Balance Updates - Michigan 2024 BEJJKP

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Federalism CP
Federalism CP---2AC
Congress will say no.
Huq ’17 [Aziz; January 2017; Frank and Bernice J. Greenberg Professor of Law at the University of Chicago Law School; George Washington Law Review, “Preemption Deals: Response to Robert Mikos,” vol. 85]
II. Can States Preempt Federal Preemption with Poison Pills?
Assume for now that the baseline question has been settled, and we are agreed that there is too much preemption. Let us turn instead to the heart of Mikos's proposal and ask whether the PPP would achieve his end of promoting a larger freedom for state regulation, which in turn would yield a more desirable regulatory regime "from a welfarist perspective." 64 As much as I admire the innovation and thought underwriting the PPP proposal, I will develop three grounds for concern. All three take up, in different ways, questions of where and how Coasean bargaining over regulatory entitlements occur. These concerns set the stage for a reconsideration of when institutional bargaining can or cannot succeed in Part III.
A. Timing and Coordinating PPPs
My first pair of concerns are surfaced by asking where "the state can trade its entitlement not to pass or enforce a law for Congress's entitlement to preempt state law." 65 Mikos identifies two potential forums. First, such deals would be reached in Congress, 66 and second, PPPs could inflect judicial constructions of the preemptive shadows of federal legislation. 67 (What about federal agencies? Mikos does not flag them as promising forums, although he briefly touches on state bargaining with the Justice Department. 68 I will come back to their potential in a moment). The first two reasons for resisting PPPs relate respectively to the timing and coordination obstacles to legislative dealmaking, and to judicial consideration. In contradistinction to Mikos's focus on the realization of Coasean deals, they both dwell on the possibility of derailing transaction costs. 69
Focus first on how PPPs would play out in the environment of legislative negotiations. 70 Imagine a potentially successful congressional coalition seeking to enact a federal statute with preemptive effect. To influence that law, state legislatures must be aware of the measure, and be capable of forming a timely response. But I am not sure it is plausible to assume that states are consistently aware of the consequences of preemptive language in federal bills, especially if such effect is implied rather than express. Scholars have expressed concern that even unfunded federal mandates fail to catch states' attention, and states' opposition to such burdens founder even though there is a federal statute that enables members of Congress to raise alarms about some fiscal spillovers. 71 Unlike unfunded mandates, preemption does not trigger special legislative-process rules. Hence, it seems reasonable to infer that the identification of preemptive legislation somewhere in the mass of federal legislation enacted each year will be a costly and difficult enterprise. If states are represented by a powerful and well-connected lobby, with ample connections to Representatives' and Senators' offices, that might flag forthcoming preemptive measures, this might not be a great concern. But if you are skeptical of the strength of the intergovernmental lobby--as Mikos professes to be 72 --you should also be leery of the idea that states will be able to anticipate regulatory threats far down the congressional pike.
This identification issue, though, is perhaps the most trivial of the barriers to effective bargaining over PPPs. There is also a timing problem that is of substantial concern. Many state legislatures have brief annual sessions. 73 They are as a result not set up either to monitor constantly what happens in Washington, or to respond in an expeditious fashion.
Even more worryingly, coalitions of states with varying concerns over different sorts of federal preemption face impressive coordination problems. States have a variety of regulatory priorities. Officials in some states care deeply about drug safety. 74 Others, by contrast, are preoccupied by the costs of federal immigration enforcement levels. 75 Differences in regulatory priorities from state to state are compounded by the fact that some federal regulation is enacted at the behest of state coalitions in order to mitigate adverse spillovers from other states' policy choices 76 (or, more sinisterly, to preserve anticompetitive advantages 77 ). Where concern for interstate spillovers fuels federal legislative intervention, it is inevitable that states will sharply disagree about the scope of needful preemption. Without some robust institutional structure through which states coordinate and resolve these motivational conflicts--which, again, Mikos has dismissed as implausible 78 --how is the bargaining with Congress that PPPs are supposedly enabling to get off the ground?
The same worry emerges when we flip our perspective to focus on how Congress would respond to PPPs. To get Mikos's model of Coasean bargaining off the ground, we have to assume federal legislators (or their staff) first know about PPPs. 79 We must further assume they object to PPPs' practical effects, rather than being indifferent 80 or welcoming them. The latter is not a safe assumption given sharp divisions today among legislators over whether specific cooperative federalism programs are appropriate. Imagine here, for example, current House Speaker Paul Ryan's response to a state threat to stop implementing Obamacare. Finally, we must assume that Congress as a body is capable of aggregating the effects of different states' PPPs--which might tether different preemption measures to a variety of cooperative federalism programs--so as to reach a rational, even accurate result. 81 Depending on the extent of one's skepticism about the contemporary Congress's rationality and epistemic capabilities, this assumption might seem, at best, demanding and, at worst, absurd.
AND courts will preempt.
Bebchuk ’14 [Lucian and Robert Jackson; October 2014; William J. Friedman and Alicia Townsend Friedman Professor of Law, Economics, and Finance and Director of the Program on Corporate Governance, Harvard Law School; Professor of Law at Columbia Law School; Columbia Law Review, “Toward a Constitutional Review of the Poison Pill,” vol. 114]
We show that the cases in which the federal courts have evaluated the constitutionality of state antitakeover statutes raise serious questions about the validity of the state-law rules authorizing the use of the poison pill. The Essay presents a systematic analysis of the possibility that these rules are preempted by the Williams Act and provides a framework for assessing preemption challenges to those rules. Litigation over the validity of these rules, we show, could have profound implications for the governance of American corporations.
The literature on the constitutionality of state antitakeover laws is quite substantial. Indeed, more than one hundred law review articles have considered whether and how the Williams Act might preempt various state statutes that govern corporate takeovers. 4 Just four years ago, the Business Lawyer dedicated a symposium issue to analysis of whether the Williams Act preempts Delaware's business-combination statute. 5 Yet [*1552] this large literature has paid limited attention to the question whether the state-law rules with the most powerful antitakeover effect--the rules authorizing use of the poison pill-are preempted.
In this Essay, we systematically analyze this question and conclude that there is substantial doubt as to whether current state-law poison-pill rules are valid. As we explain, these rules provide incumbents with an even more powerful antitakeover defense--and impose an even lengthier delay on tender offerors--than the state statutes that the federal courts have held to be invalid. The validity of state-law poison-pill rules thus should not be taken for granted, and we provide a framework for analyzing preemption challenges to these rules.
Using this framework, we discuss three alternative approaches that the federal courts may follow when faced with preemption challenges to the validity of state-law rules governing poison pills. This analysis shows that the courts are likely to conclude that existing state-law poison-pill rules are preempted. This Essay also examines what changes in existing state-law rules might make them more likely to survive constitutional scrutiny. We show that state corporate law that substantially limits the length of time during which a poison pill can be used to delay tender offers would be significantly more likely to withstand a preemption challenge than current state-law rules in this area.
The abnormal process wrecks the signal---the world sees it AND is confused---global war.
Ikenberry ’15 [John; 2015; PhD in Political Science from the University of Chicago, Albert G. Milbank Professor of Politics and International Affairs at Princeton University in the Department of Politics and the Princeton School of Public and International Affairs; Korean Attitudes Toward the United States: Changing Dynamics, “Getting Hegemony Right,” p. 17-18]
A critical ingredient in stabilizing international relations in a world of radical power disparities is the character of America itself. The United States is indeed a global hegemon, but because of its democratic institutions and political traditions it is--or can be--a relatively benign one. Joseph Nye's arguments on "soft power" of course come to mind here, and there is much to his point. But, in fact, there are other, more significant aspects of the American way in foreign policy that protect the United States from the consequences of its own greatness.
When other major states consider whether to work with the United States or resist it, the fact that it is an open, stable democracy matters. The outside world can see American policymaking at work and can even find opportunities to enter the process and help shape how the overall order operates. Paris, London, Berlin, Moscow, Tokyo and even Beijing--in each of these capitals officials can readily find reasons to conclude that an engagement policy toward the United States will be more effective than balancing against U.S. power.
America in large part stumbled into this open, institutionalized order in the 1940s, as it sought to rebuild the postwar world and to counter Soviet communism. In the late 1940s, in a pre-echo of today's situation, the United States was the world's dominant state--constituting 45 percent of world GNP, leading in military power, technology, finance and industry, and brimming with natural resources. But America nonetheless found itself building world order around stable and binding partnerships. Its calling card was its offer of Cold War security protection. But the intensity of political and economic cooperation between the United States and its partners went well beyond what was necessary to counter the Soviet threat. As the historian Geir Lundestad has observed, the expanding American political order in the half century after World War II was in important respects an "empire by invitation." The remarkable global reach of American postwar hegemony has been at least in part driven by the efforts of European and Asian governments to harness U.S. power, render that power more predictable, and use it to overcome their own regional insecurities. The result has been a vast system of America-centered economic and security partnerships.
Even though the United States looks like a wayward power to many around the world today, it nonetheless has an unusual ability to co-opt and reassure. Three elements matter most in making U.S. power more stable, engaged and restrained. First, America's mature political institutions organized around the rule of law have made it a relatively predictable and cooperative hegemon. The pluralistic and regularized way in which U.S. foreign and security policy is made reduces surprises and allows other states to build long-term, mutually beneficial relations. The governmental separation of powers creates a shared decision-making system that opens up the process and reduces the ability of any one leader to make abrupt or aggressive moves toward other states. An active press and competitive party system also provide a service to outside states by generating information about U.S. policy and determining its seriousness of purpose. The messiness of a democracy can, indeed, frustrate American diplomats and confuse foreign observers. But over the long term, democratic institutions produce more consistent and credible policies--policies that do not reflect the capricious and idiosyncratic whims of an autocrat.
Federalism CP---Say No---1AR
They’ll slash funding or lash out with tax reform---that devastates state resistance.
Polimedio ’18 [Chayenne and Elena Souris; February 27; M.B.A. Candidate at the University of North Carolina at Chapel Hill, fellow at the Political Reform Program at New America; Vox.com, “Why federalism is hard,” https://www.vox.com/polyarchy/2018/2/27/17058498/federalism-hard]
The threat of losing federal funding can make states reform-shy
Despite the autonomy states enjoy due to decentralized government, they’re not always immune to retaliation if they choose to go against the federal government. States’ refusal to comply with and direct challenges at federal law can have serious and lasting consequences for states. Sanctuary cities, for example, have been threatened with losing crucial federal funding if they don’t comply with immigration guidelines.
Another unique aspect of American federalism is the difference between state and federal budgeting and funding. While the federal government can operate in a deficit, 49 state governments can’t (Vermont is the only clear exception). Additionally, unfunded mandates from the national level put financial pressure on states, and new tax reforms could have major consequences for high-tax states like California, Connecticut, New Jersey, and New York.
Already, as Harold Meyerson at the American Prospect explains, states are the “primary funders of education, transportation, local infrastructure, and public safety.” As a result, states quickly feel economic strain, meaning that any tough decisions could target new reforms like public financing first.
They can condition overwhelming financial leverage AND the attempt blows up federalism.
Tau ’20 [Byron; April 14; Reporter in the Wall Street Journal’s D.C. Bureau, covering the Justice Department and FBI; Wall Street Journal, “Trump’s Legal Authority to Overrule Governors on Coronavirus Is Limited,” https://www.wsj.com/articles/trumps-legal-authority-to-overrule-governors-on-coronavirus-is-limited-11586891577]
What the president does have is the significant resources of the federal government at his disposal—which could be used as leverage to force compliance from state governments or companies. During the pandemic the federal government has control over disaster-relief funds, some medical equipment for states and billions in aid to businesses and individuals.
Mr. Trump has hinted on Twitter that some of that future federal assistance may be conditioned on fealty to federal policy—though such a step would undoubtedly provoke litigation where there is very little case law to guide courts.
Mr. Trump tweeted Tuesday, referring to Andrew Cuomo, the Democratic governor of New York: "Cuomo's been calling daily, even hourly, begging for everything, most of which should have been the state's responsibility, such as new hospitals, beds, ventilators, etc. I got it all done for him, and everyone else, and now he seems to want Independence! That won't happen!"
"Tell the Democrat Governors that "Mutiny On The Bounty" was one of my all time favorite movies. A good old fashioned mutiny every now and then is an exciting and invigorating thing to watch, especially when the mutineers need so much from the Captain," Mr. Trump added, referring to a film depicting a revolt by officers on a British warship that occurred in 1789.
If Mr. Trump were to carry through on threats to withhold federal assistance from noncompliant states, he would likely provoke a constitutional showdown that was more the hallmark of relations between Washington and the states in the 18th and 19th centuries.
"To say to states like California or New York, you're not getting another penny of federal disaster money if you leave these shelter-in-place orders in place? I mean, that's just going to provoke a federalism fight the likes of which we've never seen before," said Stephen Vladeck, a professor at the University of Texas School of Law.
States will be totally ignored AND sheer gridlock causes ‘say no.’
Lowery ‘8 [David, Virginia Gray, and Frank Baumgartner; August 2008; Department of Public Administration at the University of Leiden; Department of Political Science at the University of North Carolina at Chapel Hill; Department of Political Science at Pennsylvania State University; Paper for the Annual Meeting of the American Political Science Association, “Policy Attention in State and Nation: Is Anyone Listening to the Laboratories of Democracy?” https://fbaum.unc.edu/papers/apsa_08_Lowery_Gray_Baumgartner.pdf]
State Influence on the National Agenda
Let us start with the null hypothesis that state policy activity and the content of the Congressional hearing agenda may well be unrelated to each other. Or rather, given the findings by Baumgartner, Gray, and Lowery (2009) that national attention to issues does influence policy activity in the states, the relevant null hypothesis is that the converse may not be true. Certainly, despite ever more rapid diffusion of policy innovations, not all states focus on the same issues at the same time (Gray et al. 2005). Thus, it is not obvious that the states as whole might influence the national policy agenda in a systematic manner. And even if state agendas moved together in lockstep, much of what attracts the attention of state legislators may well not be what concerns their national counterparts. This would be especially true for a number of issues that are mainly influenced by national policy or on the other hand mainly by state policy. State attention to corrections policy, for example, may be partly related to federal concerns, but the states are the primary force behind corrections policy whereas the federal role is very limited. The reverse is true with regard to other policies of broader national concern, such as nuclear proliferation. Thus, different policy areas of concern to the states feature more or less involvement of the federal government. This might well suggest that, at best, we should expect a more limited impact of state policy activities on the distribution of federal attention to issues in those areas where the states play relatively little role. And last, given Baumgartner and Jones’ (1993) punctuated equilibrium model, legislative agendas are quite sticky, changing only periodically and with some difficulty. If so, then it is not clear that the national policy agenda would respond in anything close to a contemporaneous manner to activity at the state level. For example, the collapse of President Clinton’s national health care proposal in 1994 arguably did lead to greater state attention to health care, but this developed rather slowly over several years as the realization that the national government was, at least for a time, out of the health care game (Gray, Lowery, and Godwin 2007a; 2007b). In sum, there are plenty of good reasons to not expect to find a strong relationship between levels of state policy attention and such attention at the national level.
Federalism CP---Say No---Ext
The fed’s well-positioned to quash resistance.
Gardner ’19 [Trevor; 2019; Assistant Professor of Law at the University of Washington School of Law; Florida State Un

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