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- A2: Drop in the Bucket
- Small decisions are the greatest threat
Link HelpersZero-SumFederalism is a zero-sum gameCallen 11, Zachery Callen, “Congress and the Railroads : Federalism, American Political Development, and the Migration of Policy Responsibility,” Sage Journals, 11/23/2011, http://apr.sagepub.com/content/40/2/293.full.pdf+html, FM The federal government gained responsibility over a range of new policy areas, each of which greatly expanded the national state’s power to control its territory. Significantly, this growth in national power was not solely the result new state powers being invented from whole cloth. Rather, the expansion of national power consistently resulted from shifts “in governing authority” Specifically, the 19th-century state building resulted from changes in American federalism, with local issues shifting upward to become congressional responsibilities that increasingly served national ends.1 A2: Drop in the BucketEvery decision matters—the threat is incrementalLack ’95 (James, Senator – 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. Slippery Slope- Implementing federal programs through states leads to federal commandeering of state governments, also violates court rulingsSomin 2 Ilya Somin, Ph.D. Candidate, Department of Government, Harvard University; J.D., Yale Law School, 2001; M.A., Harvard University. Georgetown Law Journal, “Closing the Pandora’s Box Federalism: The Case for Judicial Restriction of Federal Subsidies to State Governments,” January 2002 FM The danger of federal control over state legislatures and executive bureaucracies is the touchstone of the Supreme Court's anticommandeering decisions, New York v. United States and Printz v. United States. In these cases the Court established the principle that "the Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs." Federal commandeering of state governments is condemned because it takes control of state bureaucracies away from their own governments and "reduces [them] to puppets of a ventriloquist Congress." According to the Court, Congress "may not conscript state governments as its agents." Small decisions are the greatest threatLebow ’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, 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: "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 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.
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