The nature of federalism relationships in surface

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Unformatted text preview: ............................................ 13-14 1|Page Federalism DA Affirmative BDL Not Unique – Federal Power Growing [___] [___] Non-unique – Recent Supreme Court decisions have gutted federalism Richard Peltz-Steele, professor of law at UMass Law School Dartmouth, 2012 (Dismantling Federalism Is A Shortcut With A Very Steep Price, 7/08, Recent decisions from the Supreme Court delivered a one-two punch to American federalism. W hile media focus on the political impact of the immigration and healthcare decisions on the elections, our constitutional system is reeling from a blow of greater proportion. In the first high-profile decision, Arizona substantially lost its battle to maintain a state immigration enforcement system. The dispute arose from the gap between what the feds say and what they do, specifically the failure to police immigration to the satisfaction of Arizona taxpayers. The decision in Arizona v. United States was mostly about federal preemption of state law. And preemption law is notoriously fuzzy: “eye of the beholder” unfortunately charac terizes the Court’s approach. The majority saw the Arizona case as an instance of Congress so thoroughly “occupying the field” that no room remained for state law. Justice Thomas, in a concise dissent, reasoned that Congress had not precluded state law such as Arizona’s, which merely echoes federal law. Whatever one thinks of Justice Scalia’s dissent, he got the facts right. The difference between majority and dissenter perceptions turns in part on whether the President’s inaction in enforcing federal immigration law has preemptive significance. And certainly, as Scalia wrote, the Framers would have abhorred this result; the states always have cherished their borders. One columnist wryly noted that the Framers would not have signed a constitution abolishing slavery. True, but that deficiency of our Constitution was addressed through amendment. No amendment yet has erased state borders. Preemption always poses a fuzzy question, but the Court’s ruling against Arizona takes a bite out of state power. Expansive federal inaction was read to displace a traditionally sound exercise of state police power that only sought to complement federal law—as written. The states now seem more than ever at the mercy of the federal government and its deep pockets to decide what is and is not the province of the state electorate. So what local policy decisions will next take up residence between Capitol Hill and K Street? Healthcare, it seems. In NFIB v. Sebelius, the Court substantially upheld the national healthcare initiative advanced by the President, including the controversial individual mandate. The Court majority rejected the mandate as an exercise of Commerce Clause power. But leaving academic jaws agape, the majority capitalized on a marginal, throw-it-at-the-wall-and-see-if-it-sticks Govern...
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This document was uploaded on 02/06/2014.

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