Neg - Degrowth FJG Supplement - Michigan 7 2023 BFHGR

Neg — States CP
Solvency---Generic---1NC
States solve the case!
Bloomberg ’21 [Scott; September 17; Associate Professor of Law, University of Maine School of Law; Social Science Research Network, “Frenemy Federalism,” Draft Manuscript, p. 2-40]
i. Uncooperative Federalism
Dean Heather Gerken and Professor Jessica Bulman-Pozen have categorized state legalization of marijuana as an instance of uncooperative federalism.108 In their influential 2009 essay, Uncooperative Federalism, Gerken and Bulman-Pozen observe that scholars had traditionally conceived of our system of federalism through one of two lenses. Under the “state autonomy” model of federalism, the states and the federal government are dual sovereigns who act as autonomous rivals, allowing states to act as dissenters to federal policies they deem undesirable. 109 In contrast, under the “cooperative federalism” approach, the states are like agents or servants of the federal government, dutifully carrying out a federal program to achieve a shared objective.110
Uncooperative federalism presents a third type of relationship between the states and the federal government, one that recognizes a principal’s or master’s dependence on their agents or servants, and the concomitant power of an embedded agent or servant to push back against their superior. 111 Sometimes, the states do not dutifully cooperate in administering a federal program, but actively seek to change or undermine that program. They are uncooperative.
Gerken and Bulman-Pozen identify three categories of state actions that constitute uncooperative federalism. The first is “licensed” dissent, which occurs when “Congress explicitly contemplates that states will deviate from federal norms in implementing federal policy, but states take that invitation in a direction the federal government may not anticipate.”112 State efforts to catalyze federal welfare reform provide an example. In the 1980s, states such as Wisconsin and Michigan utilized a waiver provision of the federal Aid to Families with Dependent Children welfare program (“AFDC”) to “recast an entitlement for poor families struggling to raise children into a temporary grant for recipients who would quickly move into the private workforce.”113 Departing from the existing federal policy, the states began enacting welfare-to-work requirements that required welfare recipients to actively seek employment and terminated AFDC benefits after a set period of time.114 These uncooperative states largely succeeded in changing federal welfare law when Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.115
The second form of uncooperative federalism occurs when states exploit gaps in federal regulatory schemes. In such cases, “the federal government does not contemplate state variation but states have sufficient discretion that they find ways to contest federal policy.”116 Gerken and Bulman-Pozen offer California’s efforts to regulate air pollution more stringently than the EPA as an example of this strain of uncooperative federalism. The state has successfully exploited a narrow exception to the Clean Air Act’s preemption provision to drive federal emissions standards for decades.117
The third, and “strongest,” form of uncooperative federalism is civil disobedience, where states “simply refuse to comply with the national program or otherwise obstruct it.”118 Gerken and Bulman-Pozen cite state pushback to the Patriot Act as an example. After Congress passed the Act, several states enacted resolutions that prohibited their agencies from assisting the federal government in enforcing the Act.119 This uncooperative action had real effect, as “the federal government relies on the states for enforcement assistance.”120
In early 2009, the federal-state relationship regarding marijuana fit within the uncooperative federalism framework, falling into the civil disobedience bucket.121 At that point, thirteen states had legalized medical marijuana, a costly blow to the federal government due to its dependence on the states for assistance in enforcing marijuana prohibition.122 The DEA, meanwhile, was “actively working to undermine the decriminalization efforts underway in California, the state with the most nationally visible decriminalization policy.”123 Indeed, federal prosecutions of individual medical marijuana users and marijuana businesses in California were commonplace in the early 2000s.124
ii. Increased Federal Cooperation
There is a great deal more cooperation in the federal-state marijuana relationship than there was when Gerken and Bulman-Pozen originally described it as uncooperative federalism. Since 2009, dozens more states have legalized medical marijuana and many have also legalized the drug for recreational use. In conjunction with these state policy changes, the federal government’s policy changed as well: It became far more cooperative with the states.
Though the federal government indisputably has the constitutional authority to prosecute marijuana businesses and users operating in states where marijuana is legal, over the years it has agreed – expressly at times and tacitly at others – to allow those businesses and users to avoid prosecution. This form of federal cooperation began with a series of DOJ memoranda instructing U.S. Attorneys not to prosecute marijuana businesses and users acting in compliance with state law.
In 2009, Deputy Attorney General David Ogden issued a policy memorandum to U.S. Attorneys titled “Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana.”125 The “Ogden Memo,” as it has become known, instructed U.S. Attorneys in states that legalized medical marijuana to deprioritize the enforcement of federal marijuana law against individuals who use medical marijuana in compliance with state law.126 As a result, the federal government stopped prosecuting medical marijuana users unless the user failed to comply with state law in a manner that implicated one of several “potential federal interest[s]” listed in the Ogden Memo.127
Solvency---Climate---1NC
State action solves climate best.
Jean Galbraith 17, Assistant Professor at University of Pennsylvania Law School, JD from the University of California-Berkeley School of Law, Order of the Coif, BA in Social Studies and the Comparative Study of Religion from Harvard University, “Book Review: Cooperative and Uncooperative Foreign Affairs Federalism, Foreign Affairs Federalism: The Myth of National Exclusivity”, Harvard Law Review, 130 Harv. L. Rev. 2131, Lexis
D. Climate Policy
Mitigating climate change is a challenge for all levels of government -- international, national, state, and local. As Glennon and Sloane note, some states and cities have embraced climate change mitigation measures (pp. 62-63). In doing so, states have often coordinated with each other and with foreign counterparts in both practical and [*2149] expressivist ways (pp. 62-63). California's efforts are exceptionally notable. State legislation requires sweeping emissions reductions; California and Quebec have sought to integrate their cap-and-trade programs; and California has spearheaded a coalition of state and local governments around the world who have committed to climate policy. California even sent a large and high-profile delegation to the United Nations conference on climate change in Paris in 2015.
The issue of climate policy is a rebuttal to all three of the "myths" identified by Glennon and Sloane. It is self-evidently a matter of both domestic and foreign affairs; states and local governments are acting in this space; and some states and local governments are doing so in progressive ways. The actions of state and local governments in this space invite constitutional inquiry. Can California constitutionally regulate carbon emissions, enter into a highly formalized agreement with Quebec and softer agreements with other subnational governments, and send delegations to international negotiating conferences?
Yet focusing exclusively on these questions would lead to a highly incomplete sense of the legal scope of California's power to act. For although Glennon and Sloane do not mention it, California is acting amidst a welter of federal laws, regulations, and other executive branch actions applicable to climate change. In 2007, in a lawsuit brought by liberal states against the EPA, the Supreme Court held that the federal Clean Air Act applies to greenhouse gas emissions. This Act explicitly delegates authority to California to pursue stronger emissions [*2150] measures for new motor vehicles than are undertaken at the federal level and in general involves states in the Act's enforcement through cooperative federalism.
During the Obama Administration, state and local government efforts to reduce greenhouse gas emissions were not only congruent with the aims of the Clean Air Act (as interpreted to apply to greenhouse gases), but also with the goals of the executive branch. The EPA during the Obama Administration applauded and sought to facilitate state and local efforts. Its leading rule on climate change mitigation measures, known as the Clean Power Plan, explicitly gave states substantial autonomy in crafting their own approaches, although this rule is currently facing a court challenge brought by states that oppose federal efforts to regulate emissions. The Obama White House expressed approval of the transnational coalitions that California and other state and local governments have joined in seeking to address climate change.
All this positive reinforcement will presumably diminish or disappear under the Trump Administration. The Trump Administration may even try to roll back climate change mitigation efforts by progressive states and cities, in addition to undermining or reversing Obama era regulations and international commitments. If it does so, however, the legal questions that such efforts would raise probably have fairly [*2151] little to do with the constitutional issues posed by traditional foreign affairs federalism. Instead, they would center on administrative law -- around the interpretation of the Clean Air Act and the laws and norms that govern regulatory practice -- as they had already come to do by the end of the George W. Bush Administration.
* * *
These four illustrations are far from unique. Sometimes state and local government activity in relation to foreign affairs occurs against a backdrop of federal inaction, as is the case with the incorporation of unratified human rights treaties into the municipal law of progressive cities. But interaction is far more common, sometimes cooperative and sometimes full of contestation. The executive branch approves of and provides some support for states and cities seeking to promote tourism or encourage exports abroad. The federal government collaborates with states in determining U.S. international negotiating positions with respect to insurance. In private international law, the federal government has shown strong interest in using state law rather than federal law to implement certain treaties. And all levels of government deal with security -- both traditional and cyber -- and interact with each other over it. To understand what is going on, we must focus on the political branches as much as (or even more than) the courts. And we must think not just in terms of constitutional law, but also in terms of international law, administrative law, and state law.
[*2152] III. COOPERATIVE AND UNCOOPERATIVE FEDERALISM IN THE CONTEXT OF FOREIGN AFFAIRS
As foreign affairs federalism becomes increasingly interactive, how much will it resemble cooperative and uncooperative federalism in the domestic context? At the very least, scholarship on cooperative and uncooperative federalism as a domestic matter, especially work focused on the political branches, provides a valuable starting point for understanding foreign affairs federalism today. This scholarship offers insights into how the federal government can incentivize state and local governments to help advance federal interests, how these state and local governments can in turn influence and resist federal policy, and how Congress and the executive branch can each use state and local action to build power at the expense of the other branch. These broad themes manifest themselves in the foreign affairs context as well. Yet the foreign affairs context brings some additional complexities because of its ties to international law and global governance and because it comes with stronger presidential powers. This leads to certain differences between cooperative and uncooperative federalism in the realm of foreign affairs, in terms of both how practice proceeds and of what doctrine should be.
A. Structural Implications
The interactions between the federal government and state and local governments in relation to foreign affairs mean that federal policy shapes state and local policy. By providing assistance, financial and otherwise, to the sister-cities program, the federal government makes it easier for cities to participate. By signaling its support for state "Buy American" laws, Congress encourages them -- and the Department of Transportation incentivizes them even further by refusing to participate in contracts governed by state "Buy American" laws that are less strict than the federal ones. In the context of immigration and climate change, the federal government incentivizes (and sometimes comes close to forcing) state and local action in support of federal policy. All of these examples in the foreign affairs context reflect an "increasing concentration of power at Washington in the instigation and supervision of local policies," just as cooperative federalism arrangements do in the domestic context.
In work focused on the domestic context, Heather Gerken shows that the interactive nature of modern federalism also provides state and local governments with ways to influence federal policy. State and local actors exercise "the power . . . of the servant," which offers the [*2153] chance "not just to complain about national policy, but to help set it." In shaping federal policy, these actors are not simply employing the traditional tools of process federalism; rather, it is their role in administering federal policy that gives them a say in the shape that this implementation will take. Yet the scope of this role also limits what they can do: "power dynamics are fluid; minority rule is contingent, limited, and subject to reversal by the national majority." In related work, Gerken and Jessica Bulman-Pozen elaborate on the ways in which state and local governments can engage in "uncooperative federalism," including by resisting federal policies that they are charged with enforcing.
Building on the core insight that state and local governments can help shape federal policy through their roles in implementing federal law, Bulman-Pozen further shows that these interactions can affect the distribution of power between Congress and the executive branch. In a pair of articles, she describes the ways in which state and local activities can strengthen the powers of one branch against the other. The more that Congress invites or effectively requires state and local participation in the administration of a federal statutory regime, the more these actors can serve as checks on the executive branch's power to implement this regime. On the flip side, such shared roles in implementing previously enacted statutory schemes can empower the executive branch and subnational executive actors to work together in ways that crowd out the current Congress.
[*2154] Similar dynamics can occur with respect to foreign affairs federalism. Indeed, some of the examples that Gerken and Bulman-Pozen focus on are issues that have transnational implications. With regard to climate, for example, they show how states have used the power of the servant to try to shape federal policy, including efforts by conservative states to push back against the federal regulatory scheme and by progressive states to make it stronger. Bulman-Pozen also uses climate as an example of how "federal and state executives negotiate without Congress" once a broad statutory scheme is in place. Some payoffs for the foreign affairs context here are simply derivative: the more that state and local governments enhance or reduce federal efforts to mitigate climate change, then the more or less the United States does with respect to addressing this global problem. But other implications relate specifically to how the United States engages internationally. Continuing with the climate context, the extent to which President Obama could make commitments on behalf of the United States during the negotiations for the 2015 Paris Agreement was largely limited by the scope of the Clean Air Act, since he had no realistic chance of getting new congressional legislation that would advance his goals with respect to climate. But since California and other progressive state and local actors were doing more than what the Clean Air Act required, President Obama could take this into account in setting the target to which the United States was committing with respect to climate change mitigation. President Obama's option set was thus enhanced by state and local action in the climate context.
Solvency---Environment---2NC
The only way to resolve warming is multi-scalar governance that depends on effective federalism
Craig Holt Segall 21, Visiting Assistant Scholar at UCLA Law and Visiting Lecturer at the University of Edinburgh Law School, 3/12/21, “Networked Federalism: Subnational Governments in the Biden Era,” Ecology Law Quarterly, https://www.ecologylawquarterly.org/currents/networkedfederalism/ /jpb
Subnational governments, working with non-governmental advocates, drove climate action during the Trump administration while rebuffing federal rollbacks. Under the Biden administration, focus may initially shift towards the federal government, but the subnational network is critical to continued progress on climate change. I use the term “networked federalism” to describe how a horizontal, interconnected, and polycentric collection of states, local governments, Tribes, and advocates provides the resilient frame needed to buttress national action. Indeed, this structure mirrors the successful structure of the Paris Agreement[1]—in which international action depends on subsidiary national contributions. A networked, federalist system of subnational climate action will be critical to continuing success, and should be nurtured and expanded. In this article, I discuss barriers to federal climate action under the Biden administration, trace the important role of subnationals in the climate movement, and lay out a policy agenda for strengthening subnational networks over the next four years.
I. Barriers to Federal Action Under the Biden Administration
Despite its climate focus, the Biden administration inherits a depleted civil service,[2] multiple crises from COVID-19 to economic depression,[3] and a hostile Supreme Court and federal judiciary.[4] In this context, subnationals on the side of climate action can be force multipliers—advancing policies, making markets, and occupying legal and civil space even if the federal courts intervene and the legislative process falters.
Such setbacks are likely: congressional direction may be slow in coming due to the undemocratic design of the U.S. Senate,[5] in which Jim Crow relics like the filibuster aggregate power in a Republican Senate minority that represents forty-one million fewer Americans than the thin Democratic majority.[6] Congress is unlikely to produce sweeping new legislature—though there will be opportunities for focused action[7]—and the judiciary is unlikely to countenance comprehensive regulatory efforts in its absence. Though some regulations will certainly survive, Trump appointments

Preview shortened. Download the file for the full document.