Case

AT: Plyler
Plyler didn’t generate a clear doctrine – aff is key
Olivas 11 — (Michael A. Olivas, Distinguished Chair in Law at the University of Houston Law
Center and Director of the Institute for Higher Education Law and Governance at UH, “The
Political Efficacy of Plyler v. Doe: The Danger and the Discourse,” 45 U.C. Davis L. Rev. 1, 2011,
lexis)

In this sense, all aliens “within” the borders of the country, no∂ matter their legal status, are
eligible for certain constitutional∂ protection. Although Rodriguez held that education is not a∂
fundamental right and Plyer explicitly rejected the argument that these∂ immigrant children are
a suspect class, Justice Brennan nevertheless∂ said that the law must survive more than a
rational basis review to∂ survive. That the Texas statute at issue in Plyler singled out the∂
children, innocent even if their parents had “dirty” hands, convinced∂ the lower courts and
Justice Brennan all the more that Texas could not∂ even satisfy the most deferential level of
constitutional review.45

Plyler, read soon after its ruling along with Bynum and Toll suggests∂ that the Supreme Court
was willing to examine more carefully the∂ benefits or statuses to be withheld or extended by
states or Congress.46∂ Following Plyler, durational benefits and status distinctions would∂ have
to withstand more searching scrutiny and delineate immigration∂ classifications more
carefully and with nuance. That said, Plyler’s∂ incorporation of “inchoate” federal policy and
lack of efficacy failed to∂ generate clear doctrine or guidelines. Both of these issues have∂
surfaced in the current debates over the extent to which local or state∂ authorities may regulate
immigration by means similar to the Texas∂ school attendance zones, such as renter laws, work
authorization,∂ policing powers, and other municipal ordinances.
 T-Agencies
1. We meet – the aff has the court force agencies to regulate education for
undocumented students
Plyler is a decision about regulation of education – here’s contextual evidence
Holoszyc-Pimentel 15 — (Raphael Holoszyc-Pimentel, JD, New York University School of
Law; BA, 2009, Penn, “Note: Reconciling Rational-Basis Review: When Does Rational Basis Bite?”
90 N.Y.U.L. Rev. 2070, December 2015, lexis)

Plyler did not cite the language from Louisville Gas, but the Court did suggest that state
regulation of education on the basis of alien status was unusual. The Court noted that alien status is "rarely
... relevant to legislation by a State." n162 Allegheny Pittsburgh also did not cite Louisville Gas, but the Court indicated that the
disparate tax treatment of recently acquired property was unusual. The Court was troubled by the assessor's "aberrational
enforcement policy," which appeared to be unauthorized by state law and actually "contrary to ... the guide published by the West
Virginia Tax Commission." n163

The right to education itself is a regulation

Skuani no date (Skuani, an online marketplace for professional services in the fields of law,
tax and accounting, no date, “Education – Industry,”
https://www.skuani.com/en/glossary/industry/education)

The right to education regulates various matters and legal relationships, and covers the right of
the entire education sector. Among other things, the educational legislation provides a legal
framework for the financing and organization of educational institutions. Moreover, in the educational
legislation, legal disputes with regards to performance assessments, examination decisions, and
disciplinary and regulatory measures, are possible. Further topics are private school law, vocational training law,
legal questions regarding further education and training, the right of the self-employed, etc. In case of questions concerning these
and similar topics, the appropriate expert can help you attaining your right. Experts in the field of education, however, also advise
educational institutions; for example, with the preparation of auditing regulations, contracts, and general terms and conditions.

The judiciary can check executive agencies

Slocum 7 (Brian G., Assistant Professor of Law, Florida Coastal School of Law. J.D. 1999, Harvard Law School, "Courts vs. the
Political Branches: Immigration "Reform" and the Battle for the Future of Immigration Law," McGeorge School of Law,
http://scholarlycommons.pacific.edu/cgi/viewcontent.cgi?article=1153&context=facultyarticles)

The judiciary has also undermined the executive branch reforms in more direct ways. Appeals of administrative
decisions have increased significantly since the executive branch reforms, and courts have not hesitated to reverse
administrative decisions.48 Some courts have also held that due process requires that a case be
remanded to the BIA for clarification of the grounds for its decision when the BIA summarily
affirms the Immigration Judge’s decision, and the Immigration Judge’s decision was based on alternative grounds,
one of which was not subject to judicial review and one of which was subject to judicial review.49 Undoubtedly, this practice of
judicial remands (which is a rather aggressive way to handle the problem of summary BIA affirmances) could have a
significant effect on the efficacy of the administrative summary procedures. Although such reluctance is
no doubt motivated by more than the executive branch reforms, the judiciary has also increasingly formulated legal
rules that illustrate a growing disinclination to defer to agency legal interpretations. In the now-
famous case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 50 the Supreme Court held that courts must defer to an
agency’s interpretation when the relevant statute’s meaning is ambiguous and the agency’s interpretation “is based on a permissible
construction of the statute.”51 This deference reached its peak in immigration cases in INS v. Aguirre-Aguirre, 52 when the Court
made clear that Chevron deference applies to legal interpretations made by the BIA in adjudications.53 The
scope of
Chevron deference in general has been narrowed by the Court in recent years.54 Indeed, courts in
immigration cases have been particularly eager to limit Chevron deference. Several circuits have
indicated that no deference is due the BIA when it has no special expertise regarding the particular issue or when it resolves “purely
legal questions.”55 In addition, courts often choose to apply canons of statutory construction instead of Chevron deference in cases
of statutory ambiguity.56 Significantly, considering the Attorney General’s efforts to streamline the administrative adjudication
process, some courts have held that Chevron deference is not appropriate when the BIA summarily affirms an Immigration Judge’s
decision.5

2. “Regulation” does not exclusively refer to agencies

Orbach 12 – Barak Orbach, Professor of Law at the University of Arizona College of Law,
“What Is Regulation?”, Yale Journal on Regulation, http://yalejreg.com/what-is-regulation/

Lawyers frequently use the word “regulation” in reference to rules of administrative agencies.
This habit tracks the executive branch’s terminology.14 For example, Executive Order 12,866, which requires federal agencies to
engage in cost-benefit analysis when “deciding whether and how to regulate,” defines “regulation” as “an agency statement of
general applicability and future effect, which the agency intends to have the force and effect of law, that is designed to implement,
interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency.”15 This
meaning of
the word mirrors another common perception of the term “regulation,” but surely does not
capture the entire spectrum of regulatory instruments. Much of our regulatory landscape does
not originate in administrative agencies.16 [FOOTNOTE 16] For example, law made by courts—
common law—is a traditional form of regulation. See Andrew P. Morrisss et al., Regulation by Litigation (2008);
Regulation Through Litigation (W. Kip Viscusi ed., 2002); Richard A. Posner, Regulation (Agencies) Versus Litigation (Courts): An
Analytical Framework, in Regulation vs. Litigation 11 (Daniel P. Kessler ed., 2010); see also Freedom Holdings, Inc. v. Spitzer, 358 F.3d
205 (2d Cir. 2004); Sanders v. Brown, 504 F.3d 904 (9th Cir. 2007); The T.J. Hooper v. Northern Barge, 60 F.2d 737 (2d Cir. 1932). ↩
[END OF FOOTNOTE] Another common perception of “regulation,” or at least a popular reference to regulation, equates the concept
with laws that serve interest groups.17 Economist George Stigler popularized this view, arguing that “regulation is acquired by the
industry and is designed and operated primarily for its benefit.”18 Richard Posner offered a more refined version of this perception:
“[R]egulation [is] a product allocated in accordance with basic principles of supply and demand . . . [and] we can expect a product to
be supplied to those who value it the most.”19 But, of course, not all regulations serve industries.20 Even when the regulator is
captured by industries, it is far from clear that lack of regulation would be better for the public.21 So what does regulation mean?
We return to the starting point—the intuitive understanding of the word “regulation”: government intervention in the private
domain or a legal rule that implements such intervention. The implementing rule is a binding legal norm created by a state organ
that intends to shape the conduct of individuals and firms.22 The state organ, the
regulator, may be any legislative,
executive, administrative, or judicial body that has the legal power to create a binding legal
norm. This general definition is broader than “restrictions,” “rules promulgated by
administrative agencies,” “laws that serve interest groups,” and related common perceptions of the word “regulation.”

3. Reasons to prefer
a. Aff ground – courts affs are some of the only fed key warrants on this topic –
their interpretation means all affs lose to the states CP which destroys aff
ground and kills fairness
b. Neg ground – allowing courts affs is key to tons of neg ground like court
specific DAs and CPs
c. Predictability – the resolution just says the United States federal government
– that includes the judiciary branch
4. Reasonability – competing interpretations cause a race to the bottom that
incentivizes technicalities over case debating.
 Settler Colonialism
The aff is a massive link turn – Trump’s racist immigration policies like
deportations and the travel ban are the epitome of the settler colonial state –
they seek to reify the US as an altar of white supremacy by excluding non-
settler identities using the rhetoric of “job-stealing” and “national security
threats” – the plan’s message of inclusiveness and resistance to executive
overreach makes it consistent with the alt and outweighs any miniscule link to
our representations of the education system
Permutation do both – purely individual ethical action fails to resolve both the
existence of the settler state and the impending danger of Trump’s racist
executive action – it’s better to take pragmatic steps to make the lives of
immigrants materially better than to fatalistically accept the inevitably of the
settler colonial state

Case outweighs the K – economic collapse will occur by next year and the threat
of nuclear terror is imminent – failing to address these problems causes
extinction and destroys institutions, preventing a broad-scale education shift
away from settler colonialism and rendering individual strategies impotent
It is morally repugnant to risk nuclear war – we should treat it as a certainty
Goodin 95 – (Robert E. Goodin, professor of social sciences and philosopher at
the Research School of Social Sciences at Australian National University,
Utilitarianism as a Public Philosophy, 1995, p. 296-7)
This locus on the moral importance of modal shifts can be shown to have important implications
for nuclear weapons policy. The preconditions for applying my argument surely all exist. Little
need be said to justify the claim that the consequences in view matter morally. Maybe
consequentialistic considerations are not the only ones that should guide our choices, of military
policies or any others; but where the consequences in view are so momentous as those involved
in an all-out nuclear war, it would be sheer lunacy to deny such considerations any role at all.
For present purposes, there is no need to specify what makes the consequences of a large-scale
detonation of nuclear weapons so morally heinous. We can leave open the question of whether
it is the dead bodies (or cities or civilizations) that should offend us or whether it is the violations
of moral rights and duties that would inevitably be entailed by a full-blown nuclear war. The
question here is merely how to allocate responsibility for avoiding outcomes that can be seen to
be morally heinous from any number of perspectives. Nor is there much doubt about the
existence of both conditions independently driving us from probabilistic principles to
possibilistic ones. As for the first, the potential costs of an all-out nuclear war surely are
enormous and surely must count as "virtually infinite" if any do. As for the second, my
introductory argument has already shown that, where risks of nuclear war are concerned,
probabilistic reasoning is inappropriate. What crucially remains to be shown is that there is any
action which we can confidently predict will make a modal change in the desired direction.
Often it seems we know no more about possibilities than about probabilities, or that opening up
some bad possibilities is the necessary price of closing off others equally bad, or that opening up
some bad possibilities is the necessary price of opening up some others that are equally good
This sort of indeterminacy, at least, seems absent in the case of nuclear weapons policy.

Alt fails – their cartography of refusal has zero mechanism or strategy for large
scale policy change – individual action has zero spillover outside of this debate
round and only the plan has a meaningful chance at making effective demands
on the state
Alt doesn’t solve the case – they leave plenary power intact by failing to change
the law – only the courts can restrain Trump, individual action has zero power
in the context of immigration
State engagement is key – without is immigrants are subject to the will of a
racist majority
Mullen-Dominguez 8 (Sarah E., Lawyer Sarah E. Mullen-Dominguez, graduated from Washington University, B.A., 2004
St. Louis University, J.D., 2008, "ALIENATING THE UNALIENABLE: EQUAL PROTECTION AND VALLEY PARK, MISSOURI’S ILLEGAL
IMMIGRATION ORDINANCE," Saint Louis University Law Journal, http://law.slu.edu/sites/default/files/Journals/sarah_mullen-
dominguez_note.pdf) KEN

Valley Park’s “illegal immigration” ordinance, and other local ordinances similar to it, may provide an opportunity for the Court to re-
consider its decision in Plyler v. Doe. Relying on the Court’s reasoning in cases examining classifications based on “documented”
alienage and on Court’s analysis in Plyler, this Comment urges the Court to carefully scrutinize the local ordinances. Because
undocumented immigrants make up a discrete and insular minority and have been the subject
of historical discrimination, they, like documented aliens, should be treated as a suspect class. Moreover,
local “illegal immigration” ordinances affect important rights, encroaching on nonEnglish speaking residents’ right to free speech and
denying undocumented immigrants access to housing and basic services. Thus, this Comment argues that the Court should employ
strict scrutiny if and when it reviews local “illegal immigration” ordinances. Finally, under an equal protection framework of analysis,
this Comment suggests that Valley Park, and presumably other state and local governments, will fail to identify a compelling state
interest that such legislation furthers. A. Threshold Issue: Scope of the Equal Protection Clause The Equal
Protection Clause of
the Fourteenth Amendment provides “no person” shall be denied equal protection of the law.94 Unlike the
Privileges and Immunities Clause also set forth in Section One of the Fourteenth Amendment, the Equal Protection Clause does not
employ the word “citizen” to describe the subjects of its general protections.95 Notably, the word “person” is not limited by any
language that would indicate that a “person” must be legally present within the United States in order to avail herself of her right to
equal protection of the laws. In Plyler, the Court affirmed this textual interpretation of the language of the Fourteenth Amendment,
referencing precedent that had extended due process and equal protection rights to all persons, regardless of their immigration
status.96 Thus, a textual interpretation of the Equal Protection Clause indicates that undocumented aliens residing in the United
States may avail themselves of its protections. B. State and Local Legislative Classifications That Discriminate Based on Alienage,
Whether Documented or Undocumented, Should Be Subject To Strict Scrutiny The primary purpose of the Fourteenth Amendment
was to protect African Americans against the harms of racial prejudice that had plagued the United States since its inception.97
However, we also know that the drafters of the Amendment chose to use general language not tied to race as a means of expanding
the scope of the Fourteenth Amendment’s protections.98 Legislative classifications based on race present the “core case” of
discriminatory classification that warrant strict judicial scrutiny in equal protection.99 However, the general language of the Equal
Protection Clause allows other groups to vindicate their right to equality under the law.100 The
Court has identified
many justifications for its heightened review of discriminatory classifications. In the case of
classifications based on alienage, the Court relied on an important rationale for applying a strict
standard of review: aliens [immigrants] are a discrete and insular minority that is politically
powerless.101 Moreover, the Court’s jurisprudence, including its rationale in cases like Yick Wo and Takahashi, emphasizes that
a history of discrimination against a particular group may indicate that a legislative classification,
even if facially neutral, may be based on stereotypes or prejudices.102 In Plyler, the Court focused on the
vulnerability of the children of undocumented immigrants affected by state discriminatory action and the importance of the right to
education. At times the Court has emphasized immutability of the trait upon which the class is drawn as a reason to scrutinize the
discriminatory classification.103 With these justifications in mind, this Comment argues that state and local legislation that
discriminates on the basis of undocumented status should be subject to close and searching judicial
scrutiny. a. Alienated from the Political Process: Undocumented Aliens, a Discrete and Insular Minority In Carolene Products’
celebrated footnote four, Justice Stone suggested that, although the Court would presume the constitutionality of most legislation,
there are three instances where heightened judicial scrutiny may be necessary under the general prohibitions of the Fourteenth
Amendment.104 In the third of these three instances, proposed in the final paragraph of the footnote, Justice Stone noted that
legislation affecting the rights of a “discrete and insular” minority demanded “more searching
judicial inquiry.”105 Justice Stone reasoned that the special condition of such discrete and insular
groups “tends to seriously curtail the operation of the political processes ordinarily to be relied
upon to protect minorities.” Professor John Hart Ely described Carolene Products footnote four as a blueprint for much of
the Warren Court’s constitutional analysis.106 The role of the judicial branch is to protect against the legislature’s tendency to want
to separate the “rulers from the ruled.”107 Ely noted that important Warren Court decisions “insisting on equal treatment for
society’s habitually unequals: notably, racial minorities, but also, aliens, ‘illegitimates,’ and poor people,”108 implicitly accepting
Justice Stone’s mandate for heightened judicial scrutiny when legislation adversely affects the rights of those whom the political
process fails to protect. Identification of documented aliens as a discrete and insular group was an important rationale in the Court’s
decision to apply strict scrutiny in evaluating the constitutionality of state legislation that discriminated based on alienage. In
Graham v. Richardson, the Court cited Carolene Products’ footnote four and described “documented” aliens as a
“prime example of a ‘discrete and insular’ minority” because they enjoyed no right to vote.109
Similarly, undocumented aliens [immigrants] are excluded from the political process. As Justice
Brennan described in Plyler, undocumented aliens are America’s “shadow population.”110 As in 1982, the
estimated number of undocumented immigrants residing in the United States today is well into the millions people.111 Each of
these millions of persons resides in the United States and is subject to federal, state and local law, but cannot protect herself via the
political process. Because
aliens enjoy no right to vote, the political process is unlikely to protect
aliens’ [immigrants’] interest, documented or undocumented. Because of their insular condition
and exclusion from the polls, undocumented aliens find it difficult to create political alliances to
affect governmental change. Although the social, cultural or familial relationships of undocumented aliens may align their
interests with the those of documented aliens, they gain little political clout by allying with another disenfranchised group.
Moreover, the majority of America’s undocumented immigrants come from Latin America, Africa
and Asia. Thus, undocumented immigrants are likely to be racial minorities as well as newcomers.
Racial minorities and nonresidents are paradigmatically powerless classes.112 Because of their
vulnerability and inability to vote, undocumented immigrants are ideal scapegoats for the
political, economic and social woes of our Nation. As racial minorities and newcomers, undocumented
immigrants encounter a double barrier to entry in the political process, making them extremely
vulnerable to the will of the majority and thus, a prime example of a discrete and insular class
which careful and exacting judicial review should protect. b. Cloak of Constitutionality: Remembering Justice
Murphy, An Ongoing History of Anti-Immigrant and Racial Animus Because the Fourteenth Amendment’s primary purpose was to
protect African Americans, theCourt has emphasized that a history of discrimination against a class of
persons makes it likely that the classification will be based on stereotypes and prejudices.113 Thus,
a classification that adversely affects the rights of a group that has historically been the subject of
discrimination is likely to warrant the most exacting standard of judicial scrutiny.114 In cases decided in the
late nineteenth and early twentieth centuries, like Yick Wo, Korematsu, and Takashaki, the Court seemed to take anti-immigrant
sentiment into account as it considered the constitutionality of state action that affected the rights of resident aliens. Justice
Murphy in his concurrence in Takashaki and in his dissent in Korematsu warned against the “winds of racial animus” that state and
local discrimination attempted to “cloak in the constitutionality” of classifications based on alienage.115 The Court in Plyler seemed
to overlook the anti-discrimination and nativist principles that are at the heart of the alienage cases that have traditionally protected
the noncitizens at the subfederal level. The Court in Plyler made no mention of racist or anti-immigrant sentiment as a motivating
force behind the state law that denied undocumented immigrant children access to public education. Twenty-four years after Plyler,
the Court’s message that state laws like Texas’s violated Equal Protection failed to deter state and local officials in towns like Valley
Park. I do not presume to assert that the Court should have included such reasoning in its decision to employ an intermediate
standard in Plyler, but rather, what I do suggest is that anti-immigrant
and racist sentiments cannot be ignored
if and when the Court considers ordinances such as Valley Park’s. The local ordinances include
preambles that indict immigrants for a host of social ills without substantiation. Moreover, the
measures that local “illegal immigration” ordinances set forth are far more aggressive than the Texas statute at issue in Plyler. As the
Court suggested in Yick Wo, local ordinances that create legislative classifications based on “hostility to the race and nationality” and
tend be implemented with “an evil eye and an unequal hand” violate the Equal Protection Clause of the Fourteenth Amendment.116
The non-recognition of discrimination based on nativism obscures current and historical
patterns of discrimination directed against Latinos and other recent immigrants, who belong to
racial minorities. Michael Wishnie, Assistant Professor of Clinical Law at New York University, suggests the Court should be
particularly concerned about anti-immigration discrimination at the state and local level because local anti-foreign
movements have an extensive history.117 Nativism has been one of the most sustained social
movements in the U.S., spanning more than 150 years.118 Racial prejudice or economic
protectionism often motivate anti-immigrant legislation.119 Historically, economic and labor concerns have
strongly influenced the strength of nativist sentiment expressed in American political discourse.120 Rene Galindo and Jami Vigil have
observed that “[n]ativism becomes especially rampant during times of national stress and fear, and
in times of war, economic recession, or demographic shifts stemming from unwanted
immigration.” 121 Galindo and Vigil suspect that restrictive local legislation may be a response to these
nativist fears, a threat to what they identify as the “core culture.”122 In the wake of 9/11, fears of “foreign”
attack on American soil and American economy generated a new wave of antiimmigrant sentiment. Drawing attention to
nativism as a term, ideology, and political practice will make visible previous and current
patterns of prejudice and discrimination directed against immigrants. While racism and nativism
are two distinct ideas, they are inexorably linked when discussing modern American anti-
immigrant attitudes. Racism and nativism overlap in complex ways. The racial and ethnic makeup of the current
immigrants to the United States has increased the volatility and sometimes vitriolic discourse of the immigration debate.
Classifications based on immigration status may be more likely to reflect racial prejudice than
nativism. Unlike the European immigrants who were targets of nativism at the turn of the
century, the nativism directed against a group of immigrants who are predominantly “people of
color” from Latin America and other nonEurporean countries.123 The race and ethnicity of these
recent immigrants illuminates the complicated collision of socio-political phenomena that
fosters powerful modern nativism, “an intersection of racism and defensive nationalism.”124 As
Professor Gerald L. Neuman has observed, “[t]he campaign for ‘Control Our Borders’ is partly a struggle for
the future racial, linguistic and cultural development of American society.”125 Pervasive forms of
discrimination mark a long history of Latino, especially Mexican, immigration to the United States.126 Events such as “Operation
Wetback,” the Zoot Suit Riot, and the struggle for the rights of the migrant farm workers in the American West illustrate the
turbulent history of the Latino immigrant in the United States. Richard Delgado argues that American society has often
treated Latinos as “undesirable, unwholesome, and foreign,” and many times these
discriminatory attitudes influence U.S. immigration policy and nationalist discourse.127 Many
opponents to the Valley Park ordinance alleged that the real motivation for the ordinance is racial animus
towards Latinos.128 Reports indicate that the ordinance has driven foreign looking and foreign
sounding residents out of Valley Park.129 Hector Molina described Valley Park’s “illegal immigration” ordinance
as an effort to “keep all the brown people out” and to “villianize the Hispanic population” of the
small municipality.130 The preamble to the ordinance indicts illegal immigrants for a host of social ills. It provides: “illegal
immigration leads to higher crime rates, contributes to overcrowded classrooms and failing schools, and destroys our neighborhoods
and diminishes our overall quality of life . . . .”131 Prior to the enactment of the ordinance, there is no evidence that any of the city
officials engaged in investigation or research to identify the effects of illegal immigration on crime rates, educational opportunities,
neighborhoods or quality of life.132 In statements to the media, Mayor Whitteaker explained the ordinances as “preventative
maintenance,” a means of “protecting [his] community” against the perceived threat of “illegal immigration.”133 City officials
admitted that they had no knowledge as to whether “illegal immigrants” resided in Valley Park.134 Moreover, the Valley Park
“illegal immigration” ordinance’s vague language and enforcement mechanisms of the local ordinances invite racial profiling and
implicitly promote employment and housing decisions based on invidious stereotypes and social prejudice. Local police rapidly
began enforcing the provisions of the ordinance, attempting to identify “illegal immigrants,” a complicated and technical charge.
Community residents report that in the days after the ordinance took effect in Valley Park, anyone who appeared Hispanic had to be
prepared to present their “papers.”135 Because the vague language of Valley Park’s ordinance, and other local ordinances like it,
fails to set forth definitions of “illegal immigrant” and fails to provide for training of local enforcement officials in to aid in identifying
immigration status and interpreting immigration documents, it implicitly encourages racial profiling as an efficient way to enforce its
regulations.136 Furthermore, the Valley Park ordinance forces landlords and business owners to evaluate the immigration status of
their tenants and employees without providing the tools necessary to identify immigration documents. The “illegal immigration”
ordinance gives members of the local community a legal guise under which they may take it upon themselves to be the immigration
officials, allowing anti-immigrant and racial stereotypes to masquerade as lawabiding behavior. Under these circumstances, a
reasonable, yet uninformed, landlord in Valley Park may refuse to rent housing to a family with a Latino surname because he does
not have the tools to decipher whether the renters’ “papers” are valid and because the he would rather refuse the potential tenant
than bear the risk of $500 municipal fine. Similarly, a reasonable Valley Park employer may refuse to hire a woman who speaks
English with an accent because the employer was not equipped with the technology to decipher if her social security card was valid.
Faced with the penalties set forth in Valley Park’s ordinance, the employer may prefer to hire another candidate than to bear the
risk of losing his business permit in addition to a $1,000 municipal fine. This difficult intersection of racist and anti-immigrant animus
surrounding the adoption of Valley Park’s ordinance and the harsh, unfounded language employed in the preamble beg the
question: Is the “disadvantage imposed born of animosity toward the class of persons affected?”137 The
Court needs to
send a clear and convincing message to state and local legislature, and to the nation, that such nativist and
arguably racist legislation is intolerable and cannot mask itself in the cloak of constitutionality by
labeling the victims of discrimination, “illegals.” A history of discrimination based on race and immigrant status is
yet another reason that the Court should analyze the Valley Park “illegal immigration” ordinance, and ordinances similar to it, under
a standard of strict scrutiny.

Empty critiques and radical upheavals devoid of concrete proposals are

incomprehensible, doomed to failure, and drive people towards reigning
ideology
Bryant 12 — Levi R. Bryant, Professor of Philosophy at Collin College, holds a Ph.D. in
Philosophy from Loyola University in Chicago, 2012 (“Underpants Gnomes: A Critique of the
Academic Left,” Larval Subjects—Levi R. Bryant’s philosophy blog, November 11th, Available
Online at http://larvalsubjects.wordpress.com/2012/11/11/underpants-gnomes-a-critique-of-
the-academic-left/, Accessed 02-21-2014)
I must be in a mood today–half irritated, half amused–because I find myself ranting. Of course, that’s not entirely unusual. So this
afternoon I came across a post by a friend quoting something discussing the environmental movement that pushed all the right
button. As the post read, For mainstream environmentalism– conservationism, green consumerism, and resource management –
humans are conceptually separated out of nature and mythically placed in privileged positions of authority and control over
ecological communities and their nonhuman constituents. What emerges is the fiction of a marketplace of ‘raw materials’ and
‘resources’ through which human-centered wants, constructed as needs, might be satisfied. The mainstream narratives are replete
with such metaphors [carbon trading!]. Natural complexity,, mutuality, and diversity are rendered virtually meaningless given
discursive parameters that reduce nature to discrete units of exchange measuring extractive capacities. Jeff Shantz, “Green
Syndicalism” While finding elements this description perplexing– I can’t say that I see many environmentalists treating nature and
culture as distinct or suggesting that we’re sovereigns of nature –I do agree that we conceive much of our relationship to the natural
world in economic terms (not a surprise that capitalism is today a universal). This, however, is not what bothers me about this
passage. WhatI wonder is just what we’re supposed to do even if all of this is true? What, given
existing conditions, are we to do if all of this is right? At least green consumerism, conservation, resource
management, and things like carbon trading are engaging in activities that are making real differences. From this passage–and
maybe the entire text would disabuse me of this conclusion–it sounds like we are to reject all of these
interventions because they remain tied to a capitalist model of production that the author (and myself)
find abhorrent. The idea seems to be that if we endorse these things we are tainting our hands and
would therefore do well to reject them altogether. The problem as I see it is that this is the
worst sort of abstraction (in the Marxist sense) and wishful thinking. Within a Marxo-Hegelian context, a thought is
abstract when it ignores all of the mediations in which a thing is embedded. For example, I understand a robust tree abstractly
when I attribute its robustness, say, to its genetics alone, ignoring the complex relations to its soil, the air, sunshine, rainfall, etc.,
that also allowed it to grow robustly in this way. This is the sort of critique we’re always leveling against the neoliberals. They are
abstract thinkers. In their doxa that individuals are entirely responsible for themselves and that they completely make themselves
by pulling themselves up by their bootstraps, neoliberals ignore all the mediations belonging to the social and material context in
which human beings develop that play a role in determining the vectors of their life. They ignore, for example, that George W. Bush
grew up in a family that was highly connected to the world of business and government and that this gave him opportunities that
someone living in a remote region of Alaska in a very different material infrastructure and set of family relations does not have. To
think concretely is to engage in a cartography of these mediations, a mapping of these networks, from circumstance to circumstance
(what I call an “onto-cartography”). It is to map assemblages, networks, or ecologies in the constitution of entities. Unfortunately,
the academic left falls prey to its own form of abstraction. It’s good at carrying out critiques that
denounce various social formations, yet very poor at proposing any sort of realistic
constructions of alternatives. This because it thinks abstractly in its own way, ignoring how
networks, assemblages, structures, or regimes of attraction would have to be remade to create
a workable alternative. Here I’m reminded by the “underpants gnomes” depicted in South Park: [YouTube video omitted]
The underpants gnomes have a plan for achieving profit that goes like this: Phase 1: Collect Underpants Phase 2: ? Phase 3: Profit!
They even have a catchy song to go with their work: [YouTube video omitted] Well this is sadly how it often is with the
academic left. Our plan seems to be as follows: Phase 1: Ultra-Radical Critique Phase 2: ?
(Question Mark) Phase 3: Revolution and complete social transformation! Our problem is that
we seem perpetually stuck at phase 1 without ever explaining what is to be done at phase 2.
Often the critiques articulated at phase 1 are right, but there are nonetheless all sorts of
problems with those critiques nonetheless. In order to reach phase 3, we have to produce new
collectives. In order for new collectives to be produced, people need to be able to hear and
understand the critiques developed at phase 1. Yet this is where everything begins to fall apart.
Even though these critiques are often right, we express them in ways that only an academic
with a PhD in critical theory and post-structural theory can understand. How exactly is Adorno to
produce an effect in the world if only PhD’s in the humanities can understand him? Who are these things for? We seem to always
To make
ignore these things and then look down our noses with disdain at the Naomi Kleins and David Graebers of the world.
matters worse, we publish our work in expensive academic journals that only universities can
afford, with presses that don’t have a wide distribution, and give our talks at expensive hotels at
academic conferences attended only by other academics. Again, who are these things for? Is it an accident
that so many activists look away from these things with contempt, thinking their more about an academic industry and tenure, than
If a tree falls in a forest and no one is there to hear it, it doesn’t make a
producing change in the world?
sound! Seriously dudes and dudettes, what are you doing? But finally, and worst of all, us Marxists and anarchists all
too often act like assholes. We denounce others, we condemn them, we berate them for not
engaging with the questions we want to engage with, and we vilify them when they don’t
embrace every bit of the doxa that we endorse. We are every bit as off-putting and unpleasant
as the fundamentalist minister or the priest of the inquisition (have people yet understood that Deleuze
and Guattari’s Anti-Oedipus was a critique of the French communist party system and the Stalinist party system, and the horrific
This type of “revolutionary” is the greatest
passions that arise out of parties and identifications in general?).
friend of the reactionary and capitalist because they do more to drive people into the embrace
of reigning ideology than to undermine reigning ideology. These are the people that keep Rush
Limbaugh in business. Well done! But this isn’t where our most serious shortcomings lie. Our most serious
shortcomings are to be found at phase 2. We almost never make concrete proposals for how
things ought to be restructured, for what new material infrastructures and semiotic fields need
to be produced, and when we do, our critique-intoxicated cynics and skeptics immediately jump
in with an analysis of all the ways in which these things contain dirty secrets, ugly motives, and
are doomed to fail. How, I wonder, are we to do anything at all when we have no concrete
proposals? We live on a planet of 6 billion people. These 6 billion people are dependent on a
certain network of production and distribution to meet the needs of their consumption. That
network of production and distribution does involve the extraction of resources, the production
of food, the maintenance of paths of transit and communication, the disposal of waste, the
building of shelters, the distribution of medicines, etc., etc., etc. What are your proposals? How
will you meet these problems? How will you navigate the existing mediations or semiotic and
material features of infrastructure? Marx and Lenin had proposals. Do you? Have you even explored the cartography
of the problem? Today we are so intellectually bankrupt on these points that we even have
theorists speaking of events and acts and talking about a return to the old socialist party
systems, ignoring the horror they generated, their failures, and not even proposing ways of
avoiding the repetition of these horrors in a new system of organization. Who among our critical
theorists is thinking seriously about how to build a distribution and production system that is responsive to the needs of global
consumption, avoiding the problems of planned economy, ie., who is doing this in a way that gets notice in our circles? Who is
addressing the problems of micro-fascism that arise with party systems (there’s a reason that it was the Negri & Hardt contingent,
not the Badiou contingent that has been the heart of the occupy movement). At least the ecologists are thinking about these things
in these terms because, well, they think ecologically. Sadly we need something more, a melding of the ecologists, the Marxists, and
the anarchists. We’re not getting it yet though, as far as I can tell. Indeed, folks seem attracted to yet another critical paradigm,
Laruelle. I would love, just for a moment, to hear a radical environmentalist talk about his ideal high school that would be
academically sound. How would he provide for the energy needs of that school? How would he meet building codes in an
environmentally sound way? How would she provide food for the students? What would be her plan for waste disposal? And most
importantly, how would she navigate the school board, the state legislature, the federal government, and all the families of these
students? What is your plan? What is your alternative? I think there are alternatives. I saw one that approached an alternative in
Rotterdam. If you want to make a truly revolutionary contribution, this is where you should start. Why should anyone
even bother listening to you if you aren’t proposing real plans? But we haven’t even gotten to that point.
Instead we’re like underpants gnomes, saying “revolution is the answer!” without addressing any
of the infrastructural questions of just how revolution is to be produced, what alternatives it
would offer, and how we would concretely go about building those alternatives. Masturbation.
“Underpants gnome” deserves to be a category in critical theory; a sort of synonym for self-
congratulatory masturbation. We need less critique not because critique isn’t important or
necessary–it is–but because we know the critiques, we know the problems. We’re intoxicated
with critique because it’s easy and safe. We best every opponent with critique. We occupy a
position of moral superiority with critique. But do we really do anything with critique? What we
need today, more than ever, is composition or carpentry. Everyone knows something is wrong.
Everyone knows this system is destructive and stacked against them. Even the Tea Party knows
something is wrong with the economic system, despite having the wrong economic theory.
None of us, however, are proposing alternatives. Instead we prefer to shout and denounce.
Good luck with that.
 States CP
1. Perm do both – shields the link
2. Can’t solve the aff – states cannot set polices to increase immigrant
populations
Johnson 12 (Kit, Associate Professor, University of Oklahoma College of Law; J.D., 2000,
University of California, Berkeley, School of Law, "Preemption of State and Local Immigration
Laws Remains Robust ," No Publication,
http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1095&context=penn_law_re
view_online)
Given the Fifth Circuit’s focus on preemption alone, supporters of the Farmers Branch ordinance were likely encouraged by the
Supreme Court’s decision in Arizona. But, while the Court upheld one part of the Arizona law, the
Court also affirmed the
continuing viability of immigration preemption, stating that “[t]he Government of the United
States has broad, undoubted power over the subject of immigration and the status of aliens.”
Arizona, 132 S. Ct. at 2498. As a consequence, the Court held that Arizona could not make it a
misdemeanor for non–U.S. citizens to fail to carry an alien registration document. Likewise, Arizona
could not make it a misdemeanor for “an unauthorized alien to knowingly apply for work, solicit work in a public place or perform
work as an employee or independent contractor.” Id. at 2503 (quoting Ariz. Rev. Stat. Ann. § 13-2928(C)). Nor, under Arizona, may
the state authorize its officers to undertake warrantless arrests of individuals believed to have committed any public offense making
them removable from the United States. Id. at 2507. Federal power withrespect to immigration is “exclusive”
and includes the authority to determine who should and should not be allowed to remain in the
United States. 8 U.S.C. § 1229a(a)(3) (2006). Thus, state and local governments may not create their own
immigration policies. Arizona, 132 S. Ct. at 2506. They certainly cannot make their own choices about
whether individuals should be allowed to remain within city limits when those decisions are
based on immigration status.
3. Can’t solve international signaling because state courts have zero place in
international law --- they don’t have the resources or capacity to engage other
actors which decks federal legitimacy
4. Wrong counterplan – all our offense is predicated off of federal jurisprudence
in relation to executive power which makes the entire aff a fed k warrant
5. Fed key – only federal action solves international power projection and
reverses declining soft power; the Supreme Court overturning plenary power is
key to affect federal immigration policy that undermines the economy and ag
industry
6. Trump might order ICE Officials into school – just the perception he might
means the plan is key.
7. doesn’t overturn the plenary powers doctrine which maintains legal
confusion over trump’s power and super-charges interstate disparities – states
like Alabama and ohio don’t care about undocumented migrants – that’s
Ontiveros and Drexler 8
8. states cant solve trump’s executive trends, individual policies, and campaign
statements/political poise and that disincentive immigration
9. doesn’t solve deference – trump will attempt a congressional end around –
executive agencies run by people like betsy devos ensures they’ll take
advantage of deference and overrule state policy – that’s Robinson and
Pazanowski 17
10. No solvency – the plenary power doctrine ensures state laws are struck
down, especially about access to schools.
Abrams 13 (Kerry, Albert Clark Tate, Jr., Professor of Law, University of Virginia School of Law,
"PLENARY POWER PREEMPTION," Virginia Law Review,
https://www.virginialawreview.org/sites/virginialawreview.org/files/601.pdf)

The core immigrationfunctions of admission and removal, then, are exclusively federal, and will
always preempt state efforts to legislate in the area (“structural preemption”). These functions are so
important to national security and national control over foreign affairs issues that when
Congress acts, courts must exercise extraordinary deference, even where fundamental
constitutional rights are at stake (the “plenary power doctrine”). But what about cases that are not
core immigration cases? Most of the statutes passed by states, up to and including S.B. 1070, do not directly attempt to regulate
immigration. Instead, they concern either enforcement—when can a police officer stop someone whom he suspects may
be here illegally?—or discrimination—when can a state or locality restrict noncitizens’ access to public
schools, welfare, or work? None of these examples is clearly “immigration law,” and in fact, most of these examples are typical of
the exercise of the state police power over the health and safety of its citizens. Their immigration aspect is their ancillary impact on
immigration. These statutes are what we might term “alienage” statutes (statutes that use alienage as a means of administering
benefits or treating residents differently from one another), but they do not focus on the “core” immigration functions identified in
the canonical structural preemption and plenary power cases.69 As a doctrinal matter, in
an alienage case a court
should apply the same preemption doctrine it would apply in any case that does not concern an
exclusively federal power. There are numerous ways in which a court could strike down state
alienage statutes without invoking structural preemption, or its close cognate, the plenary power doctrine. A court might, for
example, find that a statute violates equal protection, just as the Supreme Court found with the San Francisco laundry ordi-nance at
issue in Yick Wo. 70 Or, like state statutes in many other fields, such as environmental law, the state statute might be preempted
using a theory of express, field, or conflict preemption. To be sure, the
roots of congressional power would matter
in each of these scenarios. If Congress had no power to regulate immigration, for example, the Supremacy Clause would
not magically give it power. And the nature of the power being exercised might give the court an important clue as to whether
Congress was capable of “occupying the field.” But Congress’s power could not be plenary, or “absolute,” or it would make no sense
to undergo the preemption analysis at all. Instead, however, in
most of the preemption cases challenging state
alienage statutes that the Supreme Court has heard, the Court has applied an analysis that folds
in the national sovereignty concerns from the structural preemption and plenary power cases,
by construing the specific alienage regulation as regulations of immigration in disguise. In each
of these cases, the state in question was attempting to regulate in a way that seemed, at the
time, to be clearly within its traditional police powers. In cases where the Court struck down the legislation, it
generally did so by construing the exercise of state police power as an impermissible encroachment on the federal immigration
power, implicating the same national sovereignty issues at play in the plenary power context. Take, for example, Truax
v.
Raich, where the Court struck down a law that required employers to employ not less than
eighty percent qualified electors or native-born citizens.71 The Court construed the law as
denying noncitizens “the opportunity of earning a livelihood,” and said that this was
“tantamount to the assertion of the right to deny them entrance and abode, for in ordinary
cases they cannot live where they cannot work.”72 In Takahashi v. Fish & Game Commission, the Court used
similar logic to reject California’s claim that it was fulfilling a “special public interest” by banning
residents who were ineligible for citizenship (in other words, Japanese) from commercial fishing in California’s
coastal waters, emphasizing that the law prohibited residents “from making a living by fishing.”73 More recent cases made similar
moves; in Graham v. Richardson, for example, the Court invalidated state laws limiting welfare eligibility to U.S. citizens or long-time
lawful residents, analogizing access to welfare to the access to work discussed in Truax and Takahashi.74

11. State courts fail – rhetoric doesn’t translate to reality

Bauries 14 – (Scott R. Bauries, Summer 2014, “A COMMON-LAW CONSTITUTIONALISM FOR
THE RIGHT TO EDUCATION,” Georgia Law Review, Accessed 6/29/17,
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2479921) //ak

A close look at the numerous cases presenting ostensible state constitutional “education rights”
claims, however, reveals a mismatch between rhetoric and reality. In some education clause cases, courts cite
the fact that children have a ―right to education” under the state constitution merely as a basis for rejecting
motions to dismiss for non-justiciability—a conception of the right as a means of acquiring
“generalized grievance” standing and nothing more.12 In a few others, the existence of a
―fundamental right to education, ”modeled on federal equal protection jurisprudence13
provides the basis for holding against the state on an educational equality claim based on the
equal protection or “uniformity” provisions of the state constitution.14 In all such cases, though, both the
evidence presented and the remedies the courts order focus on the state education system as a
whole, rather than on any individual student rights-holders.15 Thus, other than as a means of surmounting
threshold obstacles to relief, an individual right to education under state constitutions is more rhetoric
than reality.16 Considering this fact, this Article makes two claims, one descriptive and the other normative. The Article‘s
central descriptive claim is that individual rights to education have not been realized under state
constitutions because the currently dominant structure of education reform litigation prevents
such realization. In state constitutional education clause claims, both pleadings and adjudication generally
focus on the equality or adequacy of the system as a whole, rather than on any particular
student‘s educational resources or attainment.17 Part II traces the roots of the currently dominant systemic
approach, and finds these roots in federal institutional reform litigation.18 This systemic focus leads to a systemic,
rather than an individual, approach to remediation, which ultimately subverts any individual
interests or rights that might have given rise to the claims in the first place.19 The systemic
approach also sets up judicial-legislative conflicts over statewide policymaking that need not
arise, and these inter-branch conflicts sometimes prevent judicial review of education claims
altogether.20 State courts‘ responses to these conflicts have made the systemic approach the
largest obstacle currently preventing state courts from recognizing individual rights to adequate
education under state constitutions.

12. No solvency – there’s no way state court decisions are able to overturn a
federal doctrine like plenary power
13. 50 states fiat is a voting issue
a. Reciprocity – we only get one actor which means the neg should too – there’s
infinite combinations of actors that the neg could fiat to solve the aff, none of
which we could predictably prepare to debate
b. Literature - there’s no solvency advocate that says all the states can do
exactly the same thing – that kills aff ground and fairness because they can just
use fiat to get around our best solvency deficits and moot the entire 1AC
c. Not real world – it’s infeasible that all the states would uniformly act and
implement the same policy – their solvency advocate doesn’t assume every
single state acting exactly the same and the lack of uniformity wrecks solvency
for the aff
d. Topic education – the CP diverts focus on whether the education policy itself
is a good idea and shifts the debate to minutia about the process of the plan –
we’re here to learn about education, not about the potential for state action
e. Reject the team – that sets a precedent and deters their model of debate
14. Confusion tanks solvency and requires overruling precedent which links to
the net benefit
15. State courts have zero place in international law --- they don’t have the
resources or capacity to engage other actors which decks federal legitimacy
Kalb 11 (Johanna, Associate Professor of Law at the Loyola University New Orleans, “Human
Rights Treaties in State Courts: The International Prospects of State Constitutionalism after
Medellín,” Penn State Law Review, p. 1070-1071)
 From this study it appears that state courts, with notable exceptions, have been somewhat slow to
answer the call to engage with international human rights treaty law. In some ways, the absence
here parallels the failure of independent state constitutionalism more generally.100 Indeed, some
of the barriers are likely similar. At the technical level, state courts face considerably larger case loads and
may be more vulnerable to the political consequences of accepting treaty-based claims.101
Their ability to consider these claims may also be limited by their own lack of expertise with
these materials, and by the failure of the parties to make arguments based on international or
comparative sources. To the extent that these explanations are valid,102 many of these barriers are already in the process
of being overcome.103 Increasingly, there are educational opportunities for state court judges to learn to handle international
claims. For example, international materials are becoming more accessible in legal education. More law clerks (and future judges)
will be exposed in law school to basic international law principles and will have the opportunity to apply these principles in a
human rights clinic. Additionally, interest has grown among American lawyers in the area of international human rights law. “Like
judges, they are meeting with their global counterparts and being exposed to new ideas. . . . Legal organizations like the ACLU and
the ABA now have conferences on international law and international human rights, such as the ACLU Human Rights at Home:
International Law in U.S. Courts Conference.”104 Thus, to the extent that the explanation is logistical, it is likely that we will see
an increase in the use of these sources as the consideration of these instruments becomes easier.105 Alternatively, it is possible
that thereis a more fundamental tension between the project of state constitutionalism and
that of international human rights law that is blocking broader engagement with these
instruments at the state level. The normative justification for independent state
constitutionalism—that is, one that goes beyond the instrumental value of incorporating at the state level policies that
cannot be implemented nationally—is that state constitutions do and should reflect the
variations in the polity. In this view, a “state constitution is a fit place for the people of a state to record their moral
values, their definition of justice, their hopes for a common good. A state constitution defines a way of life.”106 James
Gardner has argued that this model does not reflect the reality of the United States’ modern
political community and that this “type of robust state constitutionalism . . . could pose a serious threat
to the nationwide stability and sense of community that nationalism constitutionalism provides.”107 These
critiques are equally applicable to the use of international human rights law in the project of
state constitutionalism in that they undermine the legitimacy of statelevel innovation. Moreover,
the use of international human rights law to advance this project presents an additional challenge
given the tension between the universal principles these instruments embody and the
promotion of distinct and distinctive state constitutions. My purpose here is not to resolve either the pragmatic
or normative challenges to international state constitutionalism. Rather, my focus has been on what the limited
existing state court jurisprudence reveals about the instrumental possibilities of international state
constitutionalism as an advocacy strategy.
 Midterms
Trump needs to adopt a more conciliatory policy stance to avoid a Dem wave in
November
David Lauter, journalist, “As 2017 Ends, Republicans Struggle to Counter a Democratic Wave,”
LOS ANGELES TIMES, 12—31—17, www.latimes.com/politics/la-na-pol-midterm-outlook-
20171226-story.html, accessed 1-1-18.

The clock is ticking on the Republican majority in Congress: The GOP has just over 10 months to
avoid a rout in 2018.

Republicans could do it. They have time and several important factors on their side: a good
economy, low crime rates, achievements of significance to the party’s followers.

Nevertheless, as 2017 closes, almost all signs point toward big Democratic gains next year,
largely driven by President Trump’s widespread unpopularity. And some of the pugnacious
instincts that helped the president win election a year ago may now be worsening his party’s
dilemma.

Midterm elections “are a referendum on the party in power,” notes Sean Trende, political
analyst for the Real Clear Politics website. During the Obama years, Trende correctly forecast
that Democrats had underestimated the potential of a surge of conservative white Americans
voting Republican. Now, he says, Republicans are making a mistake in assuming that turnout will
once again favor them in an off-year election.

Trump has “terrible numbers,” Democrats have a large advantage in polls, and “it all adds up to
a really rough midterm” for the GOP, Trende says.

The trouble for Republicans comes despite some of the best economic conditions in years,
which normally would boost the party in power. Unfortunately for Republican candidates, a
majority of Americans continues to believe the country is headed in the wrong direction, despite
the good economic news.

Much of that discontent appears to center on one person — the president.

Throughout the year, opposition to Trump has generated energy among Democrats. But
something new has been added to the mix in recent months, said Joe Trippi, the veteran
Democratic consultant who served as media strategist for Doug Jones’ upset Senate election this
month in Alabama.

“The sense of chaos, the constant fight, fight, fight and alarm bells going off all the time” has
deeply troubled voters, including many who backed Trump last year, Trippi said. “There’s this
sense of being on edge,” which Alabamians talked about frequently, Trippi said. “That’s what
they don’t want anymore.”
Alabama’s election had unique aspects, notably the flaws of the Republican candidate, Roy
Moore. But that same voter anxiety has come up repeatedly in focus groups around the country.

If a year of Trump has put voters in the mood for less confrontation, that poses a big challenge
for Republicans.

“I don’t know how you stop Donald Trump from putting people on edge,” Trippi said. “That’s
what he does.”

Indeed, even if conflict weren’t so deeply ingrained in Trump’s personality, political calculation
might lead him to continue seeking out battles at every turn. Voters as a whole may not like it,
but to Trump’s most fervent supporters, his willingness to fight forms a major part of his draw.
His former strategist, Stephen K. Bannon, threatens to add to the political tension by backing
challengers to several Republican incumbents.

Trump’s hard-core supporters remain loyal and probably always will. But for all the attention
they get from the White House — and often from the news media — Trump’s fervent backers
make up only about one-fifth of the public and are outnumbered about 2 to 1 by fervent
opponents.

Indeed, the gap between the share of Americans who say they “strongly disapprove” of Trump
and those who “strongly approve” has grown significantly this year. In polls by SurveyMonkey,
for example, the margin now stands at 26 percentage points, up from 16 points at the start of
the year.

Those numbers form just one of several indicators of problems for Republicans. The most basic
comes from the so-called generic ballot — a question polls have used for decades that asks
which party’s candidate a person plans to vote for in the next election. It has long proven among
the most reliable forecasting tools in American politics.

For most of the fall, Democrats showed a healthy lead on that question — enough to suggest
the midterms would be competitive. This month, the forecast took an abrupt jump in one
nonpartisan survey after another — to 13 points in a poll from Marist College, 15 in Quinnipiac
University’s poll, 15 from a Monmouth University survey and 18 points, a previously unheard-of
level, in a poll for CNN.

Exactly why the numbers for the GOP worsened is unknown, although the timing suggests the
unpopularity of the Republican tax bill played a role. What is knowable is that even discounting
the biggest numbers, the Democrats’ lead on the generic ballot surpasses that of any party out
of power in decades.

The average size of the Democratic advantage forecasts that if the election were held now, they
would gain in the neighborhood of 40 seats in the House — considerably more than the 24 they
would need for a majority.

For those who don’t trust polls, actual election results point the same way. Some of the contests
have gotten wide attention, including the Alabama Senate race and the Virginia election in
November, in which Democrats won the governorship and all but wiped out a huge Republican
majority in the lower house of the Legislature.
Other, less heralded contests have shown the same pattern of high Democratic turnout,
depressed Republican voting and double-digit shifts in partisan outcomes, particularly in
suburban areas where Trump fares worse than a typical Republican.

On average, Democrats have done about 12 points better than expected in races across the
country this year, according to an analysis of more than 70 special elections by the
fivethirtyeight.com website. Looking just at federal election contests, the swing has been larger,
a 16-point shift toward Democrats. That’s a margin similar to 2006, the last time a pro-
Democratic wave swept the party to control of the House as well as the Senate.

The current size of the Democratic advantage would overwhelm two of the protections
Republicans have counted on — gerrymandering in the House and, in the Senate, a favorable
lineup of state contests.

In the House, partisan gerrymandering has helped pad Republican majorities in the last three
national elections. But a gerrymander works by taking a party’s voters and spreading them out
over as many districts as possible — ensuring just enough to win — while packing the other
party’s voters into as small a number of districts as clever line-drawing will allow.

The result can allow a party to win a big majority of districts even with a small majority — or
sometimes even a minority — of votes cast. But when a wave hits, a lot of those “just enough to
win” districts suddenly get swamped at the same time.

Just that sort of wave brought the GOP to power in 2010 in the House. Now, the indicators point
to a Democratic surge.

In the Senate, where one-third of the 100 seats are up for election in 2018, the selection favors
Republicans.

Of the 34 contests, including a special election in Minnesota, Democrats have 26 incumbents to

defend. Several hold seats in states Trump won last year. Defending all that territory gives
Democrats a harder job.

To win a Senate majority, Democrats would have to hold onto all their current seats and take
two from the Republicans. That’s not impossible — Republican seats in Nevada and Arizona are
at risk — but clearly it is a tough road.

Republicans who think the map alone will save them have gotten a stern warning from Senate
Majority Leader Mitch McConnell of Kentucky.

“The environment today is not great, the generic ballot’s not good, and I’d love to see the
president’s approval rating higher,” McConnell said in a year-end interview with the Washington
Examiner, a conservative publication. “I think we should anticipate a real knockdown, drag-out
— even on the Senate side.”
Dems will win House and Senate
David Faris, Associate Professor, Political science, Roosevelt University, “Congratulations,
Republicans. You Just Gave Democrats the Senate,” THE WEEK, 12—21—17,
http://theweek.com/articles/744346/congratulations-republicans-just-gave-democrats-senate,
accessed 12-31-17.

Yesterday Republicans succeeded, finally, in passing a tax "reform" abomination that is deeply,
widely, and rightly reviled. As they were hastily and dutifully completing the task of selling out
middle and working class Americans to give their donors cash for that critical third yacht, three
new polls were released showing Republicans 12, 15, and 18 points down to Democrats in next
year's race for the House of Representatives, numbers that would make it all but impossible for
Republicans to preserve their majority in the chamber.

At this point, smart gamblers are probably putting big, beautiful stacks of chips on the
Democrats. Conservative analyst Sean Trende of RealClearPolitics, a man not known for
hyperbole, tweeted that he expects as many as 40 seats to light up blue (Democrats only need
24), if not more. Public Policy Polling has been testing individual House contests this fall, and
without even sniffing around all of the expected battleground races, found 25 where the
Republican trails a generic or specific Democrat, with many more once-impregnable fortress
districts that are crazy close. And Republicans, already weary from a schedule of mindlessly
serving their well-heeled overlords, have another 11 months of frenzied lunacy from the most
unhinged White House in American history to get through and a 2018 legislative agenda that
could charitably be called empty and unpromising.

These catastrophic numbers are all but certain to get worse by November 2018. For Republicans
hopeful that people will warm to the very modest and very temporary tax relief that will be
enjoyed by some, though not all, non-Richistanis, there is a small problem: 2018 taxes won't be
filed until 5 months after the midterm elections, and people are unlikely to forgive the GOP its
many treacherous trespasses this year because they found an extra 18 bucks in their weekly
paycheck. And if they continue on this trajectory of achieving virtually nothing except
torpedoing insurance markets and gift-wrapping tax goodies for real estate speculators,
Republicans might hand the Democrats a filibuster-proof Senate majority over the next two
cycles.

Just a few months ago, the 2018 Senate map looked apocalyptic for Democrats. The party must
defend 25 seats next year (26 if Al Franken goes through with his resignation), with a whopping
10 of them in states won by President Trump, several by blowout margins. Republicans entered
2017 with a not-unreasonable confidence that they might buck historical trends and expand
their majority in 2018. But after a year of non-stop scandal, ugly political chaos, and declining
public faith in the party and its inept leadership, everything looks different. Republicans now risk
losing the Senate, and not necessarily just by a single seat. And if this partisan environment
persists, they might deliver a filibuster-proof Senate majority to a unified government of
vengeful Democrats in 2020.
Can this really be? If data from elections in 2017 is any indication, yes. The average swing from
2016 across the seven special elections for the House and Senate over the past year has been 16
points toward team blue. It was an expression of broad disgust with the performance of the
president and the Republican Party across a very diverse set of races.

What would a 16-point swing mean for next year's Senate elections if those numbers held up for
Democrats? Most obviously, Nevada's hapless senior senator, Republican Dean Heller, is history.
That kind of wave will also make it very difficult for any Republican in Arizona to hold retiring
Sen. Jeff Flake's seat. Combined with the shock victory of Democrat Doug Jones over Roy Moore
in Alabama last week, those two pickups would be enough to flip the Senate if Democrats win all
of their toughest races.

But this Republican carnage might not stop at narrowly tossing away their majority. Do you
know who else is endangered by a 16-point swing against the Republican Party? Ted Cruz. The
junior senator from Texas won his last race in 2012 by just over 16 points in a state that is
gradually but unmistakably being transformed into a battleground. A June 2017 poll put his
approval rating at just 38 percent. President Trump carried Texas by fewer than 10 points, and
the Democrats have a superb recruit in Congressman Beto O'Rourke. Similarly, the Tennessee
seat held by retiring Republican Bob Corker is now very much in jeopardy. While Corker won his
last race by 34 points, it was against a total lunatic who rightly lacked any party support
whatsoever.

Wave elections also sometimes unexpectedly endanger what were presumed to be seats so safe
you could leave their front doors wide open. This is how Republican Mark Kirk captured a ticket
to D.C. out of Illinois in 2010. A 16-point swing against the Republican Party also puts people like
Roger Wicker (Miss.) and Deb Fischer (Neb.) in peril. At minimum, if the polling looks this bad for
the GOP by mid-summer, Republicans are going to have to use scarce resources defending seats
they never thought in a million years would be in play. And Democrats who would be vulnerable
in just about any other election year, like Heidi Heitkamp (N.D.) and Joe Donnelly (Ind.), may
very well survive.

If Democrats pick up four seats instead of just two next November, they will also set themselves
up for a historic victory in 2020, when they could conceivably win a filibuster-proof majority of
60 or more. If you think that's impossible, you're not looking closely enough at the map, which is
almost a mirror-image of the challenging one facing Democrats next year; 21 Republican seats
will be up against just 11 for the Dems, and the only Democratic seat that looks dicey right now
is Jones in Alabama.

Meanwhile, Republicans would face difficult races in Colorado, Georgia, Maine, and North
Carolina even under toss-up partisan conditions. If things are this grim three years from now,
they could pretty easily cough up all four of those seats (with special thanks to Susan Collins
destroying her reputation by voting for the tax bill), leaving Democrats just three short of being
able to do whatever they damn well please in Congress. Those three pick-ups could come from
many different places, depending on retirements.
Court Stripping
 2AC – General
1. Empirically denied – every Supreme Court decision is controversial and court
stripping has never occurred
2. Congress has a historical precedent to avoid court stripping – won’t happen
no matter how controversial the Supreme Court is
Geyh 6 (Charles Gardner Geyh, John F. Kimberling Professor of Law at the Indiana University
Maurer School of Law, 2006, “Why Courts & Congress Collide, and Why Their Conflicts Subside,”
Insights on Law and Society 7.1, American Bar Association, Accessed 9/3/17 // MH)

Despite the presence of these weapons in its arsenal, Congress has deployed them only rarely,
and with decreasing frequency. In 1802, Con-gress disestablished sixteen federal judgeships
created the year before (when the opposing political party was in power) and in so doing effectively removed
the unpopular judges from office—a trick Congress would never repeat in over two centuries
since. In 1805, the House impeached but the Senate declined to remove a justice of the Supreme
Court for high-handed decision making. It was a precedent that would stick: despite repeated efforts,
Congress has never removed a judge for making unpopular or outrageous deci-sions. In 1867,
Congress stripped the Supreme Court of jurisdiction to hear a politically sensitive, pending case—a tactic it has often proposed but
almost never approved in the years since. And in 1937, President Franklin Roosevelt proposed an unprecedented plan to pack the
Supreme Court with addi-tional justices so as to shift the Court’s decision-making majority in his favor —a plan which received a cool
recep-tion in Congress, and which has never been resurrected in the nearly seventy years since. The
courts, of course,
have weapons too. They could theoretically make indiscriminate use of their power of judicial review to hold Congress at bay
by declaring act after act uncon-stitutional. But that has never happened either. To the contrary, the courts have
developed an impressive array of prudential doctrines enabling them to avoid deciding
constitutional ques-tions that could provoke confrontations with Congress.

3. Congress won’t strip the courts – even if they try, the bills won’t pass
Baum 3 (Lawrence , Department of Political Science, Ohio State University, “The Supreme
Court in American Politics,”
http://arjournals.annualreviews.org/doi/full/10.1146/annurev.polisci.6.121901.085526;jsessioni
d=n1HzQqZJALRe)
For Dahl, of course, the challenge stems partly from the sheer volume of intervention in the current era. Just as important, the
Court's active participation in policy making has continued for a long period. Dahl suggested that
significant interventions occur chiefly in transitional periods, similar to what other scholars have labeled realignments.The several
decades since 1960 are too long to be labeled a transitional period. On the other hand, this is an era in which partisan control of
House, Senate, and presidency has been divided most of the time. In such an era, it is difficult even to identify a law-making
Congress can do more damage
majority, let alone characterize the Court's interventions in relation to that majority.
when it attacks the Court itself. But Congress seldom uses its institutional powers against the
Court in significant ways. For example, the Court's size has not been changed since the 1860s.
Over that period, its jurisdiction has never been cut back as a negative response to its policies
despite a long list of bills with that purpose.

4. Congressional backlash will not lead to jurisdiction stripping measures and

can’t turn the aff
Devins 11 (Neal Devins is a Goodrich Professor of Law and Professor of Government, College
of William and Mary, “Should the Supreme Court Fear Congress?,”
http://www.minnesotalawreview.org/wp-content/uploads/2011/11/Devins_Final1.pdf,
Minnesota Law Review, p. 1358-1362)
Unlike the Warren era (where a potent coalition of lawmakers was truly upset with Court decision making), today’s Congress is not
at all disappointed with Rehnquist Court decision making. Its anticourt rhetoric, for reasons detailed in Part II, is tied to lawmaker
incentives to strengthen ties with their political base.118 Unless and until the goals of social conservatives are also acceptable to
majorities in both houses of Congress and the White House, the
current wave of attacks against the judiciary
should be seen as symbolic politics. Indeed, even if the social conservative agenda becomes the
dominant agenda in Congress and the White House, there is good reason to think that elected
officials would steer away from jurisdiction-stripping measures.119 First, median voters have historically
backed judicial independence. For example, although most Americans are disappointed with individual Supreme Court decisions,
there is a “reservoir of support” for the power of the Court to independently interpret the
Constitution.120 Consequently, even though some Supreme Court decisions trigger a backlash by
those who disagree with the Court’s rulings, the American people nonetheless support judicial
review and an independent judiciary.121 Indeed, even President George W. Bush and Senate majority leader Bill Frist
backed “judicial independence” after the federal courts refused to challenge state court factfinding in the Terri Schiavo case.122
Second, there is an additional cost to lawmakers who want to countermand the courts through
coercive court-curbing measures. Specifically, powerful interest groups sometimes see an
independent judiciary as a way to protect the legislative deals they make.123 In particular, interest
groups who invest in the legislative process by securing legislation that favors their preferences may be at odds with the current
legislature or executive (who may prefer judicial interpretations that undermine the original intent of the law). Court-curbing
measures “that impair the functioning of the judiciary” are therefore disfavored because they
“impose costs on all who use the courts, including various politically effective groups and
indeed the beneficiaries of whatever legislation the current legislature has enacted.” 124 Third
(and correspondingly), lawmakers who disapprove of court decision making can usually express that disapproval without pursuing
court-curbing legislation. This is especially true of federalism rulings. Rather than foreclose democratic outlets, federalism rulings
can be circumvented by both Con-gress and the states.125 Congress
can advance the same legislative agenda by
making use of another source of federal power and/or enacting a scaled-down version of the
bill.126 Interest groups, moreover, need not rely exclusively on Congress. They can also turn to the states
to enact state versions of the very law that Congress could not enact.127 Rights-based rulings, in contrast, severely limit lawmaker
responses. Consider, for example, abortion rights. After Roe, neither federal nor state lawmakers could regulate abortion in the first
trimester.128 Likewise, Supreme Court decisions on school busing and school prayer could not be nullified through legislation.129 At
the same time, rights-based rulings do not completely foreclose democratic outlets. Congress can eliminate federal funding and
otherwise express its disapproval of the Supreme Court.130 Fourth, jurisdiction-stripping measures do not nullify
Supreme Court rulings (or, for that matter, any court ruling). Consequently, since proponents of court-stripping
cannot count on state courts to back their policy agenda, these bills may not accomplish all that
much.131 Accordingly, interest groups may be better off pursuing their substantive agenda
through funding bans, constitutional amendments, the enactment of related legislation, and the
appointment of judges and Justices. Courtcurbing measures, in contrast, seem more a
rhetorical rallying call than a roadmap for change.

5. Olafsion in 99 – bringin immigration into unity of other areas of other areas

of constitutional laws causes an increase of court legitimacy, proves aff solves
Court Clog
 2AC AT Court Clog – TL
Case outweighs – diversionary nuclear war from economic decline is coming
within a year – outweighs their nebulous impact claims about IPR
There has never been a flood which means have a high threshold for the link –
absent evidence specific to the aff you should reject it on face
Stern 3 — (Toby J. Stern, JD Candidate @ Penn, “Comment: Federal Judges and Fearing the
‘Floodgates Of Litigation’,” 6 U. Pa. J. Const. L. 377, November 2003, lexis)

1. Predictability∂ One of the most easily identifiable problems with the

floodgates argument is that it is rarely, if
ever, followed by a true analysis of the potential litigation of which it speaks. That is, one response to a
floodgates argument might be, "Are you sure that a contrary position would yield a flood of litigation?"
n182∂ This criticism is frequently leveled against the floodgates argument, especially in the realm of tort litigation. n183 For
example, as one commentator has argued:∂ [*403] ∂ The "floodgates
of litigation" argument has proven wrong
time and again. The lifting of the "impact" rule in rewarding damages for mental anguish,
allowing third parties to recover under contracts, and the recognition of the right to privacy,
were all prophesied to overwhelm the courts with frivolous claims. They have not. n184∂ This
argument, one should think, is relatively strong. While the floodgates argument is generally based on
policy considerations, n185 policy arguments are rarely so indeterminate. While moral arguments are
certainly not precise - one cannot quantify, say, "fairness" or "justice" - they are simply used differently. That is, when a judge says
that a decision "promotes justice," n186 he or she is not speaking about a tangible, actual result. In contrast, when
a judge
expresses that a decision will open the floodgates of litigation, he or she is saying that there will
be actual, cognizable caseload results from the decision.∂ Given how often the floodgates do not
open when we are warned that they will, n187 making the argument without a proper
foundation is dangerous. While there certainly are situations in which a judge should consider the implications of a
decision on his or her [*404] caseload, n188 doing so without considering the factual bases of those
implications is problematic. n189 And while uncertainty is an unavoidable part of the law, n190 the
language with which the floodgates argument is regularly employed expresses anything but
conjecture and uncertainty. The arguments are forceful; they are intended to conjure "images of a
destructive, elemental force." n191 After all, as Judge Posner notes, "So irregular has been the growth of
the caseloads of each of the three tiers of the federal judiciary in the past, and so many and
poorly understood are the causes of changes in judicial caseloads, that it is impossible to make
responsible predictions about future changes." n192 The failure of judges to recognize this
limitation of the argument reduces the weight afforded thereto.

Non-unique and turn – immigration cases are clogging the courts now because
of Trump XOs – reversal solves
Casteel et al 17 — (Kathryn Casteel, writer @ FiveThirtyEight, Ben Casselman, senior editor
and chief economics writer @ FiveThirtyEight, Anna Maria Barry-Jester, writer @
FiveThirtyEight, "TrumpBeat: Immigration Arrests Are Swamping The Court System",
FiveThirtyEight, 5-19-2017, Available Online at https://fivethirtyeight.com/features/trumpbeat-
immigration-arrests-are-swamping-the-court-system/, accessed 8-20-2017)

Immigration: Adding to the backlog∂ Trump’s agenda may have gotten off to a slow start in Congress, but his administration
has moved quickly in another area: immigration enforcement. Immigration arrests during
Trump’s first 100 days were up 37.6 percent from the same period a year ago, according to a
report released this week by Immigration and Customs Enforcement. Roughly 75 percent of
those arrested had been convicted of non-immigration offenses, but approximately 10,800 were
noncriminal arrests, up more than 150 percent percent from 2016.∂ Trump hasn’t just vowed to arrest undocumented
immigrants, however. He has promised to deport them. And that could be a challenge: The big increase
in noncriminal arrests could create frenzy in immigration courts that are already overloaded
with cases. “On one hand the administration is saying they have these priorities and they’re
going on the worst of the worst,” said Joshua Breisblatt, a policy analyst at the American Immigration Council. “When
they came out with these executive orders, all they actually did was make everybody a
priority.”∂ When Trump took office, he inherited an immigration court system with a backlog of more than half a million pending
cases, with proceedings often taking years to be completed. The situation has gotten worse since Trump took office: As of April, the
backlog had grown to 585,930 cases, according to the Transactional Records Access
Clearinghouse at Syracuse University. But the problem is nothing new: The lack of judges to
oversee the rapid increase of immigration cases has been an issue for over a decade. According to
the Executive Office for Immigration Review, there are currently 318 immigration judges serving nationwide
out of the 374 positions authorized by Congress. In March, Trump requested an increase of nearly
$80 million in his budget for the Department of Justice to hire 75 additional immigration judge
teams. However, last year Human Rights First, a nonprofit advocacy organization, estimated that the
court needs 524 judges to work through the backlog of cases.∂ Along with funding the additional judges, the
administration could pursue efforts to bypass immigration courts in general. In a memo in February, Homeland Security Secretary
John Kelly, highlighted the backlog in court cases as a justification for expedited removal, in which
people can be deported without going through the usual court process. Under the Immigration and Nationality Act, anyone who
arrives in the U.S. without valid documents or is apprehended within 100 miles of the border within 14 days of arrival is subjected to
expedited removal. But
the Department of Homeland Security has the authority to apply the
expedited process to anyone apprehended in the country if they can’t show they’ve consistently
been here for two years. Breisblatt said the administration’s flexibility is limited, however. “There’s only so much
DHS can do without violating their due process,” he said.∂ Congress may soon take steps to
further expand the president’s authority to enforce immigration laws. The House Judiciary committee
this week considered bills that would authorize both ICE and Citizenship and Immigration Services to increase the number of
deportation officers, among other provisions.

Patent decisions flood the docket now but they just adapt by allowing more to
be argued – only we have empirics
Williams 6-20 — (Eliot D. Williams, Lawyer @ Baker Botts whose practice focuses on
intellectual property, "Federal Circuit Faces Explosion of PTAB Appeals", Baker Bott, 6-20-2017,
Available Online at http://www.lexology.com/library/detail.aspx?g=b2a92d7c-11c2-4df2-83df-
fe973534dcfa, accessed 7-14-2017)

Appeals from Patent Trial and Appeal Board decisions have flooded the docket of the Court of
Appeals for the Federal Circuit (CAFC) in the last few years, substantially altering the makeup of
that court’s docket.∂ Based on publicly available docket data, the number of appeals from the Patent and
Trademark Office (PTO) pending at the CAFC has exploded from just over 100 in 2013 (when the first
PTAB Trials under the America Invents Act were still winding their way through the PTAB) to over 630 PTO appeals
pending as of May 2017. Over that same period, PTO appeals have gone from 11% of the CAFC’s
docket, to over 40%. In contrast, appeals from the district courts have dropped from 44% of the
CAFC’s docket to under 35%.∂ As the graph indicates, this dramatic increase in appeals from PTO
proceedings has not been offset by a substantial decrease in district court appeals. As a result, the
number of total cases pending at the CAFC has increased over 50% from May 2013 to May
2017.∂ This change to the CAFC’s caseload has already had an obvious impact on the court. In particular, the court recently
began expanding its argument calendar to six days of argument per month, rather than the traditional
five days, permitting additional cases to be calendared for argument. So far, the change to the court’s
caseload has not substantially impacted the court’s time to resolution statistics. However, assuming this situation persists, it would
not be surprising to see a lengthening of case pendency times.

IPR doesn’t solve innovation

Main 9 (Sherry Main is Chief Communications & Marketing Officer at University of California,
Santa Cruz, with degrees from Harvard and John F. Kennedy School of Government. “Study Finds
Patents Systems May Discourage Innovation” 7/27/2009. https://phys.org/news/2009-07-
patent-discourage.html)

(PhysOrg.com) -- A
new study challenges the traditional view that patents foster innovation,
suggesting instead that they may hinder technological progress, economic activity and societal
wealth. These results could have important policy implications, because many countries count
on patent systems to spur new technology and promote economic growth.∂ To examine the effect of
patents on technological innovation, Bill Tomlinson of UC Irvine’s Donald Bren School of Information and Computer Sciences and
Andrew Torrance of the University of Kansas School of Law developed an online game simulating the U.S. patent system.∂ PatentSim
features an abstract model of the innovation process, a database of potential innovations and a network through which users can
interact with one another to license, assign, buy, infringe and enforce patents. The software allows players to simulate the
innovation process under a traditional patent system; a “commons” system, in which no patent protection is available; or a system
with both patents and open-source protection.∂ “In PatentSim, we found that the patent system did not work to
spur innovation,” said Tomlinson, associate professor of informatics. “In fact, participants were
more likely to innovate when there was no intellectual property protection at all, or when they
could open-source their innovations and share them with other people.”∂ The researchers
measured the efficacy of the three systems based on innovation, the number of inventions;
productivity, a measure of economic activity; and societal wealth, the ability to generate
money.∂ Players were first-year law students who had never had intellectual property coursework. Tomlinson and Torrance plan
further studies with subjects of different backgrounds, including M.B.A. students at Harvard University.∂ “Current patent
laws are based on century-old assumptions that patents spur technological progress, and few
have questioned this,” said Torrance, associate professor of law. “If it turns out that our laws are
based upon misinformation and bad assumptions, society may be failing to promote beneficial
new technologies that could improve quality of life.”
 Amendment
Permutation do both
CPs must be textually and functionally competitive – education – they shift the
focus of the debate from the aff to tiny shifts which narrows debate to process
questions – ground – we can’t generate offense against tiny shifts in the plan –
justifies permutation do the counterplan
Uniform state fiat is a voting issue –
Distorts the lit base – the controversy is about uniform vs state patchwork not fed vs state –
they don’t have a solvency advocate

Aff strategy – destroys 1AC choice since they have to be based only on answering the States CP
which skirts the core of the topic – destroys education and fairness

Voting issue for research and topic choice - reject the team since the damage has already been
done

Also justifies perm do the CP

Doesn’t solve the aff – reversing the plenary power doctrine requires court
action because it’s a court procedure, not a law – an amendment that
establishes an RTE for undocumented children is seen as an exception to
plenary power because the courts are still deciding every other area of
immigration law based on it – specific supreme court action to overrule the
political branches is key – that’s Ontiveros and Drexler
There’s a delay deficit – amendments take two years to ratify – 1AC says
recession comes next year
Ma 11 (Dan, Research Associate at Case Western Reserve University, 2-2-2011, "A Statistical Look at the Amendments to the
United States Constitution," Introductory Statistics, https://introductorystats.wordpress.com/2011/02/02/a-statistical-look-at-the-
ammendments-to-the-united-states-constitution/) KEN

The Constitution of the United States is the supreme law of the United States. The framers of the Constitution were aware that
changes to the Constitution would be necessary from time to time. A two-part process was set up for proposing and ratifying
amendments to the Constitution. There are currently 27 amendments to the Constitution. The first 10 amendments are known
collectively as the Bill of Right. The most recent amendment, the 27th, was ratified in 1992. On
average, how long did it
take to ratify an amendment (the average time from proposal to enactment)? How speedy or lengthy was the
process? In this post, we first informally discuss the time from proposal to enactment for these amendments. Then we look at the
27 amendments in more details through descriptive statistics, which entails describing the data graphically and using numerical
summaries. We also discuss the notion of resistant statistic. In particular, median is resistant to extreme data values while mean is
not. The following tables show the dates for the amendments and the time span (in months) from proposal to enactment. An
Informal Look The time it took an amendment to become law varied. The 26th amendment (establishing 18 as the national voting
age) only took 3 months and 8 days. No doubt, this one was propelled by popular demand. The longest one was the 27th
amendment (restricting the power of Congress to set its own salary) took over 202 years! Obviously the 27th amendment is an
outlier. The next longest one was the 22nd amendment (presidential term limit) and it took 3 years and 11 months. In fact, nine of
the amendments took a year or less to become law. Except for 16th, 22nd and 27th, all of the amendments took less than 3 years to
become the law of the land. As long as an amendment made it out of the starting gate, the process to enactment was quite speedy.
Descriptive Statistics Since the 27th amendment is an extreme data value, we exclude it from the analysis. It seems that the road to
enactment for the 27th amendment had a long and tortuous journey, which we do not want to focus on here. Including the 27th will
make any graph excessively wide, thus providing no insight. So we will focus on the overall pattern of the first 26
amendments. We use this strategy for data analysis: 1. start with a graphical display of the data, 2. look for the overall pattern
and note any deviations from that pattern, and 3, use numerical summaries to describe certain aspects of the data (see [1]). All the
numerical summaries are calculated using the calculator TI83 plus. To display one-variable data such as the time to enactment for
the amendments to the Constitution, we can use histogram, stemplot, or boxplot. In this post, we use histogram and stemplot to
display the data. Once we have a graph, we describe the distribution of the time to enactment (the overall pattern) by noting its
shape, center and spread and noting any outliers (individual values that fall outside of the overall pattern). Then we discuss the
numerical summaries of center and spread in more details. The following is a frequency distribution of the time to enactment data.
Figure 1 is a histogram and Figure 2 is a stemplot. What is the overall pattern of the distribution of the time to enactment of the 26
amendments? Shape: The distribution is roughly symmetric (it is a little skewed but the skewness is not pronounced). Center: The
midpoint of the distribution is 22 (taking the average of the 13th and 14th leaves in the stemplot). Spread: The spread is from 3 to 47
months. There are no obvious outliers or other striking deviations from the overall pattern. What are some numerical summaries
that we can use to describe the distribution of the time to enactment for the amendments? There are two types of measures to
consider, the measures of center and the measures of spread. A measure of center is a numerical summary that attempts to
describe what a typical data value might look like. A measure of spread is a numerical summary that describes the degree to which
the data are spread out. Two common measures of center are mean and median. The mean time
to enactment for an
amendment is =20.35 months. The median time to enactment is 22 months. With either notion
of center, the average time to enactment is just a little under two years

Amendment doesn’t solve – doesn’t make courts stop using the doctrine
because the supreme court hasn’t ruled – impact is nuke war
The CP links to court legitimacy and destroys rule of law
Sullivan 96 — (Kathleen M. Sullivan, Professor of Law @ Stanford, “Constitutional Constancy:
Why Congress Should Cure Itself of Amendment Fever,” 17 Cardozo L. Rev. 691, 1996, lexis)

V. The Role of the Court

How have we managed to survive over two hundred years of social and technological change with only twenty-seven constitutional
amendments? The answer is that we
have granted broad interpretive latitude to the Supreme Court.
Narrow construction would necessitate more frequent resort to formal constitutional
amendments. Broad construction eliminates the need. Thus, the Court has determined that
eighteenth century restrictions on searches of our "papers and effects" apply to our twentieth
century telephone calls, and that the command of equal protection forbids racially segregated
schools even though such segregation was known to the Fourteenth Amendment's framers.
Neither of these decisions - Katz v. United States and Brown v. Board of Education - required a constitutional
amendment.∂ Nor did the Court's "switch in time that saved nine" during the New Deal. In the early twentieth century, the
Court struck down much federal economic legislation as exceeding Congress's power and invading the province of the states. Under
President Roosevelt's threat to expand and pack the Court, the Court desisted, and started to defer to all legislation bearing some
plausible relationship to interstate commerce. Some scholars have called the Court's decision to defer to
national economic legislation revolutionary enough to count as an informal constitutional
amendment, but most view it as within the broad contours of reasonable interpretive practice.∂
Increasing the frequency of constitutional amendment would undermine the respect and
legitimacy the Court now enjoys in this interpretive role. This danger is especially acute in the
case of proposed constitutional amendments that would literally overturn Supreme Court
decisions, such as amendments that would declare a fetus a person with a right to life, permit punishment of flag-burning, or
authorize school prayer. Such amendments suggest that if you don't like a Court decision, you mobilize
to overturn it.∂ Justice Jackson once quipped that the Court's word is not final because it is infallible, but is
infallible because it is final. That finality, though, has many salutary social benefits. For example, it allows us to
treat abortion clinic bombers as terrorists rather than protesters. If every controversial
Supreme Court decision resulted in plebiscitary overruling in the form of a constitutional
amend- [*703] ment, surely the finality of its word would be undermined, and with it the social
benefits of peaceful conflict resolution. The fact that we have amended the Constitution only
four times in order to overrule the Supreme Court is worth remembering.

Amendment enforcement fails for undocumented immigrants – requires too

many resources.
Benson 97 (Lenni B., "SYMPOSIUM: Back to the Future: Congress Attacks the Right to Judicial Review of Immigration
Proceedings," Connecticut Law Review, https://litigation-
essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&srctype=smi&srcid=3B15&doctype=
cite&docid=29+Conn.+L.+Rev.+1411&key=341e2487ac063c2ba866dee9a7251517) KEN

Constitutionalization of immigration litigation also raises troubling problems for noncitizens.

Establishing a substantive constitutional claim or a procedural due process claim often requires that the
noncitizen develop a factual record in a district court.343 It can be difficult, even impossible, to
develop a sufficient record to assert either a substantive or a procedural due process claim in the
administrative proceeding. As noted previously, neither the Immigration Judge nor the BIA has the authority to hear or
decide many forms of constitutional questions.344 In these administrative proceedings or in appellate review specifically limited to
the administrative record, the
noncitizen will not have had an opportunity to develop the factual
predicates necessary to the finding that some constitutional right has been harmed. Many of the
recent constitutional challenges have been brought in class action suits in district court where advocates have directly challenged
the agency's implementation of the law or the lack of procedural protections in the statutes.345 To
present these types of
claims, teams of lawyers have had to conduct factual investigations, formal discovery, and
survive rounds of procedural motions. Similarly, where attorneys wanted to protect substantive
rights, they have frequently used an offensive strategy by filing actions to enjoin the INS from
initiating or continuing removal actions. 346 These strategies also require sophisticated counsel.
Pro se petitioners are unlikely to adequately assert "selective prosecution," First Amendment protections, lack of substantive or
procedural due process or arguments based on principles of equitable estoppel. 34 Finally, exclusive constitutional
decisionmaking may lead to a form of balkanization where parties assert competing views of the
constitutional rights of noncitizens."' Constitutionalization does not allow for the same variety of
nuanced analysis or the careful development of rights and interests that a traditional judicial
process includes." 9 Constitutional adjudication can be a blunt instrument which creates both
constitutional winners and losers and then enshrines the victory in stare decisis.