrorism DA – No Link Quick response is irrelevant Osterholm 99 Michael T. Osterholm,- PhD Johns Hopkins Center for Civilian Biodefense Studies http://www.postgradmed.com/issues/1999/08_99/osterholm.htm To date, most of the federal, state, and local agencies involved in planning and training for terrorism have focused on the classic event involving chemical release or use of an explosive device. In these situations, police, fire, lawenforcement, and other emergency-response personnel descend on a scene where causalities are evident. The news media have depicted preparedness exercises, featuring rescuers wearing hazardous material (HAZMAT) protective reflects our nation's preparedness to deal with terrorism associated with weapons of mass destruction. Unfortunately, in the case of a biologic-agent release, this scenario could not be further from the truth. Because the onset of illness is often delayed, sometimes up to weeks after the release, and because a biologic agent can be disseminated widely throughout an entire city or region, the timing and location of a bioterrorism event may be extremely difficult to identify. Instead of being heralded by red lights and sirens converging on a known point of assault, a bioterrorist attack will be identified gradually by emergency department physicians, infectious-disease consultants, clinical laboratorians, and public health epidemiologists. Their role will be critical in recognition of the release of a biologic agent. To date, the public health and medical care equipment, and this training supposedly delivery systems have been woefully ill-prepared to meet the challenge of a biologic-agent release (2). States and localities are more effective than the federal government Hodge 2 James - Executive Director, Center for Law and the Public's Health, http://academic.udayton.edu/health/syllabi/Bioterrorism/4PHealthLaw/PHealth00f.htm Choosing to assign a primary leadership role to the federal government for responding to bioterrorism threats does have its drawbacks. Federal public health authorities may be slowed by inter-organizational or bureaucratic problems. As well, they are not well-positioned to serve on the frontline of defense to a bioterrorist attack. State and local public health authorities, in conjunction with private sector health-care workers, will in most cases be the first to detect potential bioterrorism activity through effective surveillance . Federal authorities may facilitate detection by sharing resources or intelligence data. However, detection of a potential bioterrorism threat through state and local public health authorities is distinct from the response functions of the federal government. Federal terror preparedness trades-off with more effective state and local preparedness Carafano and Weitz 6 PhDs, Learning from Disaster: The Role of Federalism and the Importance of Grassroots Response, http://www.heritage.org/Research/HomelandDefense/bg1923.cfm In the aftermath of the widespread devastation wrought by Hurricane Katrina and the unsteady response to conditions in New Orleans, some argued to give the federal government a much more intrusive role in meeting future catastrophic emergencies. [1] While improvements in the federal response are nec-essary, turning responsibility for everything over to Washington is a terrible idea. Homeland security right response to domestic emergencies requires effective action from state and local governments, private-sector and volun-tary associations, and communities and individuals, as well as support from federal officials. The best way to ensure cooperation and to meet shared responsibilities is not to put big government in charge. Federalism has long been the guiding principle for allocating responsibilities to meet the needs of citi-zens after disasters. Remaining committed to a feder-alist approach is not just being a slave to tradition. It is a precedent based on practicality and experience. Both scientific research on disaster response and an analysis of recent emergencies argue that it is still the right approach. Many of the best efforts to save lives and safeguard property highlight the vital role that nongovernmental organizations (NGOs), private-sec-tor initiatives, and individual civic deeds play during extreme emergencies. In fact, they argue that rather than being supplanted by federal oversight, grass-roots responses should be the cornerstone of the national effort. The federal government can best facilitate estab-lishing an effective national response to catastrophic disaster by meeting its own responsibilities, creating a national response system that promotes collabora­tive effort, and supporting ―train the trainer‖ pro­grams that help communities to build strong grassroots response. and disaster management are national, not just federal, missions. The 13 SDI 2009 Lopez CP AT: Terrorism DA – No Impact All countries co-operating on terrorism now – That solves Hachigian and Sutphen October 8 Nina and Mona, senior fellow at the California office of the Center for American Progress and Managing Director @ Stonebridge, Strategic Collaboration: How the United States Can Thrive as Other Powers Rise, CSIS, Autumn, Lexis All of the pivotal powers are highly motivated to collaborate on counterterrorism efforts, and U.S. intelligence and law enforcement agencies have cooperated with their counterparts in each of these countries. Because the United States cannot have an adequate intelligence presence in every country in which terrorists plot, it is highly reliant on the capabilities of others. British vigilance, for example, uncovered and foiled the August 2006 plot to blow up 10 airplanes bound for the United States with liquid bombs. With the third-largest Muslim population in the world and Pakistan still a key terrorism hub next door, India has monitored and countered radical Islamic groups for decades and has emerged to be an important source of information on a number of extremist groups now targeting the United States. Lashkar-e-Taiba (LeT), a hard-line radical Sunni Muslim group 4 based in Lahore, has carried out major attacks in India, including on its parliament. It has now turned its attention from Kashmir to training people "to wage war against nonbelievers, and especially the United States." 5 In June 2003, 11 American Muslims, called the "paintball terrorists" after a favorite pastime of theirs, were charged in Virginia with training with and fighting for LeT. Six of the men eventually pleaded guilty, and three were convicted at trial. In June 2005, India and the United States signed a 10-year defense pact that promises continued counterterrorism operations. Stopping the spread of weapons of mass destruction to terrorists is perhaps the most urgent goal of U.S. foreign policy. Unbeknownst to many, Russia is the cofounder and cochair with the United States of the Global Initiative to Combat Nuclear Terrorism. This group of about 50 countries, some of which would have been reluctant to join if not for Russia's participation, seeks to develop a framework in which they can prevent or respond to potential radiological attacks. Russia's better protection of its own bomb-ready nuclear material is also an urgent priority for U.S. safety. Over the years, . 6 Although its record is far from perfect, since the mid-1990s, China has greatly improved its domestic control over the flow of sensitive technologies, signed bilateral agreements with the United States, and joined international conventions such as the Nuclear Non-Proliferation Treaty (NPT), the Chemical Weapons Convention, the Comprehensive Test Ban Treaty, the Nuclear Suppliers Group, and others, all of which require adherence to specific guidelines on the transfer of nuclear materials. China was China has become a member in good standing of the non-proliferation community China has signed up to a major Bush administration antiterrorism program, the Container Security Initiative (CSI), designed to prevent terrorists from smuggling a nuclear instrumental in felling the most notorious nuclear swap meet of our time, run by Pakistani scientist A. Q. Khan. Importantly, weapon into the United States in shipping containers. Because U.S. ports are vulnerable, the CSI is aimed at finding weapons of mass destruction before they are loaded onto ships. Each year, more than 10 million containers leave China's ports bound for the United States, more than from any other country. U.S. customs officials are now welcomed in the ports of Hong Kong, Shanghai, and Shenzhen. There will be no major attack- several reasons Brookings Institution 8 Independent research and policy institute ―Have we exaggerated the threat of terrorism?‖ Brookings Institute, July 18, http://www.brookings.edu/events/2008/0221_terrorism.aspx One participant argued that terrorism presents minimal cause for concern. Discounting war zones, studies show that there have been very few people killed by ―Muslim extremists‖ each year—in fact, more people drown in bathtubs each year in the United States. The FBI reported in 2005 that it had not found an al-Qaeda presence in the United States. Additionally, terrorism, by its very nature, can be self-defeating: many attacks by al-Qaeda have caused the group to lose popularity. This participant questioned both the intentions and capability of al-Qaeda. Osama bin Laden has threatened many attacks that he has not been able to execute. In specific, this participant thought it unlikely that that al-Qaeda would obtain nuclear weapons, despite fears to the contrary. Another participant agreed that the fears about terrorism are exaggerated and differentiated between the actual campaign against al-Qaeda and its supporters and the idea of a general ―war on terrorism.‖ However, participants also detailed the larger problems that terrorism can create, regardless of the numbers it kills directly: terrorism often leads to insurgencies or civil wars; it could destabilize U.S. allies in the Middle East and the whole Middle Eastern architecture; terrorism keeps oil prices high; and it has psychological effects beyond the actual death tolls. Additionally, many planned attacks have been stopped before they were carried out; one participant noted that there have been several near-misses recently. One participant argued that the war on terrorism is actually about an ideological battle between the United States and its allies and radical forces. Another participant agreed with this assessment of the general struggle between the United States and ―radical Islamic extremism.‖ This participant noted that the larger struggle is much more complicated to understand than terrorism in specific and that this leads to a disproportionate focus on terrorism and the accompanying misallocation of resources. Participants highlighted the difference between the risks presented by terrorism in the United States and around the world. The impact of terrorism in Iraq and Lebanon, for instance, is completely different than the impact in the United States, which one participant categorized as being essentially psychological. The relevance of the capability of governments at preventing terrorism was also addressed. Terrorism is particularly dangerous in places where there is weak government capacity and rule of law. Participants there not been another terrorist attack in the United States since September 11, 2001. One participant presented several reasons: the United States has a supportive domestic Muslim population; the would-be terrorists in the United States are not skilled; and U.S. counterterrorism policy has made it more difficult for the al-Qaeda core to plan complex attacks. This participant argued, however, that there are risks that this situation may change going forward. As the al-Qaeda discussed why has core reconstitutes itself in Pakistan, it may be able to plan more complex attacks again. Additionally, the U.S. Muslim population may become less supportive overtime as a result of U.S. homeland security policy. However, another participant did not think the attitudes of the U.S. Muslim community were particularly relevant to this debate. 14 SDI 2009 Lopez CP AT: Unpredictability DA Unpredictability is inevitable – multiple factors Caminker 94 Evan H., Professor of Law @ UCLA, April, 46 Stan. L. Rev. 817 Even if courts uniformly applied federal rules, absolute predictability would still elude us. First, legal rules are unstable over time. While stare decisis creates a strong presumption that existing legal rules will govern present behavior, courts can still abruptly change the law by overturning precedent. 142 Second, even stable precedents cannot answer all legal questions, and the answers they do provide are often quite fuzzy and uncertain. As a result, potential litigants are typically faced with some uncertainty as to how the law will ultimately apply to their conduct. Third, federal law is superimposed on a diverse landscape of state laws, introducing an additional element of uncertainty (except where federal law preempts state law). This is especially so since state laws are often potentially unclear and unstable , and liberal venue rules and indeterminate choice of law rules often make it difficult for persons to predict which state law(s) (in addition to federal law) might govern their conduct. 143 Fourth, litigants face uncertainty concerning actual or provable facts. Finally, the potentially nonuniform behavior of other actors (including juries, prosecutors exercising their discretionary powers, and the President exercising her pardon power) necessarily introduces additional elements of unpredictability. In short, litigants face substantial uncertainty, the uniformity of judicial law-decla [*852] ration notwithstanding. Respect for precedent does not affect legal predictability – judges can cite hundreds of contradicting decisions depending upon personal beliefs Calabresi 5 Steven, Professor of Law, CAN ORIGINALISM BE RECONCILED WITH PRECEDENT?: A SYMPOSIUM ON STARE DECISIS: TEXT, PRECEDENT, AND THE CONSTITUTION: SOME ORIGINALIST AND NORMATIVE ARGUMENTS FOR OVERRULING PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY, 22 Const. Commentary 311 There is one final sense in which the doctrine could be said to be thicker than the document and that is in the sense that there is literally more of it: it is bulkier, wordier, and takes longer to read. Thus, Professors Merrill and Strauss are fond of pointing out that the number of paragraphs in Supreme Court opinions and briefs discussing caselaw is greater than the number of paragraphs discussing text or original history. The first thing to be said in response to this the fact that the doctrine is bulkier than the document does not mean that the doctrine is more constraining of judicial discretion. In fact, I suspect the exact opposite is true. The greater bulk of the doctrine means that it is easier for result-oriented judges to manipulate doctrinal arguments by "picking their friends out from among the crowd" as judges have been accused of doing with legislative history or with foreign sources of constitutional law. 49 The doctrine [*329] is certainly bulkier than the document since there are more than 500 volumes of the U.S. Reports, while the Constitution is a few thousand words long, but that does not prove that the doctrine is more constraining. In fact, one can find caselaw support on both sides of almost any constitutional issue. Doctrine lends an air of lawyerly authenticity (and, for laypersons, of impenetrability) to judicial decisions, but this does not mean doctrine restrains judicial discretion. To the contrary, I suspect doctrine gives judges more wiggle room to make policy both because it can be cited for any side of any proposition and because it can be used to pull the wool over the eyes of nonlawyers. I am thus unpersuaded by Professor Merrill's intuition that the doctrine is thicker than the document and original history. argument is that A change in precedent is not perceived as activist Lino 3 THE NATURE AND SOURCE OF CONSTITUTIONAL LAW III. THE LIBERAL ACTIVISM OF THE REHNQUIST COURT IV. CONSERVATIVE ACTIVISM BY THE REHNQUIST COURT, http://goliath.ecnext.com/coms2/summary_0199-2877865_ITM Nor should it be considered activist--it is anti-activist--for a court to overrule a prior activist decision, returning the issue to the political process. Rulings of unconstitutionality give the prevailing party a positive victory, the adoption of a policy preference it failed to obtain in the ordinary political process, while the losing party has its political victory taken away. Rulings upholding constitutionality simply leave things as they were. For practical purposes, the extent and nature of a court's constitutional judicial activism is best determined by considering only its rulings denying, not its rulings upholding, constitutionality and comparing liberal and conservative victories. 15 SDI 2009 Lopez CP AT: Unpredictability DA Non-Unique – Commerce Clause jurisprudence unpredictable now Kreit 6 Associate, Morrison & Foerster, San Francisco, Spring, 108 W. Va. L. Rev. 705, Rights, Rules, and Raich, Alex, LN) Raich leaves Commerce Clause jurisprudence in an increasingly confused state and that should be a cause for concern for everyone interested in the Commerce Clause, regardless of whether one favors a limitless or heavily circumscribed commerce power, or something in between. The Commerce Clause now encompasses three overlapping rules: the aggregation doctrine, the four-part Lopez test, and the broader regulatory scheme rule. If Raich is applied faithfully, the Lopez test will apply in only a very limited number of cases in the future. But, in the absence of a clear framework for choosing between each constitutional rule, it is difficult to know exactly how each test will function and what, if any, activity Congress can not regulate. The confusion that surrounds the tests, also leaves room for future majorities to follow any of the three rules or rationales based solely, or primarily, on a Justice's policy preferences or the ability to cobble together a majority in a particular case. In addition to its internal conflicts, the Commerce Clause now appears to be at odds with the well-settled principles of constitutional adjudication that favor as-applied to facial challenges. Given these problems, the Court should either adopt a clearer, universal standard for limiting Congress' commerce power or consider abandoning its revived limits altogether. Whatever one believes is the ideal interpretation of the Commerce Clause, n260 a clear framework for analyzing cases that is consistent [*749] with the basic principles of constitutional adjudication (whether it be a return to Wickard in which no challenge can succeed or a revival of Lopez) is preferable to a jurisprudence in which it seems as if the most "parsimonious account is that there are some statutes five or more justices . . . think are more or less good ideas, and others that five or more justices think are more or less bad ideas; and that those justices will go to any (purportedly doctrinal) port in a storm to reach the results they think sensible." 16 SDI 2009 Lopez CP AT: Courts Link to Politics Courts are insulated – politicians can deflect criticism and pressure Intoccia 1 Gregory Intoccia, practicing attorney specializing in telecommunications, 2001, Reassessing Judicial Capacity to Resolve Complex Questions of Social Policy, 11 USAFA J. Leg. Stud. 127, pg. np Elected politicians appear to "pass the buck" to the judiciary when an issue divides the electorate in a manner that is not in keeping with conventional party divisions. As the judiciary is a non-partisan institution that has traditionally resolved specific controversies, the courts offer politicians the opportunity to deflect issues potentially disruptive to partisan debate. For example, judicial policy on abortion suggests that this principle is valid. For at least a decade prior to the Supreme Court's abortion decision in Roe v. Wade, many mainstream politicians generally sought to avoid the abortion issue. In the mid-1960s, the two major parties remained divided over New Deal economic issues, but voters were increasingly interested in other issues such as law and order, race, gender equity and social lifestyles. At that time, the majority Democratic Party was divided between liberals who were attracted to new views of social lifestyles and traditionalists who condemned them. The Republican Party was also divided internally over these issues, but to a lesser degree. While the two parties primarily debated economic issues, many mainstream politicians sought to avoid debate on a number of non-economic social issues. As the debate over such issues as abortion intensified, elected officials increasingly deferred to the judiciary for resolution. In the months prior to the Roe v. Wade decision, many politicians sought to remove themselves from the potential fall-out of a legislative solution to the abortion question, preferring instead that the judiciary decide whether to eliminate abortion restrictions. The plan links 4 times more than the counterplan CSM 97 Christian Science Monitor, Why America Puts Its Supreme Court On Lofty Pedestal, June 25, Lexis Today this holds true even more. In one sense, the reason is obvious: With divided government and partisan sniping in Washington, when politicians must create a TV image and constantly raise funds, the scholarly-looking justices seem a refreshing alternative. They come out in black robes from behind red silk curtains, and everyone stands. They ask incisive questions. They disappear. It looks like competence personified. And there's some truth to it. The members of the court don't need to campaign for office every few years. They were selected for life. They don't need speech writers or have to check the polls. The current justices, unlike earlier courts, generally write their own opinions. They are free to dissent, and their rulings are not tied to interest-group pressure. Moreover, as an institution, the court is uniquely constituted. It is not one targetable political persona, as is a single chief executive. Yet it is smaller than a Congress of 535 people. Congress is covered by TV four times as much as the court is. The White House is covered eight times as much, says Lee Epstein of Washington University in St. Louis. The court stands out now because it is not part of Washington's political swamp. The carefully cultivated aloofness of the Supreme Court is, in the Washington scene, almost countercultural in nature. The court's warts don't show. "People don't see the court infighting; it seems more harmonious and less political," says one courtwatcher. "With Congress and the White House, we see the blood-letting on the street." Importantly, say scholars, current justices benefit from courageous stands the court took in cases like Brown school desegregation, and the Roe abortion-rights case - when the majority was fragile and the justices felt under great pressure. Those decisions are a main reason the court image is so buffed today. Justices Don't Have to Wade in Washington Swamp 17 SDI 2009 Lopez CP AT: No Test Case The Court has so many cases it can find one Quirk and Bridwell 95 WILLIAM J. Quirk, Professor of Legal Research at University of South Carolina Law School and R. RANDALL Bridwell, Professor of Law at University of South Carolina Law School, JUDICIAL DICTATORSHIP, 1995 We would answer that the Court is the ―least dangerous‖ branch as Alexander Hamilton said; it has no executive or legislative authority; it doesn‘t make rules; it just decides cases that come before it. The trouble with our answer is that the Court is able to select the cases that come before it from a large number of them. The Court, at its 1992-93 term, refused to hear 7,233 cases while it decided to hear ninety- seven, or 1.3 percent. In 1950, on the other hand, the Court heard 10 percent of the cases brought to it which indicates it was then acting as a court of appeal over the lower federal courts. The Court‘s power to pick from among such a large number of cases gives it the practical ability to rule on issues it thinks important, to act, in effect, as a Court of National Policy. The court can always find a case Adamany 90 David Adamany, Professor @ Wayne State, The American Courts: A Critical Assessment, 1990, p.9 Since Congress adopted the Judges Bill of 1925, most cases on the appellate and miscellaneous dockets have been by writ of certiorari — a request for the justices to hear cases that they may, but are not required, to hear. Under Supreme Court Rule 17, which gives broad categories of cases that the Court may hear, at least four justices must agree to hear a case before it is considered by the Court. Some cases on the appellate docket have been ―appeals by right,‖ certain cases involving the constitutionality of state or federal laws or state constitutional provisions. By law, the Court was required to hear these cases; but the justices developed broad discretion by rejecting cases that failed to pose a substantial federal question as defined by the justices. In 1988, Congress revised the law virtually to eliminate appeals by right, thus giving the justices almost complete choice about what cases to decide. With more than 5.000 cases pending annually, the Supreme Court can almost always find a case to raise any policy issue that the justices wish to decide. Chief Justice Earl Warren apparently asked his law clerks to fmd a case on the Court‘s docket that would allow the justices to overrule a previous decision holding that there was no right for the poor to have an attorney in every criminal trial. The clerks found such a case, and the Court used it to announce a new constitutional rule guaranteeing the right to counsel (Danelski and Danelski 1989, 508). The Court has sometimes gone to great lengths to find the issue it wants to decide. In the landmark case of Mapp v. Ohio (367 U.S. 617 [1961]), the Court held that illegally seized evidence could not be used in state criminal trials. But the dissenting justices accused the majority of ―reaching out‖ to find that issue in the brief of amicus curiae, because the jurisdictional statements, briefs, and oral arguments of the parties had all been devoted to First Amendment free speech issues. Where the Court cannot find an issue on its docket, it may order parties to argue an issue that the justices want to consider. Over the strong objection of four justices that the majority was raising ―a question not presented‖ by the parties, five justices ordered the parties in Patterson v. McLean Credit Union (485 U.S. 617 [1988]) to rearue the case to determine whether the Court‘s 1976 interpretation of a federal civil rights statute should be reconsidered and changed. The majority pointed out four previous cases within the past twenty years when the Court had also ordered reargument to determine whether an earlier decision should be reconsidered and changed. 18 SDI 2009 Lopez CP *** AFF ANSWERS*** 19 SDI 2009 Lopez CP AT: Lopez Counterplan – Rolled Back Congress can override the Courts devolution Goldsmith 97 Jack Goldsmith, Prof @ Chicago, November 1997, Virg. L. Rev., ln Nonetheless, these concerns need not affect the legitimacy of the federal common law of foreign relations. Although federal courts might be generally unsuited to make federal foreign relations law on both legitimacy and competence grounds, the adverse consequences of state-by-state regulation in the face of federal political branch silence might be worse. States suffer from many of the same disabilities as federal courts in this context. Moreover, federal courts, in contrast to the states, have independence from local political processes and, as a branch of the national government, are likely to be more sensitive to national foreign relations interests. Even in the absence of strategic behavior by the states, one might think that, all things being equal, suboptimal but uniform federal judge-made regulation of foreign relations is preferable to the nonuniformity inherent in state-by-state regulation of a foreign relations issue. 213 Finally, the federal common law of foreign relations is designed to protect political branch prerogatives in foreign relations that the political branches themselves are structurally unsuited to protect. Any remaining concerns about the legitimacy or competence of the federal common law of foreign relations are thus mitigated by the political branches' ability to override judicial errors in the development of such law. Congress will roll back contravening judicial decisions Calabresi 95 Steven G. Calabresi, Associate Professor, Northwestern University School of Law. ―A Government of Limited and Enumerated Powers,‖ Michigan Law Review December, 1995 Moreover, even when the Court is determined to resist the policy objectives of a lawmaking majority, Dahl and the president do generally succeed in overcoming a hostile Court on major policy issues." 193 Dahl shows that when the Court strikes down a major national policy initiative, Congress and the President typically repass the law in defiance of the Court. These arguments, confirmed in recent scholarship, 194 constitute an important rebuttal to those who profess fear that national judicial activism someday might lead to a dangerous weakening of the constitutional powers of the national government. demonstrates that "Congress Most Lopez rulings are overturned Journal of Criminal Law 3 Journal of Criminal Law and Criminology, Fall 2003, p. 770 Unfortunately for the judiciary, despite Lopez and its progeny, the drive to federalize crimes continues. And though Lopez has been used to challenge many of these federal criminal laws, "to date, [Lopez] has been of assistance to few defendants." In fact, as of the summer of 1998, of the 400 Lopez challenges made to federal statutes, only three had been upheld. The President can quickly roll back the counterplan Goldsmith 97 Jack Goldsmith, Prof @ Chicago, November 1997, Virg. L. Rev., ln Much more significant than the President's constitutionally derived powers are the broad and numerous foreign relations lawmaking powers delegated to the executive by Congress. 275 Congress has delegated these powers to the the President has access to superior expertise and because structural advantages allow the President to take quick and decisive action. The broadest such delegation is the International Emergency Economic Powers Act ("IEEPA"). 276 Presidential lawmaking power under IEEPA is triggered by "any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States." 277 IEEPA enables the President to respond quickly to suspend or invalidate state law whose application would interfere with or impede the federal government's conduct of foreign relations. The best known example is President Carter's invocation of executive precisely because IEEPA to lift state-law judicial attachments on Iranian assets and suspend private (largely state-law governed) claims against Iran as part of the deal to secure the release of the hostages in Iran. 278 20 SDI 2009 Lopez CP AT: Lopez Counterplan – Rolled Back Executive can rollback Lopez decisions Goldsmith 97 Jack Goldsmith, Prof @ Chicago, November 1997, Virg. L. Rev., ln The executive branch has special monitoring capabilities and preemptive issue. As for monitoring, it lawmaking powers when foreign relations is at is inconceivable that the executive branch will be unaware of a state's action that adversely affects U.S. foreign relations or unduly burdens the federal government's ability to conduct foreign relations. The President is the primary agent of U.S. foreign relations and the primary organ of communication with foreign governments. 266 And the executive branch receives all foreign government complaints about state activity. When the executive branch identifies harmful state foreign relations activity, it is much better positioned than Congress to address it. Foreign relations is (and is perceived to be) the President's responsibility. He is thus more accountable for foreign relations problems than Congress, and has a greater interest in redressing state-created foreign relations difficulties. The President also has a massive executive branch bureaucracy at his disposal to monitor and redress such difficulties. Importantly, the executive branch's ability to respond to these difficulties is not burdened by collective action problems to nearly the same degree as Congress. 267 In addition, the President's unique role in foreign relations enables him to redress unacceptable state foreign relations activity in a variety of ways. First, he exercises special influence on the congressional foreign relations agenda and the content of foreign relations legislation. 268 Second, he or one of his subordi- [*1685] nates can communicate directly with states on behalf of the federal government in order to influence or alter the offensive state activity. 269 Sometimes this communication is nothing more than an informal telephone call to the proper state or local official. Other times the State Department will send a formal letter to the state urging it to cease its offensive behavior. And sometimes the executive branch will file an amicus brief in state court. 270 These means of "informal" presidential control are often employed and often, though not always, successful in changing the offending state behavior. 271 Third, the President has limited but important federal lawmaking powers that enable him, on his own, to preempt state law that adversely affects the nation's foreign relations or the political branches' ability to conduct such relations. Some of these powers derive directly from the Constitution itself. For example, incident to his power to recognize foreign governments, 272 the President can enter into international agreements that preempt state law. The most famous instance is the Litvinov Agreement, which officially recognized the Soviet Union and assigned all Soviet property in the United States to the federal government. This "executive agreement" preempted inconsis- [*1686] tent state property and creditor law. 273 It also ended state court uncertainty about the domestic effect of the Soviet Union's extraterritorial confiscations. 274 Congress will overrule contentious Supreme Court decisions- trends are on our side Schor 7 Elana, June 27, 2007, Legislators consider fixes to Supreme Court rulings, http://thehill.com/leading-the-news/legislators-consider-fixes-to-supreme-court-rulings-2007-06-27.html lawmakers are mulling the future of a thriving breed of bill: the high court ―fix.‖ Members of both parties are pressing or planning at least six bills to clarify recent Supreme Court rulings, signaling what may become a new era of congressional sensitivity to court decisions that can be remedied with legislation. ―What the court‘s saying to us is, you have to write down every single little thing you want done,‖ Sen. Tom Harkin (D-Iowa) said. Congress should not have to step in often to address the court‘s interpretation of statutes, he added, ―but I‘m afraid we may be moving in that direction.‖ Harkin is spearheading measures to counter two of this term‘s most contentious rulings, the rare confluence of a high court drifting to the right and a Congress under Democratic control gives extra urgency to the current crop of legislation. ―I think we have to be responsive to Supreme Court rulings, as precise as possible in our language, and from the Democratic perspective, expect the worst,‖ Senate Majority Whip As the Supreme Court‘s term winds to a close this week, one that limited workers‘ window to sue for pay discrimination and another that exempted home healthcare aides from minimum-wage rules. The House bill to mend the former decision, Ledbetter v. Goodyear, will be marked up today by Education and Labor Committee Chairman George Miller (D-Calif.). Lawmakers have written bills responding to the Supreme Court for decades, and the high number of recent offerings i s hardly a new phenomenon. But Dick Durbin (D-Ill.), a senior Judiciary Committee member, said. Much of the heightened concern among Democrats centers on Chief Justice John Roberts and Justice Samuel Alito, two Bush appointees who sparked partisan wrangling during tense confirmation hearings last session. Now that a series of narrowly divided rulings has alarmed Democrats by curtailing free speech and workers‘ rights, the new majority is striking a Cassandra-like note of warning. ―It‘s clear where the majority of the court is going, and it‘s going far right,‖ Sen. Dianne Feinstein (D-Calif.), also on Judiciary, said. ―That was our greatest fear.‖ Senate Health, Education, Labor and Pensions Committee Chairman Edward Kennedy (D-Mass.) echoed that sentiment in a statement: ―When they were nominated, John Roberts and Samuel Alito insisted they would be neutral umpires. Now that they are on the Supreme Court, every big call seems to go in favor of corporate and government power, and against ordinary citizens.‖ Sen. Debbie Stabenow (D-Mich.) noted several spheres in which the court has taken a conservative approach, remarking, ―We‘re going to have to come back to legislate and look in each of these areas. It certainly sends a profound message about the long-term impact of judicial appointments.‖ In addition to the bills remedying the Ledbetter case and the home healthcare aides case, Long Island Care at Home v. Coke, Miller aims to move a bill that would clarify the government definition of ―supervisor‖ after a 2001 Supreme Court ruling allowed the Bush administration to exempt several classes of workers from overtime-pay rules. ―Any time the court issues a ruling that serves an ideological agenda instead of interpreting the law in a way that reflects workplace realities and congressional intent, we will work to rectify those misguided rulings,‖ said Aaron Albright, a spokesman for Miller‘s panel. Responding to this year‘s decision upholding the ban on certain late-term abortions, Sen. Barbara Boxer (D-Calif.) is leading the push to carve out a permanent abortion right for mothers whose The number of bills answering the Supreme Court ―will increase, no doubt, because as the Alito-Roberts court issues more and more decisions … there are a variety of areas where they may take a stand that‘s far over on the ideological spectrum,‖ said Caroline life or health is jeopardized. And Kennedy is working on a bill that would address several recent civil-rights rulings. Fredrickson, Washington director for the American Civil Liberties Union. 21 SDI 2009 Lopez CP AT: Lopez Counterplan – Doesn’t Solve Federalism Extending Lopez has no external benefit for federalism Mouton 99 H. Geoffrey Mouton, Professor of Law at the University of Minnesota, 1999, Minnesota Law Review, Spring March/April, pg. np Despite the Court's apparent nostalgia for a dramatically smaller national government, no judicially enforced federalism doctrine is going to undo the last quarter of the nation's history. And while cases like New York, Lopez, and Printz may on occasion stimulate important debate, such as the examination of federal criminal law that has followed Lopez, they will never have more than the most marginal relevance to the allocation decisions that matter most. Those who truly believe in the instrumental values of federalism should therefore focus not on persuading courts to undo congressional "mistakes," but rather on promoting wise institutional choice in the political process. 22 SDI 2009 Lopez CP Terrorism DA 2ac Extending Lopez prevent the government from effectively fighting the War on Terrorism Ledewitz 5 Bruce Ledewitz, Professor of Law at Duquesne University School of Law, 2005, Duquesne Summer University Law Review, pg. np In terms of foreign-based terrorism, it is generally conceded that national governments must control national borders, so in that context the issue of federalism does not arise. But in terms of terrorism occurring internally from whatever source, whether domestic or foreign, the situation is quite otherwise. It has been argued vigorously in the United States, for example, that, aside from taxing and spending powers, the central government lacks a regulatory police power. Indeed, the Supreme Court has recently held, in cases acknowledged as reinvigorating federalism, that Congress may not regulate weapons in schools or violence against women and has also intimated that Congress may not regulate the crime of ordinary arson. If these holdings were taken seriously, and their consistent application is in doubt, they might cripple central government efforts to combat terrorism occurring within the United States. For example, terrorists in other countries have already used violence against women to accomplish their political and religious goals. Were this to occur in the United States, the Morrison case would simply have to be overruled, either expressly or impliedly, in order for Congress to respond effectively. But, to acknowledge the incapacity of the states to fight terrorism without central government leadership and control is to acknowledge that there really is, and must be, a central government police power. Yet, the acceptance of such a national police power would be taken among many in the United States to be a direct contradiction of federalism. 23 SDI 2009 Lopez CP ESA DA 2ac A. Striking down congressional power to legislate over issues with substantial economic effect would require overturning all of Congress’s powers under the Commerce Clause Moyers 98 Peter Moyers, Princeton, Spring 1998, ―Drug Legalization,‖ Princeton U.L.J., v. 11, iss. 2, www.princeton.edu/~lawjourn/Spring 98/ Wickard v Filburn (1942) affirmed the decision in NLRB and granted additional power. The respondent in the case was found guilty of violating a law prohibiting the production of more than 11.1 acres of wheat. Even though he did not sell his extra wheat, the Court found that the respondent along with others could possibly substantially affect the wheat market were they all to violate the quota. Although Filburn‘s acts did not themselves substantially affect interstate commerce, many "Filburns" could do so. The risk of substantial effect was enough for congressional regulation. Therefore, Congress‘ interest in stabilizing prices on the wheat market required farmers not to exceed the quota, even if the surplus was not used for commercial purposes. This decision granted Congress the power to regulate non-commercial, local activity if it presents the risk of "substantial economic effect on interstate commerce." These cases bring us to the most recent decision of U.S. v Lopez (1995). In the majority opinion, Chief Justice Rehnquist notes that three categories of activity may be regulated by Congress under the power of the Commerce Clause. First, the channels of interstate commerce are open to congressional regulation. Second, Congress may regulate the persons or things, the instrumentalities, of interstate commerce. Third, an activity may be regulated if it has a substantial relation to interstate commerce, or more specifically, substantially affect interstate commerce. In Lopez, the government argued under the third category, attempting to show that the presence of firearms on school grounds has substantial relation to interstate commerce. The Court found the argument to lack force, asserting that the definition of substantial relation or effect the government was putting forth would transform Commerce Clause power into "a general police power of the sort retained by the States." This decision does not categorically reject the federalization of police powers but rather affirms the doctrine of substantial relation or effect. The Court was unwilling to build "inference upon inference" to see a substantial economic effect; the presence of firearms on school grounds was found to be too far removed from interstate commerce to come under the third category. The Court would be faced with a similar case in the congressional policy of outlawing the use, sale and possession of drugs. In order for the congressional policy to prevail, it must show that the possession and use of drugs, sanctioned by the state policy, substantially affect interstate commerce. However, in order to be consistent with Lopez and Wickard, whose doctrine of substantial risk of effect has never been overturned, and in the absence of empirical evidence, the Court must recognize that even the risk of an activity substantially affecting interstate commerce is sufficient for legitimate congressional regulation. I find the activities sanctioned by the state policy to be of sufficient risk of substantially affecting interstate commerce to find the congressional policy a constitutional regulation denying the practice of the activities sanctioned by the initiative. ***Continues*** The state policy demonstrates the risks involved in allowing states, in the case of drug policy, to pursue different policies. As I argue above, the legalization of drugs within one state almost certainly will substantially burden the effective pursuit of drug use and possession prevention in other states. A neighboring state would have to create nearly impervious borders in order to remain faithful to its anti-drug policy; one wonders if the free flow of people to and from the state, let alone commerce, would remain a possibility. By upholding the constitutionality of the congressional policy, the Court would recognize and condemn the substantial burden a state pursuing an independent drug policy places on neighboring states. Admittedly, to the casual observer, the Court‘s decision would appear to be a significant usurpation of states‘ police powers and a step toward a unitary system. I agree that the Court ought to be wary of assaults on federalism. The decision should not be looked upon by future Courts as a precedent for allowing the nationalization of police powers, but rather as an affirmation of Congress‘ power to regulate any activities, including crimes, that have a substantial effect on interstate commerce. In this case, the state policy creates a risk of substantially affecting interstate commerce. To deny Congress‘ power in this case would be to overturn nearly all Commerce Clause precedents as well as Marigold. And to overturn Marigold would be to all but eliminate any non-enumerated means Congress requires to pursue its powers and duties. Although to find for the federal government might blur the line of federalism, to find for the state would strip Congress of its power, granted in Marigold, to act beyond its enumerated means to pursue its enumerated duties. The latter I do not think our system can tolerate. 24 SDI 2009 Lopez CP ESA DA 2ac B. That would require striking down the ESA – it’s based on the commerce clause Lee 6 Mollie Lee, 11-1-2006, Yale L. J., ―Environmental economics,‖ http://goliath.ecnext.com/coms2/gi_0199-6199333/Environmental-economics-a-marketfailure.html When Congress enacted the ESA, it did so with very little debate and with overwhelming public support. (11) The environmental movement was at its peak, (12) and a nation of newfound environmentalists was eager to respond to well-publicized stories about threats to the bald eagle, blue whale, polar bear, and other "charismatic fauna." (13) Endangered species already received some protection from statutes enacted in the prior decade, (14) but these statutes were limited in scope, and it soon became apparent that they were inadequate to prevent further extinctions. (15) Thus, in 1973 Congress adopted the ESA as a comprehensive approach to protecting threatened and endangered species throughout the nation. Congress relied chiefly on its Commerce Clause powers in passing the statute, (16) but the legislative history contains no explicit discussion of this constitutional authority. However, congressional findings and testimony suggest that Congress understood species extinctions as a problem with both commercial causes (17) and commercial consequences. (18) The causal link between commercial activity and species extinction is particularly prominent in the legislative findings for the statute. There, Congress noted that "various species offish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation." (19) While this finding suggests that Congress understood economic activity to be a primary cause prohibited any activity that would jeopardize the continued survival of threatened and endangered species. of species extinction, Congress did not choose to protect endangered species by directly regulating economic activity. Instead, the ESA C. The ESA is critical to prevent species extinctions UCS 6 Union of Concerned Scientists, http://www.ucsusa.org/scientific_integrity/restoring/science-in-the-endangered.html Biological diversity provides food, fiber, medicines, clean water, and many other products and services we depend upon every day. Yet nearly one-third of native species in the United States are at risk of disappearing. "As children, small creatures endlessly fascinate us; as adults, we can protect them so as to inspire future children." - Les E. Watling, Marine Ecologist It is clear that the ESA has given new hope for sustained survival to numerous species that were on the brink of extinction— less than one percent of species listed under the ESA have gone extinct since 1973, while 10 percent of candidate species still waiting to be listed have suffered that fate. In addition to the hundreds of species that the Act has protected from extinction, listing has contributed to population increases or the stabilization of population declines for more than 30 percent of listed species, as well as the recovery of such signature species as the peregrine falcon. D. That causes extinction Warner 94 Paul Warner, American University, Dept of International Politics and Foreign Policy, August, Politics and Life Sciences, 1994, p 177 Massive extinction of species is dangerous, then, because one cannot predict which species are expendable to the system as a whole. As Philip Hoose remarks, "Plants and animals cannot tell us what they mean to each other." One can never be sure which species holds up fundamental biological relationships in the planetary ecosystem. And, because removing species is an irreversible act, it may be too late to save the system after the extinction of key plants or animals. According to the U.S. National Research Council, "The ramifications of an ecological change of this magnitude [vast extinction of species] are so far reaching that no one on earth will escape them." Trifling with the "lives" of species is like playing Russian roulette, with our collective future as the stakes. 25 SDI 2009 Lopez CP ESA DA – Link Extension The ESA is based on the Commerce Clause – the CP would open the door to striking it down Lee 6 Mollie Lee, 11-1-2006, Yale L. J., ―Environmental economics,‖ http://goliath.ecnext.com/coms2/gi_0199-6199333/Environmental-economics-a-marketfailure.html When Congress passed the United States' major environmental statutes in the 1970s and early 1980s, (1) it acted under its constitutional authority to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." (2) At the time, courts and Congress shared an expansive understanding of the Commerce Clause. (3) The idea that there were limits on Congress's Commerce Clause authority was an "intellectual joke," (4) and the standard law school treatment of Commerce Clause powers boiled down to the explanation that "Congress can do whatever it wants." (5) However, congressional authority to enact environmental legislation has been called into question by recent Supreme Court cases suggesting that Commerce Clause regulation is valid only if Congress is regulating "economic activity." (6) While lower courts applying this new doctrine have held that environmental regulation is valid Commerce Clause regulation, they have had difficulty explaining why. In particular, they have struggled to identify the economic activity regulated by certain environmental statutes. The Endangered Species Act (ESA) is especially vulnerable under the Court's new Commerce Clause analysis. Many environmental statutes may be upheld because they directly regulate industrial activity, which courts regard as sufficiently "economic" for Commerce Clause purposes. (7) This logic is more difficult to apply to the ESA, however, because the statute seeks to protect threatened and endangered species by prohibiting any actions that harm designated species, rather than by regulating specific types of commercial activity. For decades, the wide reach and strict prohibitions of the ESA have generated resistance, (8) and the Court's new Commerce Clause doctrine has created an opening for a wave of legal challenges to the statute. In response to the Court's renewed attention to the economic nature of Commerce Clause legislation, opponents of the ESA have challenged applications of the statute that have only a questionable link to economic activity. 26 SDI 2009 Lopez CP ESA DA – MPX Extension ESA is key to check global species extinction and the economy, and doesn’t stop development Perciasepe 3 Robert Perciasepe, chief operating office of Audubon, SF Chronicale, 12-23-2003, ―The ESA at 30‖, http://www.sfgate.com/cgibin/article.cgi?file=/chronicle/archive/2003/12/23/EDGJ33S6TO1.DTL Americans recognized the danger to their natural heritage and collaborated across party lines to find a solution. The Endangered Species Act slowed and halted a seemingly inexorable slide toward extinction for too many of America's wild birds and animals. Signed the act is a model worldwide for protecting wildlife and habitats. The ESA's effectiveness is obvious today. California species such as the brown pelican, peregrine falcon and gray whale are again abundant enough to have on Dec. 28, 1973, by President Richard Nixon, been removed from the endangered list. The state's sea otters and condors would simply not be here without this landmark bill. The bald eagle is among the act's most dramatic success stories. Down to only a few hundred breeding pairs by 1973, this bird has bounced back thanks to ESA-mandated programs, bringing the number of nesting pairs into the thousands. Now, American schoolchildren once again have a chance to see this most majestic of our birds flying over their communities. No myth, no symbol on a flag or seal, but a living, breathing embodiment of our national spirit. It is something to be proud of for many reasons, not the least of which is a lesson in the potential of American lawmaking. Though effective, the ESA is not without detractors. Critics want it gutted, claiming it protects "unimportant" species and halts the act allows almost any development to go forward, as long as provision is made to protect imperiled species it affects. The law sets the bar high when a developer or polluter wants to remove the last of a species from the planet forever, and it should. Despite critics' arguments, the act actually pushes both the national and California economies forward. U.S. consumers spent nearly $39 billion on wildlife watching in 2001. That year, $2.6 billion was added to development. In fact, California's economy by wildlife watchers, many of whom took trips to see gray whales, condors, sea otters and other animals that can be viewed nowhere else in the country. That they can be seen at all is to the act's credit. When naysayers make claims for weakening the law, they also reveal indifference to what we nearly lost forever -- and what is still at risk. Since the inception of the act, human impacts on wilderness have snowballed. Bird populations such as the cerulean warbler (a species we believe should be listed as endangered) have declined by as much as 75 percent since 1973. Sprawl increases daily, wetlands disappear and special interests seek to undermine environmental protection to increase their short-term profits. The ESA needs to be in place to act as a balance. Perhaps the best example of why is found in two species that haven't recovered. The act was needed, but came too late, for the dusky seaside sparrow, a small bird found in the Cape Canaveral area. Its habitat was destroyed by unchecked coastal development in the 1960s; the last bird died in captivity in 1987. But the California condor may yet be saved. Captive breeding, field studies and identification and removal of toxic threats, along with the reintroduction of individual condors to Central and Southern California -- all mandated by the ESA -- are taking place to resurrect this bird. It's a victory in progress: Nearly 50 of these imposing and stately creatures are back where they belong, when only a decade ago, this bird was officially extinct in the wild. This is owing completely to the ESA. Why we would weaken a demonstrable success that has only positive benefits to wildlife and to the economy -- and to the health of us all - is something the act's enemies have a hard time defending convincingly. Earlier this month, a celebration played out on Capitol Hill in Washington. Lawmakers, conservationists and even wildlife came together to commemorate the 30th anniversary of the Endangered Species Act. They celebrated because it is a success. They the act is needed now more than ever. They celebrated because, when supported, the act does what it was designed to do: save species from extinction. Significantly, the wildlife representing proof of the act's effectiveness was a bald celebrated because eagle -- there thanks to the ESA. ESA is key to economy –empirical studies prove Scopp 5 David, Editor-in-Chief, U.S.F. Law Review, Volume 40, University of San Francisco of Law Review, 39 U.S.F. L. Rev. 789, Spring As Congress comprehended, preserving biodiversity positively impacts interstate commerce by providing valuable resources, as well as by contributing to the availability of ecosystem services. A rich variety of genes, species, and biological communities provide our economy with food, wood, fibers, energy, raw material, industrial chemicals, and medicines. 201 For example, a species' genetic information not only allows it to adapt to changing environmental conditions but is also used in genetic engineering to produce new types of crops, foods, and pharmaceuticals. 202 These contributions funnel billions of dollars into the world economy each year. 203 Furthermore, eco-tourism generates at least $ 500 billion per year worldwide. 204 Empirical evidence supports these contentions and shows that the ESA actually affects the national economy. In fact, an empirical study performed by a professor at Massachusetts Institute of Technology indicates that the listing of a species under the ESA may have a positive impact on the agricultural sector's performance. 205 Furthermore, another empirical study indicates that the critical habitat designation under the ESA may enhance recreational activities and economic development in other areas through the reallocation of water resources. 206 27 SDI 2009 Lopez CP Unpredictability DA 2ac The CP would be send a massive signal of unpredictability and confusion from the court Ford 5 Matthew Ford, Law Student at St John's University School of Law in New York. 9/15/05. ―John Roberts, Stare Decisis, and the Return of Lochner: An Impetus to Jump-Start the Labor Movement.‖ Mr. Zine Magazine, A Project of the Monthly Review. http://mrzine.monthlyreview.org/ford180905.html Our common law system is based largely on the idea of "stare decisis," the idea that the rulings of judges are generally binding. Such a system is designed to create continuity so as to send a signal to society about what sort of behavior society will or will not tolerate, to avoid confusion certain to arise if laws are constantly changing, and to diminish the likelihood of agitating society as a whole or creating a backlash by overturning laws that are widely valued. However, as Judge Roberts put it, "[S]tare decisis is not an inexorable command" ("Transcript: Day Two of the Roberts Confirmation Hearings," 13 September 2004). The Supreme Court can overturn precedent when it sees fit, or, in the words of Roberts, "You have to consider whether [precedent has] created settled expectations that should not be disrupted in the interest of regularity in the legal system" ("Transcript: Day Two of the Roberts Confirmation Hearings," 13 September 2004). If Roberts sticks to his word, large, Roberts has implicitly acknowledged that the overturning of such a key precedent as Roe v. Wade would likely lead to large-scale upheaval by the well-organized feminist movement that would shake society so forcefully that to even fathom overturning the ruling is to start trouble. well-organized, militant groups such as the Women's Rights Movement should find comfort in the fact that Legal certainty is key to the economy Roller 5 Lars-Hendrik Röller, European policy perspectives, 2005, Economic Analysis and Competition Policy Enforcement in Europe, http://ec.europa.eu/comm/competition/speeches/text/sp2005_011_en.pdf The second challenge to economics and economists in competition policy is legal certainty. Predictability and legal certainty are important aspects of competition policy law. There is real economic value to transparency and predictable procedures. Running a successful businesses is all about the ability to be forward looking. Management decisions about technology, markets, competitors are complex and determine the success or failure of companies. Increased regulatory uncertainty raises costs, threatens survival and potentially reduces economic growth. More generally, clarity and credibility are likely to increase the effectiveness of a policy. The effectiveness of an antitrust agency is not solely determined by the decisions that it takes. To a large extent, the impact of an antitrust agency can be attributed to the decisions that it does not have to take. Indeed, if competition rules were well understood, and the consequences of breaking these rules are reasonably unattractive, less antitrust action would indeed be needed. In this sense, the credibility of the antitrust agency is a significant determinant of its effectiveness. The challenge to economics is to ensure that economic analysis does not come at the expense of legal certainty and predictability. As John Vickers recently pointed out,24 legal certainty and economic principles are not substitutes but complements. In other words, given the current state of affairs, we can get more of both, in particular in the context of guidelines. By enhancing predictability and legal certainty guidelines contribute towards the effectiveness of competition policy. 28 SDI 2009 Lopez CP Unpredictability DA 2ac Nuclear war Friedberg and Schoenfeld 8 Aaron, professor of politics and international relations at Princeton University's Woodrow Wilson School, Gabriel, Visiting Scholar @ Witherspoon Institute, The Dangers of a Diminished America, WSJ, 10/21, Proquest Pressures to cut defense spending, and to dodge the cost of waging two wars, already intense before this crisis, are likely to mount. Despite the success of the surge, the war in Iraq remains deeply unpopular. Precipitous withdrawal -- attractive to a sizable swath of the electorate before the financial implosion -- might well become even more popular with annual war bills running in the hundreds of billions. Protectionist sentiments are sure to grow stronger as jobs disappear in the coming slowdown. Even before our current woes, calls to save jobs by restricting imports had begun to gather support among many Democrats and some Republicans. In a prolonged recession, gale-force winds of protectionism will blow. Then there are the dolorous consequences of a potential collapse of the world's financial architecture. For decades now, Americans have enjoyed the advantages of being at the center of that system. The worldwide use of the dollar, and the stability of our economy, among other things, made it easier for us to run foreignpolicy challenges are multiplying. The threat from al Qaeda and Islamic terrorist affiliates has not been extinguished. Iran and North Korea are continuing on their bellicose paths, while Pakistan and Afghanistan are progressing smartly down the road to chaos. Russia's new militancy and China's seemingly relentless rise also give cause for concern. If America now tries to pull back from the world stage, it will leave a dangerous power vacuum. The stabilizing effects of our presence in Asia, our continuing commitment to Europe, and our position as defender of last resort for Middle East energy sources and supply lines could all be placed at risk. In such a scenario there are shades of the 1930s, when global trade and finance ground nearly to a halt, the peaceful democracies failed to cooperate, and aggressive powers led by the remorseless fanatics who rose up on the crest of economic disaster exploited their divisions. Today we run the risk that rogue states may choose to become ever more reckless with their nuclear toys, just at our moment of maximum vulnerability. The aftershocks of the financial crisis will almost certainly rock our principal strategic competitors even harder than they will rock us. The dramatic free fall of the Russian stock market has demonstrated the fragility of a state whose economic performance hinges on high oil prices, now driven down by the global slowdown. China is perhaps even more fragile, its economic growth depending heavily on foreign investment and access to foreign markets. Both will now be constricted, inflicting economic pain and perhaps even sparking unrest in a country where political legitimacy rests on progress in the long march to prosperity. huge budget deficits, as we counted on foreigners to pick up the tab by buying dollar-denominated assets as a safe haven. Will this be possible in the future? Meanwhile, traditional None of this is good news if the authoritarian leaders of these countries seek to divert attention from internal travails with external 29 SDI 2009 Lopez CP Unpredictability DA – Link Extension Roberts has been clear that he won’t do anything crazy – plan makes him look inconsistent and unable to maintain legal stability and predictability Gerhardt 6 Michael J. Gerhardt, Distinguished Professor of Constitutional Law at the University of North Carolina at Chapel Hill School of Law. Minnesota Law Review, May, 2006. 90 Minn. L. Rev. 1204. ―THE FUTURE OF THE SUPREME COURT: INSTITUTIONAL REFORM AND BEYOND: Essay: Super Precedent.‖ Chief Justice Roberts was a model for avoiding pitfalls in the confirmation process. It is possible he may have been too good a model. He constantly espoused respect for precedent throughout his hearings. He may or may not have been a firebrand when he worked in the Office of the Attorney General, the White House, or in Office of the Solicitor General, but he was not a firebrand when he appeared in front of the Senate [*1228] Judiciary Committee. He no doubt understands that President Bush would love to see him not only vote as Chief Justice Rehnquist did but also move the Court further to the right. Yet, John Roberts the nominee accepted some judicial decisions inconsistent with that political agenda, including those recognizing a marital right of privacy, 98 the framework for analyzing separation of powers conflicts, 99 the constitutionality of the 1965 Voting Rights Act, 100 and heightened scrutiny for gender classifications. 101 Roberts even acknowledged Roe as "settled law," and recognized that overruling a precedent would be "a jolt to the legal system." 102 One has to assume that some overrulings would produce more of a "jolt" to the system than others, and some might fatally electrocute the system. While Chief Justice Roberts suggested it was not unthinkable for the Supreme Court to overrule settled law, he made abundantly clear that his philosophy of judicial modesty is grounded, at least in part, on respect for what came before. Roberts acknowledged that predictability, stability, consistency, and reliance are values to be taken into account in constitutional adjudication, and it would seem to follow that these values ought to count in most cases. 103 It further follows that there may be at least some instances in which the values promoted by fidelity to precedent become compelling. A Court that overrules too many precedents not only sets a bad example for the Courts that follow (because it provides no incentive to respect the work of its predecessors), but also signals permission for other branches to view its decisions with the same lack of respect with which it views them. A healthy respect for precedent means learning to live with decisions with which you disagree. When Roberts went further to describe himself as a "bottom-up" kind of judge, 104 he signaled that his inclination is to decide cases incrementally and to infer principles from the records of the cases below. A bottom-up judge is willing to learn from experience, which necessarily means that a good deal of our experience has to be left in tact. Even if there has been unpredictability in the past, the counterplan has a higher magnitude – it’s too soon after a new justice to have a drastic shift in federalims policy Padden 94 Amy, JD, NOTE: Overruling Decisions in the Supreme Court: The Role of a Decision's Vote, Age, and Subject Matter in the Application of Stare Decisis After Payne v. Tennessee., 82 Geo. L.J. 1689 Even though recent cases are not immune to being overruled, the change of one Justice's vote in a short period of time is not in itself sufficient reason to abandon a precedent. 199 Although the public may realize that overrulings rarely occur without changes in the Court's personnel, 200 the public is also familiar with the doctrine of stare decisis and views it as one of the mechanisms for preventing the Court from becoming a political branch of the government. 201 Therefore, a reversal fueled by a mere change in the Court's personnel is particularly damaging to the Court's image as a neutral decisionmaker. Overruling recent cases merely because they are recent is supported by no reasoned rationale. If it is merely due to the fact that the Court's personnel has changed, then the image of legal decisions as the product of reasoned elaboration fails. Because it is a Constitution that the Court is expounding, 202 a mere change in the expounders should not lead to rapid fluctuations in interpretations . 30 SDI 2009 Lopez CP Unpredictability DA – Link Extension Legal uncertainty kills business confidence Healy 1 Thomas Healy, Associate, Sidley Austin Brown & Wood, Washington D.C. Former Law Clerk to Judge Michael Hawkins on the United States Court of Appeals for the Ninth Circuit. West Virgina Law Review, Fall, 2001. 104 W. Va L. Rev. 43. ―STARE DECISIS AS A CONSTITUTIONAL REQUIREMENT.‖ The most frequent claim made on behalf of stare decisis is that it fosters certainty in the law. 498 By agreeing to follow established rules, the courts enable individuals to predict the legal consequences of their actions. 499 A person who writes a will according to accepted procedures can be confident that the courts will enforce that will after his or her death. Likewise, a corporation developing a new product can anticipate its liability for potential defects. This certainty is desirable in its own right: it satisfies a basic human need for security and stability. 500 Certainty also has instrumental worth. When individuals and businesses are able to predict the circumstances under which courts will enforce are more likely to engage in the kinds of activities that lead to a prosperous and productive society. By contrast, if courts routinely change legal rules, people will hesitate to risk their time and money in pursuit of goals that might ultimately be thwarted. contracts, impose tort liability, or extend the protection of bankruptcy laws, they Businesses are watching Roberts closely – predictability is key FT 6 Financial Times (London, England), June 29, 2006. ―The Supreme Court has been bad for business.‖ It is not that business wants every decision to go its way: many did this term, including an important ruling limiting securities class action lawsuits. The most important thing for corporate America is to know what the rules are: certainty - even the certainty of a loss - reduces litigation. Chief Justice Roberts has spoken of the need for judicial modesty: he thinks courts should not decide more than is necessary, and he is right. But what they do decide, they should do so clearly, if at all possible - or they risk deciding nothing at all. The court has plenty of time to rectify this situation in the term that begins in October: the justices have already agreed to hear critically important cases in the area of punitive damages, antitrust, patents and environmental regulation. As Miguel Estrada, a former Clinton administration lawyer, says, this Supreme Court seems willing to give the business community a hearing, but it is not clear yet whether they will also give business a break - or even more importantly, some answers to its questions. Even single decisions send an important signal to a close-watching public Calabresi 1 Steven, Professor of Law at Northwestern, Annals of the American Association of Political and Social Science, March the little that the Court does in cases like Lopez is better than no federalism enforcement at all. When the Supreme Court decides a big federalism case like Lopez, it does a lot more than simply resolve the immediate case and issue at hand. In some fundamental sense, it sets up a symbol for the American people of the importance that is attached to a constitutional value or norm. Symbolism is terribly important in constitutions and in constitutional case law. Symbols help citizens organize their beliefs, reinforce core values, and provide a rallying point for those who believe in them, thus reducing the costs of organization. When powerful symbols issue from the Supreme Court of the United States, those symbols help to set the national agenda, and they affect the flow of our politics. Lopez, for example, caused devolution and federalism concerns to become more prominent in Congress than they otherwise might have been. This may well have played into the last Congress's decision to devolve part of the federal welfare entitlement to the states. The public has always understood that symbolism is terribly important in law , a point that elites often have trouble I think it is reasonable to fear that the Court will do too little in enforcing federalism boundary lines because the Court is a nationalist umpire for national-state disputes. Nevertheless, I still think that remembering. It is for this reason that the public has never shared the hostility of intellectuals from John Stuart Mill down to most present-day social scientists to laws creating so-called victimless crimes. Underenforced, but symbolic, laws against drug use, like underenforced, important social purposes. They teach the public about the proper hierarchy of norms and values, and in legislative bodies they help to set the agenda for policymaking debates. but symbolic, federalism cases, serve 31