school state vs government

1. Uniqueness overwhelms — the plan’s not sufficient. Their Roberts ev cites broader trends brought on by Trump. State control on education policy is inevitable — informal powers. Gerken 15 —Heather K. Gerken, J. Skelly Wright Professor of Law at Yale Law School, former Professor of Law at Harvard Law School, holds a J.D. from the University of Michigan Law School, 2015 (“Federalism and Nationalism: Time for a Détente?,” Saint Louis University School of Law, Vol. 59, No. 997, September 4th, Available Online to Subscribing Institutions via SSRN, Accessed 06-26-2017, p. 1014-1018, Lil_Arj) In many ways, this mistake coincides with the larger error made by scholars of federalism. Because they look only to formal markers of power, they miss what one might call the “hydraulics” of state power. Even as federal schemes intrude on what were once largely state domains, the states have found ways to assert their power informally through networks and informal relationships and mutual dependence. Our politics have become nationalized, and yet states still play a vibrant role in national politics.61 The federal government has extended its statutory reach into traditional state domains like crime and healthcare, and yet states still find a way to exercise influence through channels that are less legible to law professors but no less important to policymakers.62 These broad points hold true in another traditional area of state concern: education. There has been a huge brouhaha over the “federalization”63 of [End Page 1014] education policy due in large part to No Child Left Behind (NCLB)64 and recent battles over the Common Core.65 But the mistake made by those who mourn the “federalization” of education policy was to think that function would follow form. Despite the expanded reach of federal education policy, the states remain the dominant force in primary and secondary education. That’s because, notwithstanding the federal government’s formal exercise of authority, it has run up against just the sort of administrative and political obstacles that would be instantly recognizable to the new nationalists. NCLB, for instance, unquestionably altered the administrative structures in which schools operated.66 But states quickly took advantage of the discretion afforded to them in this cooperative federal regime to duck federal constraints by setting testing standards so low they were guaranteed to meet them.67 In the wake of NCLB’s passage, the federal government attempted to put teeth into the Act’s regulations68 only to encounter pragmatic resources barriers [End Page 1015] (specifically a lack of state capacity)69 as well as massive state resistance.70 Because the federal government provides only limited funding71 and plays a circumscribed role in the education arena, it depended heavily on state and localities to carry out its policies. Unsurprisingly, then, state resistance and regulatory evasions eventually forced the Bush administration to give out so many waivers that it effectively gutted large swaths of NCLB.72 The Obama Administration has spent a fair amount of political capital pushing back against the pushback. It has been using a combination of federal [End Page 1016] grants73 and waivers74 to move toward some modest level of standardization in states’ education curricula through the Common Core Standards (a goal that today’s political environment has prevented President Obama from achieving via formal legislation).75 It’s worth noting, however, that the Common Core Standards themselves emerged from a state-led process.76 Moreover, even as the federal government spends some of the political capital necessary to extend its reach, the Common Core’s day-to-day implementation is still being carried out by states and localities, and considerable state and local variation remains.77 While it is too early to offer a final assessment of the success of the [End Page 1017] Obama Administration’s efforts to influence education policy, it is clear that states and localities retain their dominant role in education policy. Moreover, given that “[a]lmost everything that matters” about the Common Core “depends on what happens next—in other words, on implementation,”78 it’s hard to imagine that the states and localities implementing the program are going to lose their sway in the future. Implementation, after all, is precisely where the power of the servant is at its zenith. 2. No UQ Trump says he wants state control of education but he’s expanding the federal government’s role more than ever – Common Core, school choice, and merit pay Hiler and Hatalsky 16 (Tamara, M.A. in Public Policy & Administration, Senior Policy Advisor for Education at Third Way, Lanae Erickson, J.D., member of President Obama's third Advisory Council on Faith-Based and Neighborhood Partnerships, Legislative Counsel at Alliance for Justice, Vice President for the Social Policy & Politics Program at Third Way, 9.13.16, Third Way, “Trump’s Big Government Takeover of Education,” http://www.thirdway.org/memo/trumps-big-government-takeover-of-education, Accessed: 6.22.17)VW With 60 days left before the presidential election, Donald Trump finally released his plan for our nation’s schools. Quizzically, it consists entirely of federal mandates that would require throwing out the new law Congress passed last year to overhaul No Child Left Behind, which garnered wide bipartisan support (359 to 64 in the House and 85 to 12 in the Senate). In fact, if taken seriously, Trump’s proposals could give the federal government more power to override the wishes of states and local communities than anyone in the Bush or Obama Administrations ever considered in their wildest dreams. There are three major policies Trump promises he would implement from the top down, forcing every state, district, and school across the nation to comply. 1. “End Common Core.” The most extensive and oft-repeated education proposal coming from Donald Trump on the campaign trail has been his plan to “repeal” the Common Core State Standards (CCSS) because, as he says, “it’s a total disaster.”1 But the federal government plays no role in Common Core. The National Governors Association and the Council of Chief State School Officers led that effort to create a set of uniform math and reading standards as a way to ensure that every child graduates from high school college- and career-ready regardless of the state where they live or how many times they move during the course of their education.2 Today, 42 states and the District of Columbia have voluntarily adopted the Common Core State Standards because they want to ensure that children in their local schools are being held to a consistent and high standard of academic learning.3 Donald Trump says he “wouldn’t let it continue” if he were elected president. To actually accomplish that goal and force 42 states and DC to change their standards, Trump would have to convince Congress to repeal the education law it just passed last December—a law that more than 80% of both the House and the Senate supported. That law explicitly prohibits the federal government from meddling in a state’s ability to select educational standards, including the Common Core State Standards, which are explicitly mentioned by name as an area where the federal government has no business interfering.4 Those provisions were included almost by acclamation in the new law, as policymakers across the political spectrum think the choice of standards should be a state and local decision. Apparently, Trump is in the minority on this one. 2. “Help Parents Send Their Kids to a Safe School of Their Choice.” In addition to his edicts around Common Core, Donald Trump’s latest proposal focuses heavily on increasing “school choice.”5 Specifically, a press release on Trump’s website (which is the full extent of his current education plan) proposes to create a $20 billion grant program that would allow “every disadvantaged child to be able to choose the local public, private, charter, or magnet school that is best for them and their family.” In addition to the $20 billion he expects the federal government to allocate towards this mission, an amount equal to about a third of the budget of the Department of Education, he also expects states to pony up an additional $110 billion of their own funding—a brazen demand given that only 13 states have even been able to restore per-pupil spending to pre-recession levels.6 To put the scale of this mandate into perspective, the Obama Administration’s entire Race to the Top program, which incentivized states to make changes to their education systems and was maligned by many on the right as federal government overreach, cost the federal government a total of $4.35 billion.7 Trump plans to spend more than four and a half times more to induce states to broaden voucher and other school choice programs, and he expects those states to chip in 25 times more than the federal government spent on Race to the Top to carry out his plan. Trump would not only be enforcing his will unilaterally on states through this proposal but also imposing a policy that was explicitly rejected by Congress just last year. The newly passed No Child Left Behind overhaul rejected these “let the money follow the kid” arguments because such policies divert limited resources away from the poorest schools and place them in more affluent ones, including directly transferring money out of the public school system and into wealthier private schools.8 So not only would this component of the Trump plan compel states to empty their education coffers according to his wishes, it would also override the considered judgement of a Republican-controlled Congress. 3. “Institute Merit Pay and Get Rid of Tenure.” Lastly, Donald Trump threw in a new, third component to the end of his education plan: to “support merit-pay for teachers, so that great teachers are rewarded instead of the failed tenure system that currently exists.”9 The specifics for how Mr. Trump would like to accomplish this goal are absent from this vague, one-line statement, but it is clear that any federal effort to move to merit pay systems and eliminate tenure would have to involve another major expansion of the federal government’s role in education. Teacher compensation and tenure policies are determined either at the district or state levels, and while some states have been moving to modernize their compensation structures in recent years, only two states in the nation have no teacher tenure laws whatsoever on the books.10 In addition, in order to implement a merit pay system, you must first be able to evaluate teacher performance in the classroom. But requiring states to implement a rigorous teacher evaluation system was also explicitly prohibited by Congress when it replaced No Child Left Behind last year.11 This means the only way Trump could force states to move to merit pay or abolish teacher tenure would be to pressure Congress to pass a new law allowing the federal government to dictate state and local teacher compensation policies, or to simply act in defiance of current law which bars the federal government from doing exactly that. This Trump edict could also require the federal government to step into local districts and renegotiate teacher contracts on a district-by-district basis—or simply pass a law to void those contracts entirely (which could arguably be unconstitutional). Either way, to carry out this plan, a Trump administration would need to significantly expand the reach of the federal government and ignore state and district decisions about how best to run their local schools. Those who complained about federal overreach under Presidents George W. Bush and Obama should gird their loins. Conclusion The Republican nominee wants to dictate from Washington that states massively overhaul their standards, vastly increase their spending, and upend their compensation and tenure systems. These are all decrees that Members of Congress from both sides of the aisle have already wholeheartedly rejected. And implementing this massive federal takeover of education policy would be complicated even further if Trump truly “cuts the Department of Education”—a statement he has haphazardly thrown around on the campaign trail.”12 Despite Donald Trump’s claims that he would like to return education to the local level, there is nothing small-government about his current slate of policy proposals. In fact, if taken seriously, each of his three policy planks alone represents a broad expansion of the federal government’s power that would be the envy of any big government liberal. 3. No UQ DeVos has flipped her promises of state control – she’s supporting expansive federal action Green 7/7 (Erica L., M.S. in Journalism, Education Reporter at The New York Times, 7.7.17, The New York Times, “DeVos’s Hard Line on New Education Law Surprises States,” https://www.nytimes.com/2017/07/07/us/politics/devos-federal-education-law-states.html?mcubz=1&_r=0, Accessed: 7.14.17)VW Education Secretary Betsy DeVos, who made a career of promoting local control of education, has signaled a surprisingly hard-line approach to carrying out an expansive new federal education law, issuing critical feedback that has rattled state school chiefs and conservative education experts alike. President Barack Obama signed the Every Student Succeeds Act in 2015 as the less intrusive successor to the No Child Left Behind law, which was maligned by many in both political parties as punitive and prescriptive. But in the Education Department’s feedback to states about their plans to put the new law into effect, it applied strict interpretations of statutes, required extensive detail and even deemed some state education goals lackluster. In one case, the acting assistant secretary for elementary and secondary education, Jason Botel, wrote to the State of Delaware that its long-term goals for student achievement were not “ambitious.” “It is mind-boggling that the department could decide that it’s going to challenge them on what’s ambitious,” said Michael J. Petrilli, the president of the conservative-leaning Thomas B. Fordham Institute, who worked in the Education Department under President George W. Bush. He called the letter “directly in opposition to the rhetoric and the promises of DeVos.” After more than a decade of strict federal education standards and standardized testing regimes, the Every Student Succeeds Act was to return latitude to the states to come up with plans to improve student achievement and hold schools accountable for student performance. It sought to relieve states from the federal pressures of its predecessor, which required that 100 percent of the students of every school reach proficiency on state tests or the school would face harsh penalties and aggressive interventions. Unlike No Child Left Behind, the new law does not set numerical achievement targets, nor does it mandate how a state should intervene if a school fails to reach them. The law does require that states set such benchmarks on their own. Proponents, especially congressional Republicans and conservative education advocates, believed that a new era of local control would flourish under Ms. DeVos, who pointed to the new law as illustrative of the state-level empowerment she champions. But her department’s feedback reflects a tension between ideology and legal responsibility: While she has said she would like to see her office’s role in running the nation’s public schools diminished, she has also said she will uphold the law. “All of the signals she has been sending is that she’s going to approve any plan that follows the law,” Mr. Petrilli said. “And when in doubt, she’s going to give the states the benefit of the doubt.” Mr. Botel defended the department’s feedback, saying it was measuring state plans against federal statutes — including a requirement that plans be ambitious. “Because the statute does not define the word ‘ambitious,’ the secretary has the responsibility of determining whether a state’s long-term goals are ambitious,” Mr. Botel said. In the department’s letter to Delaware — which incited the most outrage from conservative observers — Mr. Botel took aim at the state’s plan to halve the number of students not meeting proficiency rates in the next decade. Such a goal would have resulted in only one-half to two thirds of some groups of students achieving proficiency, he noted. The department deemed those long-term goals, as well as those for English-language learners, not ambitious, and directed the state to revise its plans to make them more so. So far, 16 states and the District of Columbia have submitted plans, and more states will present plans in the fall. Delaware, New Mexico and Nevada were the first three to be reviewed by Education Department staff and a panel of peer reviewers. State education officials in Delaware said they had spent a year engaging the community on their plan and would resubmit it with clarifications. But Atnre Alleyne, the executive director of DelawareCAN, an advocacy group that helped draft the plan, agreed with the department’s findings. He said that his group had challenged the state about accountability measures, such as setting firm goals and consequences for failing to meet them, and found that “there was a lot of fear about being bold or aggressive” after No Child Left Behind. “Ultimately this has to be about every student succeeding, so to say that one-third are going to be proficient in 10 years, the department is right to call that into question,” Mr. Alleyne said. “A lot of people thought it was just going to be a breeze. I was glad to see it was a push.” Since Ms. DeVos was confirmed, civil rights and education advocates have expressed concern that state plans would get assembly-line approval and states would be allowed to skirt responsibility for low-performing and historically underserved students. For all of its flaws, the No Child Left Behind Act was praised for holding schools accountable for performance data. Under the law, a school was considered failing if all of its student groups, including all racial and ethnic groups, English-language learners and students with disabilities, did not meet annual achievement targets. By the end of the law, more than half of the nation’s schools were considered failures. But even after the first round of feedback, the advocates would like the department to be more aggressive and reject any state plan that lacks specifics on how they will account for the performance of historically underperforming and underserved student populations. “Pushback and feedback in and of themselves are of no interest and of no value,” said Liz King, the director of education policy at the Leadership Conference on Civil and Human Rights. Chad Aldeman, a principal at Bellwether Education Partners, who led an independent examination of state plans, said that some states, like Louisiana, New Mexico and Tennessee, had innovative plans to improve student achievement. But Mr. Aldeman agreed that many state plans reflected “process without specificity” when it came to the two most important parts of the new law — identifying how schools will account for the performance of all students, and how states plan to intervene in low-performing schools. And Ms. DeVos and Republican lawmakers were partly to blame. “The administration has signaled that they’re willing to take plans that are half-baked, and we’re seeing plans that aren’t finished and are not complete,” Mr. Aldeman said. Christopher Ruszkowski, the acting secretary for the New Mexico Public Education Department, said the idea that the new law would yield total state control was merely “rhetoric from the Beltway.” “I think a lot of the euphoria over return to local control was an overpromise,” he said. “What this signals is that U.S.D.E. will continue to play the role they’ve always played in the years ahead.” In feedback for five more states — Connecticut, Louisiana, New Jersey, Oregon and Tennessee — the Education Department avoided criticizing the ambitions of the state plans. But it did maintain its scrutiny. For example, the department noted that Tennessee neglected to identify, as the law requires, languages other than English spoken among its student population because it considers itself “an English-only state.” According to the state’s population profile, nearly 50,000 students speak English as a second language. And in Connecticut’s plan, the department pointed out that the state discussed ways to identify schools that had “consistently underperforming” student groups, but did not actually define what that meant. The state was also criticized for its use of an alternative system for measuring academic performance instead of more standard “proficiency” measurements on state tests, as the law requires. Such feedback signaled that the department “appears to be resorting to very traditional and narrow ways of interpreting student and school performance,” said Laura Stefon, chief of staff for the Connecticut State Department of Education. 4. IMP Deny Federal regulation is already happening, new hardline law should’ve triggered the impact. Green 7/7/17 "DeVos’s Hard Line on New Education Law Surprises States," New York Times, https://www.nytimes.com/2017/07/07/us/politics/devos-federal-education-law-states.html (JD) Education Secretary Betsy De Vos, who made a career of promoting local control of education, has signaled a surprisingly hard-line approach to carrying out an expansive new federal education law, issuing critical feedback that has rattled state school chiefs and conservative education experts alike. President Barack Obama signed the Every Student Succeeds Act in 2015 as the less intrusive successor to the No Child Left Behind law, which was maligned by many in both political parties as punitive and prescriptive. But in the Education Department's feedback to states about their plans to put the new law into effect, it applied strict interpretations of statutes, required extensive detail and even deemed some state education goals lackluster. 5. NO UQ Trump violating Federalism now Will ‘17 George Frederick Will is a Pulitzer Prize–winning political commentator. The authors received MA and PhD degrees in politics from Princeton University and has then taught political philosophy at the James Madison College of Michigan State University, at the University of Toronto, and at Harvard University - From the article: “Trump’s violations of federalism would make Obama jealous” – Washington Post - May 10, 2017 - https://www.washingtonpost.com/opinions/trumps-violations-of-federalism-would-make-obama-jealous/2017/05/10/7cf6b5d6-34dd-11e7-b4ee-434b6d506b37_story.html?utm_term=.501ab7c57fb7 Trump’s violations of federalism would make Obama jealous “But what good came of it at last?” Quoth little Peterkin. “Why that I cannot tell,” said he, “But ’twas a famous victory.” — Robert Southey “The Battle of Blenheim” (1798) Southey, a pacifist, wrote his antiwar poem long after the 1704 battle for which the Duke of Marlborough was awarded Blenheim Palace, where his great-great-great-great-great-great-grandson Winston Churchill would be born. We, however, do not need to wait 94 years to doubt whether the Trump administration’s action against “sanctuary cities” is much ado about not much. Four months have sufficed to reveal ’twas a constitutionally dubious gesture. The executive order was perpetrated in a helter-skelter, harum-scarum, slapdash manner five days after the inauguration, before the administration was humming like a well-tuned Lamborghini. The order says that sanctuary cities have caused “immeasurable harm” to “the very fabric of our republic,” a thunderous judgment offered without evidence of the shredded fabric or even a definition of “sanctuary city.” The executive order is either a superfluous nullity or it is constitutional vandalism. It says cities “that fail to comply with applicable federal law” shall “not receive federal funds, except as mandated by law.” A U.S. district judge in Northern California has held that the executive order is “toothless” if it pertains to merely a few federal grants, and even they do not unambiguously state in their texts that funding is conditional on active cooperation with federal immigration enforcement. If, however, the order extends to other federal grants, it violates the separation of powers: The spending power is vested in Congress, so presidents cannot unilaterally insert new conditions on funding. Several senior White House officials, operating in pre-Lamborghini mode, denounced this judge’s decision as another excess by the much-reversed U.S. Court of Appeals for the 9th Circuit. Actually, although this court might hear an appeal of the judge’s decision, it had nothing to do with the decision. It is federal law that a state "may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual." This does not, however, prevent any government entity from voluntarily withholding information. Furthermore, the Supreme Court has held that the 10th Amendment ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people") means that the federal government may not "commandeer" state and local officials to enforce federal laws. The function of the anti-commandeering doctrine is, in the words of Justice Antonin Scalia, the "preservation of the states as independent and autonomous political entities." Last Sunday, Texas Gov. Greg Abbott (R) signed legislation setting criminal and civil penalties for state and local officials who refuse to comply with federal immigration laws and detention requests. As policy, this may or may not be wise; as an exercise of the state's police power, it is not constitutionally problematic. But regarding the federal executive order, professor Ilya Somin of George Mason University's Antonin Scalia Law School says: "Trump's order is exactly the kind of high-handed federal coercion of states and undermining of separation of powers that outraged conservatives under [President Barack] Obama. In fact, Obama did not go as far as Trump seems to do here. Obama never claimed sweeping authority to impose new conditions on federal grants beyond those specifically imposed by Congress." 6. No Link Federalism is Resilient – no single area is key Young ‘3 (Ernest, Professor of Law – University of Texas, Texas Law Review, May, Lexis) One of the privileges of being a junior faculty member is that senior colleagues often feel obligated to read one's rough drafts. On many occasions when I have written about federalism - from a stance considerably more sympathetic to the States than Judge Noonan's - my colleagues have responded with the following comment: "Relax. The States retain vast reserves of autonomy and authority over any number of important areas. It will be a long time, if ever, before the national government can expand its authority far enough to really endanger the federal balance. Don't make it sound like you think the sky is falling." 7. IMP Deny Federal government has historical role in education Hornbeck 17 (Dustin Hornbeck, Ph.D. Student in Educational Leadership and Policy, Miami University, 4-26-2017, "Federal role in education has a long history," Conversation, http://theconversation.com/federal-role-in-education-has-a-long-history-74807) As for the federal government’s role, education is not specifically addressed in the Constitution, but a historical precedent of central government involvement does exist. In 1787, the Continental Congress, the central government of the United States between 1776 and 1787, passed the Northwest Ordinance, which became the governing document for Ohio, Illinois, Indiana, Michigan, Wisconsin and part of Minnesota. The ordinance included a provision encouraging the creation of schools as a key component of “good government and the happiness of mankind.” Just two years earlier, the Land Ordinance of 1785 required land to be reserved in townships for the building of schools. The role of the federal government in general grew much larger after the Great Depression and World War II, but this growth largely excluded K-12 education until the 1960s. In 1964, President Lyndon B. Johnson included education policy in his vision of a “Great Society.” In 1965, President Johnson signed the Elementary and Secondary Education Act (ESEA) into law. This law decidedly changed the role of the federal government in the world of K-12 education. ESEA doubled the amount of federal expenditures for K-12 education, worked to change the relationship between states and the central government in the education arena, called for equal treatment of students no matter where they reside and attempted to improve reading and math competency for children in poverty. ESEA was passed with the intention of bridging a clear gap between children in poverty and those from privilege. Title I of the ESEA, which is still referenced frequently in K-12 education policy, is a major provision of the bill, which distributed federal funding to districts with low-income families. Turn Education federalism costs the economy billions annually Kimberly Jenkins Robinson (Professor of Law, University of Richmond School of Law) 2015 [“ARTICLE: DISRUPTING EDUCATION FEDERALISM” Washington University Law Review 92 Wash. U. L. Rev. 959, lexis, loghry] Education federalism also is supposed to yield an efficient and effective education system. However, the education system regularly falls[*974] short of achieving these goals. n80 The substantial percentage of poorly educated students inflicts substantial costs upon the United States, resulting in numerous inefficiencies. n81 For example, as I have noted in prior scholarship, n82 increasing the high school graduation rate could save the nation between $ 7.9 and $ 10.8 billion annually in food stamps, housing assistance and welfare assistance. n83 The nation forfeits $ 156 billion in income and tax revenues during the life span of each annual cohort of students who do not graduate from high school. n84 This cohort also costs the public $ 23 billion in health care costs and $ 110 billion in diminished health quality and longevity. n85 By increasing the high school graduation rate by one percent for men aged twenty to sixty, the nation could save $ 1.4 billion each year from reduced criminal behavior. n86 Given this research, ineffective schools inflict high costs upon the nation - costs that it cannot afford as it wrestles with predicted long-term growth in the deficit and significant, yet declining, unemployment. n87 Turn Econ decline causes extinction Kemp 10 (Geoffrey Kemp, Director of Regional Strategic Programs at The Nixon Center, served in the White House under Ronald Reagan, special assistant to the president for national security affairs and senior director for Near East and South Asian affairs on the National Security Council Staff, Former Director, Middle East Arms Control Project at the Carnegie Endowment for International Peace, 2010, “The East Moves West: India, China, and Asia’s Growing Presence in the Middle East”, p. 233-4) The second scenario, called Mayhem and Chaos, is the opposite of the first scenario; everything that can go wrong does go wrong. The world economic situation weakens rather than strengthens, and India, China, and Japan suffer a major reduction in their growth rates, further weakening the global economy. As a result, energy demand falls and the price of fossil fuels plummets, leading to a financial crisis for the energy-producing states, which are forced to cut back dramatically on expansion programs and social welfare. That in turn leads to political unrest: and nurtures different radical groups, including, but not limited to, Islamic extremists. The internal stability of some countries is challenged, and there are more “failed states.” Most serious is the collapse of the democratic government in Pakistan and its takeover by Muslim extremists, who then take possession of a large number of nuclear weapons. The danger of war between India and Pakistan increases significantly. Iran, always worried about an extremist Pakistan, expands and weaponizes its nuclear program. That further enhances nuclear proliferation in the Middle East, with Saudi Arabia, Turkey, and Egypt joining Israel and Iran as nuclear states. Under these circumstances, the potential for nuclear terrorism increases, and the possibility of a nuclear terrorist attack in either the Western world or in the oil-producing states may lead to a further devastating collapse of the world economic market, with a tsunami-like impact on stability. In this scenario, major disruptions can be expected, with dire consequences for two-thirds of the planet’s population. Racial Kritik Federalism exacerbates racial inequality – stagnates progress and legitimizes racial stratification Miller 10 (Lisa L., Ph.D. in Political Science, Visiting Scholar at the Program in Law and Public Affairs in the Woodrow Wilson School of Government at Princeton University, (Fall 2010), Law and Society Review, “The Invisible Black Victim: How American Federalism Perpetuates Racial Inequality in Criminal Justice,” http://www.eagleton.rutgers.edu/research/documents/Invisible_Black_Victim.pdf, Accessed: 7.8.17)VW Abstract The promise of civil rights is the promise of inclusion and yet the vast disparity in incarceration rates between Blacks, Latinos and whites stands as an ugly reminder of the nation’s long history of race-based exclusionary practices. In this paper, I argue that an important aspect of understanding race and the law in the 21st century is an appreciation of the American federal system that structures legal authority, political mobilization and policy solutions and serve as important and overlooked obstacles to more complete and sustained racial equality in crime and punishment in the United States. In contrast to the conventional wisdom about the role of the national government in protecting the rights of minorities and other disadvantaged groups, I suggest that crime and justice are arenas where the nationalization of issues has left the most important constituents behind. In fact, local crime politics provides a space in which there is regular and ongoing articulation of the inclusionary goals of the civil rights agenda and sustained efforts to move forward in realizing that agenda through meaningful community involvement in promoting public safety, economic development and social justice. This paper explores these themes and offers a discussion of the linkages between federalism, racial inequality and crime, victimization and punishment. I. Introduction One of the most discouraging facts of racial inequality at the dawn of the 21st century in the United States is the disproportionate impact of crime, violence, arrest and incarceration on African-Americans and Latinos compared to Whites. While one in 106 White men over the age of 18 was incarcerated in 2007, the figure for Latino men is one in 36, and for African-American men it is a staggering one in 15 (Bureau of Justice Statistics). At virtually any point in the justice system, Blacks and Latinos are substantially over-represented relative to their proportion of the population (Walker, Spohn and DeLeone 2006). At the same time, Blacks and Latinos also experience crime and violent victimization at far higher rates than Whites. Overall homicide rates for blacks are over seven times that of whites and the homicide rate for black males 18-24 is more nine times that of whites of the same age (Bureau of Justice Statistics). There is strong empirical evidence that both victims and incarcerated populations are heavily drawn from poor areas with high concentrations of racial minorities, and that this concentration has serious consequences for children, families, marriage, neighborhood vitality and economic opportunity (Clear 2007). The promise of civil rights is the promise of inclusion and yet these vast disparities stand as stark reminders of the nation’s long history of racist exclusionary practices. How are we to make sense of these disparities half a century after Brown v. Board of Education, Civil Rights Act of 1964 and the Voting Rights Act of 1965? The alarming data on minorities, crime and victimization undermine claims of racial progress and threaten to limit or even reverse the movement towards greater racial equality. While we know much about how individual racial attitudes shape preferences and legal norms on crime and violence, and that developments in law and order have often traded on racial cues, we know much less about how America’s racialized past continues to provide mechanisms for social policymaking and legal decision-making that perpetuate such deep inequities (see Murakawa 2005; Gilliam and Iyengar 2000; Mendenberg 1997; Provine 2007; Wacquant 2001; Weaver 2007). I argue that no general account of race, inequality, crime and punishment in the United States is complete without an understanding of the distinctive character of American federalism.1 Federalism in the United States was forged in part as a mechanism for accommodating slavery and it facilitated resistance to racial progress for blacks long after the Civil War (Dahl 2003; Finkelman 1981; Frymer, Strolovitch, Warren 2007; Katznelson 2005; Lieberman 2005; Lowndes, Novkov and Warren 2008; Riker 1964). American federalism limits the authority and political incentives of the central government to address a wide range of social problems that give rise to crime and diffuses political power across multiple venues that make it difficult for the poor and low-resources groups to access decision-making. As a result, federalism renders largely invisible the only political terrain – urban areas – in which minority victims are routinely visible, both as victims of violence and political and economic marginalization. In order to address racial inequality in criminal justice, advocates for racial progress must overcome a dizzying array of fragmented lawmaking venues and commandeer the lawmaking powers of the central government, formidable tasks that have usually occurred when a confluence of exogenous factors, such as wars, social movements, shifts in demographics, economic catastrophe or other calamities have come into play (see Feeley and Rubin 2008 for a related discussion). Conventional narratives of federalism and racial inequality in the U.S. typically focus on the problems of regional politics at the state and local levels and the successes of national political strategies in forcing these governments to accept more equitable legal standards and political outcomes. In contrast, the analysis of crime, law and political mobilization presented here suggests that the limitations of American federalism run far deeper, and are not confined to the parochialisms of regional politics. For much of the nation’s history, American-style federalism has allowed the national government to escape pressure and responsibility for addressing inequality and stagnation in racial progress (see Riker 1964). Today, it continues to winnow debates about crime and justice in ways that undermine the political voice, representation and empowerment of those most affected by crime and criminal justice – urban racial minorities. The effect of federalism on crime and punishment is to reinforce existing racially-stratified access to power by: Balkanizing mobilization efforts among urban minority groups that would otherwise be natural allies; diffusing political pressure about poverty across a wide range of political and legal venues; and limiting the scope and tenor of the central government’s power to address social problems. The nature of the American federal system thus makes it difficult to see disparities in crime and punishment as linked to broader socio-economic patterns of racialized policymaking and the reframing of crime and punishment from local to national venues changes not only the participants involved but also the very nature of the problem itself, such that minority interests are at best obfuscated and, at worst, rendered invisible. This paper proceeds in four sections: I begin with a more detailed discussion of the features of American federalism that impose obstacles to the political voice of urban minorities for addressing crime and violence. Then, drawing on congressional hearings data, I investigate the interaction of federalism and group dynamics in national politics in order to understand how minority political mobilization and Blacks as victims of long-standing racialized practices of exclusion are largely obscured. Third, I compare this to the political mobilization around crime and violence in two urban areas, Philadelphia and Pittsburgh, to identify the primary players, problem definitions and legal frames presented to lawmakers in these venues. While the two sites represent a small slice of the urban minority experience, they provide an illustration of the issues, politics and political agitation that characterizes many urban centers (see Gregory 1999; Anderson 1999; Lyons 1999; Carr, Napolitano and Keating 2007). In this context, we find a wide range of groups fighting their way into the political process, including citizens representing low-income, minority neighborhoods. I conclude with a discussion of how the nature of the American federal system makes it difficult to see disparities in crime, violence and punishment as linked to broader socio-economic patterns of racialized policymaking and how recognition of these features of the U.S. political system might promote productive political engagement on racial equality. II. Federalism, race and criminal justice disparities One of the most common explanations for persistent racial inequities in crime, punishment and criminal justice is that they represent a continuation of the long history of exclusionary practices in the United States beginning with slavery, continuing through the Jim Crow south, white flight and race riots in northern ghettos, and culminating most recently in the prison state. Analysis of congressional drug policy, for example, illustrates how race and ethnic imagery have long been smuggled into drug policy debates and can be seen in contemporary discourse about crack cocaine and inner-city blacks (Provine 2007; see also Morone 2003). Others have drawn attention to the interaction between the civil rights movement, urban riots, moral panics and exploitation of the law and order issue by political parties (Barker 2006, 2009; Beckett 1997, Flamm 2005; Jacobs and Carmichael 2001; Murakawa 2005; Tonry 1995, 2004; Weaver 2007; see also Wacquant 2001). These approaches provide rich insight into national crime politics and serve as foundational analyses for understanding the persistence of racial inequalities in crime and punishment. There are, however, several reasons to expand the discussion beyond national politics and to flesh out more specifically the mechanisms through which racial hierarchies are perpetuated in crime and punishment. First, most citizens experience victimization in their neighborhoods and encounter police and the justice system at the local level. Local legislatures face these realities and the manner in which they respond to the people experiencing them deserves attention (Scheingold 1984). Congressional crime politics, by contrast, occupies a rather idiosyncratic political space since Congress has no need – and little constitutional mandate– to legislate on run of the mill criminal activity. Thus, very different political incentives and policy frameworks emerge at different levels of government with implications for the interests that are represented and the way issues are framed. Second, there are enormous differences in victimization across racial groups. While African-American and Latino young males have experienced the long arm of the law in unprecedented numbers, they are also victims of violence in numbers that far outpace any other demographic group and overall declines in violent crime in recent years have been far less significant in minority communities than in whiter, more affluent areas (Thacher 2004). Any discussion of the racialized nature of crime and punishment in the United States, then, must take account of the day to day violence that inheres in many Black and Latino neighborhoods and the political mobilization of these communities for greater public safety. While scholars have been attentive to the role that primarily white victims groups have played in the politics of crime and punishment, we have far less to say about the political agitation by groups representing minority victims (see Barker 2006; Gottschalk 2006; Zimring, Hawkins and Kamin 2001). As this paper will demonstrate, people living in high crime areas often place enormous demands on local elected officials and police departments to do more to keep citizens safe, including pressuring the police for more patrols and more arrests, along with improvements in schools, recreational opportunities for youth and reducing with urban blight (Carr, et. al, 2007; Lyons 1999; Miller 2008). That these demands often translate into little more than top-down, aggressive policing activities may tell us as much about the interaction of federalism and racialized group interests in the U.S. as it does about the racial attitudes of local officials or support for law and order punishment practices among the American public. In contrast to extant approaches then, I consider racial inequality in modern crime politics at the foundations of American political institutions. For this reason, I compare here the political representation and framing of crime and punishment at the national level, on which much of our understanding of race, punishment and inequality is based and where we often expect solutions to emerge, to that of local politics, where Blacks and Latinos experience the daily inequities of victimization and involvement with the justice system and where minority political and legal interests are most visible. Of course, most criminal law and criminal punishment is meted out in state legislatures and courts but the goal of this paper is twofold: first, to illustrate the asymmetric distribution of power and interests under our constitutional design between the locale where minorities experience crime, victimization and punishment and the national venue that is expected to ameliorate these realities; and second, to give voice to the largely invisible efforts of minority activists pressuring lawmakers to address the social conditions that give rise to crime and violence (see Miller 2008 for a detailed comparison with state politics). This requires a detailed analysis of the capacity of the central government to address these problems and the problem definitions and legal narratives about crime, violence and victimization that are visible in urban, minority communities. This approach reveals not just differential access to power but differential institutional capacities across the varied and complex landscape of American federalism. Thus, this paper does not address specific policy outcomes per se but, rather, reveals why particular problem definitions, policy frames and legal narratives about crime, victimization and punishment are more likely in some venues than others. This can help us understand how racial hierarchies can be perpetuated in the absence of formal legal discrimination and even when discriminatory attitudes are mitigated. As Leiberman notes, “racial bias in a race-laden policy need not be the result of racism per se. It may instead result from institutions that mobilize and perpetuate racial bias in a society and its politics, even in institutions that appear to be racially neutral” (Lieberman 1998, 7). I suggest here that racial inequities in crime, punishment and victimization have at least some of their roots in the racialized access to power at the foundation of the U.S. constitutional system. Federalism and its limitations for progressive social action on crime Several features of the federal structure put into place at the Constitutional Convention have had enduring effects on the political and legal struggle for racial equality (Lieberman 1998; Riker 1964; Finkelmen 1981). First, the division of power between the states and the new national government left intact virtually of all the states’ traditional police powers – powers used to address a wide range of citizen concerns, including the health, safety and morals of the state’s citizens. This choice was an obvious one, as the territorial and geographic allegiances to the colonies pre-dated the American Revolution, but leaving these powers in the hands of the states also allowed the new nation to avoid conflict over the most important jurisdictional issue of the day: human bondage (see Derthick 1992; Federalist #10). Most critiques of American federalism focus on how this allowed recalcitrant states and localities to block racial progress (Graber 2006; Lieberman 1998; Riker 1964; Finkelman 1981; Frymer, et. al., 2006). The strength of state governments under the U.S. Constitution provided pro-slavery advocates with powerful legal and political claims to maintaining their ‘peculiar institution’ and, as Frymer et. al. note in their discussion of Hurricane Katrina, continues to “provide opponents of civil rights with a powerful, legitimate, and seemingly “race-neutral” narrative through which to stymie progress on this front” (Frymer, et. al. 2007, 48; see also Graber 2006). Such assessments suggest that the problem of federalism for racial progress is that the progressive possibilities at the national level are all too often diluted at lower levels of government (Lieberman 1998). There are two other features of the distinctive American system, however, that serve as equally significant barriers to addressing racial inequalities in crime and punishment. The first is the relatively anemic nature of congressional power (Frymer, et. al. 2007; Esping-Anderson 1990; Kincaid 1999; see also de Tocqueville 2004). Limited by design, the United States Congress has a narrower jurisdictional breadth than state governments with respect to addressing major social policy issues. Certainly, congressional power has grown over the course of the nation’s history and when a national consensus emerges, constitutional divisions of power are frequently glossed over in favor of national authority (Feeley and Rubin 2008). Lacking a clear, decisive national consensus, however, congressional authority is inhibited by the fact that it lacks a constitutional mandate to legislate on broad social welfare issues. While the federal courts have given Congress a wide berth in its exercise of the commerce clause powers since the New Deal, the Supreme Court does occasionally limit the scope of Congress’ power based on its reading of the commerce clause in Article I, Section 8 and the 10th Amendment and continues to hear cases challenging congressional authority to address major social policy domains.2 While these challenges are rarely sustained, they can provide sufficient opposition to fracture fragile coalitions or cause them to lose momentum (Dinan 2002). The recent constitutional challenges by fourteen state Attorneys General to the congressional health care bill represent the most recent example of this long and storied history.3 More importantly, the fact that Congress has expanded the reach of its domestic policymaking does not alter the fact that most social policy that affects the day to day lives of citizens – public safety, education, transportation, public works, health care, for example – is still enacted by state and local governments. As a result, Congress not only has an episodic mandate to address a great many social issues that affect rates of criminal offending and victimization, it also has few political incentives to address these thorny issues. Put in stark terms, the United States government does not have clear constitutional authority to address a broad range of social welfare issues. In fact, no level of government in the United States has responsibility and accountability for legislating on the health, safety and social welfare needs of the polity as a whole. When Congress does legislate on broad social issues – public safety, social welfare, education or the environment, for example – it often does so by shoehorning policy into Article I, Section 8 or relying on enabling legislation from constitutional amendments. While these strategies are often sufficient in the context of broad national consensus, they represent weak grounds for the kind of policy that is demanded by vast and deep inequalities across racial groups. Even on economic issues, where Congress’ authority is clearer, national lawmakers are frequently asked to justify the ability of Congress to trump state power in this realm.4 A second distinctive feature of American federalism that has implications for understanding racial inequality in crime and punishment is the multiple legal and legislative venues for participation. This porousness can provide citizens with multiple locations for participation (Baumgartner and Jones 2002; Pralle 2006). However, multiple centers of power also make it difficult for the poor and low-resources groups to sustain pressure across a political landscape that is navigable largely through sustained human, social and fiscal capital. Multiple venues can reinforce and exacerbate classic collective action problems which disproportionately disadvantage the poor and racial minorities (Manza 2007; Miller 2007). Social movement scholars have long recognized the importance of a group’s capacity to mobilize resources in order to successfully function as a pressure group (McCarthy and Zald 1987). These resources need not be financial but can include significant numbers of highly motivated, preference-intense people, and/or a public image that is highly favorable (see Fiorina 1999; Schneider and Ingram 1993). Coupled with fiscal resources, these forms of capital can help launch a narrowly focused interest group into a wide range of political and legal venues, while others – with less financial support, more diffuse supporters or a less positive public image – struggle to maintain pressure at just one legislative locale. Thus, federalism is an important element in understanding racial inequality not only because of the space it has allowed states in blocking reform but also because of the limitations it imposes on the power of the national government to ameliorate the conditions giving rise to crime and violence and the obstacles it erects to collective action efforts of poorly resourced groups. Racism must be rejected in every instance without surcease. It justifies atrocities and violence against people of color. Memmi 2000 Albert, Professor Emeritus of Sociology @ Unv. Of Paris, Albert (RACISM, translated by Steve Martinot, pp.163-165) The struggle against racism will be long, difficult, without intermission, without remission, probably never achieved, yet for this very reason, it is a struggle to be undertaken without surcease and without concessions. One cannot be indulgent toward racism. One cannot even let the monster in the house, especially not in a mask. To give it merely a foothold means to augment the bestial part in us and in other people which is to diminish what is human. To accept the racist universe to the slightest degree is to endorse fear, injustice, and violence. It is to accept the persistence of the dark history in which we still largely live. It is to agree that the outsider will always be a possible victim (and which [person] man is not [themself] himself an outsider relative to someone else?). Racism illustrates in sum, the inevitable negativity of the condition of the dominated; that is it illuminates in a certain sense the entire human condition. The anti-racist struggle, difficult though it is, and always in question, is nevertheless one of the prologues to the ultimate passage from animality to humanity. In that sense, we cannot fail to rise to the racist challenge. However, it remains true that one’s moral conduct only emerges from a choice: one has to want it. It is a choice among other choices, and always debatable in its foundations and its consequences. Let us say, broadly speaking, that the choice to conduct oneself morally is the condition for the establishment of a human order for which racism is the very negation. This is almost a redundancy. One cannot found a moral order, let alone a legislative order, on racism because racism signifies the exclusion of the other and his or her subjection to violence and domination. From an ethical point of view, if one can deploy a little religious language, racism is “the truly capital sin.”fn22 It is not an accident that almost all of humanity’s spiritual traditions counsel respect for the weak, for orphans, widows, or strangers. It is not just a question of theoretical counsel respect for the weak, for orphans, widows or strangers. It is not just a question of theoretical morality and disinterested commandments. Such unanimity in the safeguarding of the other suggests the real utility of such sentiments. All things considered, we have an interest in banishing injustice, because injustice engenders violence and death. Of course, this is debatable. There are those who think that if one is strong enough, the assault on and oppression of others is permissible. But no one is ever sure of remaining the strongest. One day, perhaps, the roles will be reversed. All unjust society contains within itself the seeds of its own death. It is probably smarter to treat others with respect so that they treat you with respect. “Recall,” says the bible, “that you were once a stranger in Egypt,” which means both that you ought to respect the stranger because you were a stranger yourself and that you risk becoming once again someday. It is an ethical and a practical appeal – indeed, it is a contract, however implicit it might be. In short, the refusal of racism is the condition for all theoretical and practical morality. Because, in the end, the ethical choice commands the political choice. A just society must be a society accepted by all. If this contractual principle is not accepted, then only conflict, violence, and destruction will be our lot. If it is accepted, we can hope someday to live in peace. True, it is a wager, but the stakes are irresistible. Federalism exacerbates racial inequalities – three warrants Miller 10 (Lisa L., Ph.D. in Political Science, Visiting Scholar at the Program in Law and Public Affairs in the Woodrow Wilson School of Government at Princeton University, (Fall 2010), Law and Society Review, “The Invisible Black Victim: How American Federalism Perpetuates Racial Inequality in Criminal Justice,” http://www.eagleton.rutgers.edu/research/documents/Invisible_Black_Victim.pdf, Accessed: 7.8.17)VW V. Conclusion A wide range of inter-disciplinary scholarship directly connects the high rates of arrest and incarceration of Blacks and Latinos to their living conditions (Massey and Denton 1992; Sampson and Morenoff 2002; Walker, Spohn and DeLeone 1996) but the lawmakers in the political venues best situated to address these conditions are largely insulated from the political pressure to do so. What does this insulation mean for the politics of crime and punishment and racial inequality in the United States? This analysis has suggested three ways in which American federalism structures representation on crime and violence in ways that disadvantage low-income racial minorities. First, the American political system makes it fairly easy to de-couple crime and punishment from larger socio-economic inequalities through a central lawmaking apparatus that is ill-equipped to sustain attention to the connection between crime and larger social issues. Members of Congress are rarely held accountable for their positions on local crime problems but there are multiple incentives for them to respond to single-issue interest groups, professional associations and criminal justice agencies eager to have their missions enhanced. These groups are more likely to converge on increasing punishment than on ameliorating poor living conditions. In contrast, while many broad citizen interest groups are not opposed to more punishment, they also exhibit a strong pragmatic streak and are wary of policy prescriptions that have little visible impact on the condition of their communities. Local lawmakers must respond to these demands for community revitalization but are highly constrained in their ability to significantly address economic conditions. The disconnect between those held accountable and those with the means to promote viable solutions is substantial. Second, federalism reinforces existing race and class stratification by creating a system of multiple political venues that makes it difficult for poorly resourced groups to navigate and by driving several layers of government between citizens who experience these problems and lawmakers who have the capacity to ameliorate them. Creating and sustaining groups is a difficult enterprise under the best of circumstances, but having the resources and knowledge to sustain a presence on multiple legislative venues simultaneously requires extraordinarily wellorganized and highly resourced participants. These groups are unlikely to regularly include the interests of poor, urban minorities. While multiple legislative venues may provide a more open political system in some respects, it also creates a political context that perpetuates racial hierarchy by creating opportunities for highly resourced groups to control the terms of the debate and forcing the less organized onto their terrain, no matter how they may initially frame the problem. This is dramatically illustrated by how local pressures for improvements to neighborhood public safety and quality of life are truncated and transformed in national discourse into dichotomous debates over more or less drug enforcement, gun control or policing. None of those debates strike at the heart of the urban conditions that drive so many people into local politics to advocate on behalf of their communities. Finally, federalism exacerbates classic collection action problems by Balkanizing urban areas from one another and forcing groups to fight battles locally without the resources, support and political power of similarly situated groups around their own state, much less around the country. Urban areas around the country have sought to reduce gun violence and the allure of the drug trade in remarkably similar ways but each locale is largely on its own to lobby state and national lawmakers for support. The issue is less a question of how much centralization in policymaking is necessary and more a question of how to keep policymakers with substantial resources accountable to the publics that are most affected by serious crime. Occasionally, a series of events will force these issues onto the national agenda, as when the urban riots and violence of the late 1960s and early 1970s provided greater opportunity for groups representing the urban poor to find a voice in the political process. But once these events subside, congressional attention reverts to repeat players with the capacity to remain active, long after specific issues and events have subsided. The implication for thinking about federalism is that the representation and voice of poor citizens and many racial minorities are largely muted except when exogenous factors temporarily open up new opportunities. Theorizing the relationship between federalism and inequality, then, requires more systematic attention to the incentives, opportunities and possibilities for vindicating the interests of racia