Ddi 12 ss disabilities Neg Dartmouth 2012 Andrew 1 ddi 12 ss disabilities Neg Strategy Sheet



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2NC AT: Rollback

The Court can give power to the states –no rollback

Miller, 98

(Mark Miller, Lawyer for Baker Botts, 1998, Cleveland State L. Rev)



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.



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