Varsity-Packet-Final

S infrastructure investment april 2012

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Unformatted text preview: center. As Lynn Baker and I have discussed elsewhere, Madison's discussion in Federalist 46 emphasized worst case scenarios, in which the states would have to oppose the national government militarily, and this emphasis has sometimes distracted critics of federalism from more prosaic - but also more relevant - mechanisms by which federalism protects liberty. Even in the Founding period, however, state autonomy buttressed individual liberty in other, less dramatic ways. States may oppose national policies not only militarily but politically, and in so doing they may serve as critical rallying points for more widespread popular opposition. Madison and Jefferson, out of national power during the Federalist administration of John Adams, worked through the Virginia and Kentucky legislatures to oppose the Alien and Sedition Acts. The states thus, as Professor Friedman puts it, "serve as an independent means of calling forth the voice of the people." More recently, "Some state and local governments have proven themselves formidable lobbyists and indefatigable litigants" on issues such as affirmative action, benefits for the disabled, and environmental policy 5|Page Federalism DA BDL Uniqueness – Federal Power Restrained Now [___] Health care decision promotes federalism now Forbes, 2012 (June 29, http://www.forbes.com/sites/daviddavenport/2012/06/29/federalisms-silver-lining-in-thehealthcare-decision/) But the 193-page U.S. Supreme Court opinion on the constitutionality of the healthcare reform bill does actually leave conservatives, and especially those concerned about states’ rights and federalism, some room for encouragement. In fact, one could argue that conservatives won all the major constitutional battles in this case but, thanks to some deft footwork by Chie f Justice Roberts, still managed to lose the war. The big constitutional questions in this case were whether there are any limits to the federal government’s power under the Commerce Clause and the conditional spending power and, to each of those questions, a strong majority of the Court said “yes,” and moreover, held that Congress’ actions in this case exceeded those limits. [___] The Supreme Court has recently limited the federal government’s power to force the states to take action Forbes, 2012 (June 29, http://www.forbes.com/sites/daviddavenport/2012/06/29/federalisms-silver-lining-in-thehealthcare-decision/) But of even greater practical significance was the Court’s holding that the federal government had, through its conditional spending power, unconstitutionally coerced the states into bending their Medicaid programs to the preferences of Congress. The last major Supreme Court decision in this area, South Dakota v. Dole in 1986, addressed a state complaint that the federal government overstepped its authority when it said South Dakota would lose federal highway money if it did not raise its legal drinking age to 21. Since the federal government has no constitutional power to set the legal drinking a...
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