Uniqueness – US federalism strong now

New bipartisan consensus emerging on federalism.

But what if the real compromise isn't in forcing the left and the right to heel? What if instead the solution is to disempower the national elites who think they've got all the answers? Federalism, the process whereby you push most political questions to the lowest democratic level possible — to states, counties, cities, school boards — has been ripe on the right for years. It even had a champion in Texas Gov. Rick Perry, and Rep. Ron Paul (R-Texas) still carries that torch. Federalism is simply the best political system ever conceived of for maximizing human happiness. A one-size-fits-all policy imposed at the national level has the potential to make very large numbers of citizens unhappy, even if it was arrived at democratically. In a pure democracy, I always say, 51% of the people can vote to pee in the cornflakes of 49% of the people. Pushing government decisions down to the lowest democratic level possible — while protecting basic civil rights — guarantees that more people will have a say in how they live their lives. More people will be happy, and the moral legitimacy of political decisions will be greater. The problem for conservative and libertarian federalists is that whenever we talk about federalism, the left hears "states' rights," which is then immediately, and unfairly, translated into "bring back Bull Connor." But that may be changing. In an essay for the spring issue of Democracy Journal, Yale law professor Heather K. Gerken offers the case for "A New Progressive Federalism." Her chief concern is how to empower "minorities and dissenters." Not surprisingly, she defines such people in almost purely left-wing terms of race and sexual orientation. Still, she makes the very compelling point that the current understanding of diversity — including minorities as tokens of inclusion — pretty much guarantees that racial minorities will always be political minorities as well.

Uniqueness – AT: Obama legislation hurt federalism

Obama legislation hasn’t undermined federalism.

Gillian E. Metzger, Professor of Law, Columbia Law School, November 2011, “Federalism Under Obama,” William & Mary Law Review, pp.569-570

Rather than assertions of federal power at the expense of the states, the central dynamic evident under the Obama administration to date is more active government, at both the national and state level. States are given significant room to shape their participation in the new federal initiatives, as well as enhanced regulatory authority and expanded resources to do so. States that are eager to play a greater regulatory role and support the new federal policies therefore have much to gain. But states that choose to stay on the sidelines face the prospect of direct federal intervention or loss of access to substantial federal funds, and their ability to pursue their preferred regulatory (or deregulatory) strategies may be curtailed. Put differently, federalism under the Obama administration is federalism in service of progressive policy, not a general devolution of power and resources to the states. Some might dispute that granting states a role to play in advancing a policy agenda emanating from Washington represents federalism at all. At a minimum, the Obama administration experience puts front and center the debate over whether federalism has any principled, apolitical basis or is instead simply invoked when it serves to advance a favored political result. Yet this experience also suggests that, even in areas in which the national government has constitutional authority to set policy and federalism operates at best as a second-order concern, the result can still be substantial and potentially lasting protection of state authority.

Recent legislation hasn’t hurt state power – upholds critical state-level participation.

Gillian E. Metzger, Professor of Law, Columbia Law School, November 2011, “Federalism Under Obama,” William & Mary Law Review, pp.603-604

Whatever the reason, the central roles the states play mean that portraying these new federal measures as a zero-sum contest that the national government won and the states lost is false. Several scholars have argued that conceptualizing federalism in zero-sum terms, with the states and the federal government fighting over who gets to exercise authority in any given area, fundamentally misunderstands the overlapping and negotiated character of contemporary federal-state relations. The recent initiatives demonstrate this point, as their central characteristic is expanded authority at both the national and state levels. For many states the measures are empowering, granting them the authority and resources they need to undertake more effective reform and more aggressive enforcement. Perhaps as important, the imposition of minimum federal requirements protects states from having their regulatory initiatives undermined by interstate mobility and other states' more limited oversight. Undoubtedly, for those states that would prefer not to participate in the new federal initiatives, such as states that oppose the Medicaid expansion or assessing teachers based on student performance, the story is quite different. But the constraints these states feel is more a result of their disagreement with the administration's substantive policies and their reluctance to assume the new governance responsibilities being offered than an inherent characterization of these initiatives as assertions of national power

Health care legislation hasn’t undermined federalism.

Patrick Leahy, Chairman, Senate Judiciary Committee, 5/14/2012, “On Senate Floor,” http://www.leahy.senate.gov/press/press_releases/release/?id=f4da8848-e517-4b54-93a0-fe9d93c1a683

Even though this law easily meets the tests established by the Supreme Court’s own precedent on the limits of the Commerce Clause, partisan opponents of President Obama want judges to override these legislative decisions properly made by Congress, the elected representatives of the American people. They want to challenge the wisdom understood by generations of Supreme Court justices from the great Chief Justice John Marshall in upholding the constitutionality of the national bank nearly 200 years ago to Justice Cardozo in finding Social Security constitutional early in the last century. The outlandish examples of hypothetical laws that Congress has not passed reduce these matters to ridiculous absurdities. That may be popular in Federalist Society circles and on political blogs, but have no place in the Supreme Court’s determination. There may come a time when Congress passes a law that is law at the edge of its authority, when the boundary of what should be seen as affecting commerce needs to be more closely considered. This is not that case. The Affordable Care Act is squarely within longstanding constitutional lawmaking to deal with an important national problem.

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