The States and Lopez Counterplans (Basic Introduction)

Related: States Counterplan File, Counterplans Essay, Federalism essay.

The States Counterplan


As a substantial amount of evidence indicates, the states are capable of implementing  water protection State action is net beneficial because it will not trigger the Politics Disadvantage, the Federalism Disadvantage, or any other disadvantage that can be uniquely linked to federal action. Poorly worded “do both” permutations are unlikely to work because the permutation still requires federal government action, which is what the disadvantages are linked to in the first place. The affirmative will at least try to claim that the permutation gets them out of the federalism net benefit because now the federal government will be “cooperating” with the states. To beat that argument the negative will have to read some evidence that explains why cooperation really isn’t the way to promote federalism.

Since the states have a lot of authority and capability to act in the area of environmental protection, this will be a popular counterplan on this topic.

Wording the Counterplan

It is usually best to have the fifty states implement the mandates of the affirmative plan (without the federal action part). Having the states simply adopt the mandates of the plan guarantees that the counterplan captures  all  of the affirmative solvency, whatever it is. Most of the affirmative evidence which claims that “federal action is necessary” will not assume that the states take action, that they all take the action act once, and the evidence usually provides few warrants as to why federal government action is needed. Most warrants can be solved for by having all the states act at once through an interstate compact or a governors’ convention. There is no reason to think that the states aren’t capable of cooperating on their own. Often, the affirmative will try to claim that the negative doesn’t have any specific evidence that says that the states could do the plan or do it well, but the affirmative often doesn’t have any evidence that speaks to the unique importance of federal action.

Beating the Affirmative Answers

Traditionally, affirmatives have taken a number of tactics to try to defeat the states counterplan, none of which have been particularly effective. First, affirmatives will try to find something in the plan that the counterplan can’t solve for. They may claim that federal action is needed for “x,” even though their plan has x, y, and z mandates. If you suspect that the affirmative will do this, you should do one of two things. One, you should argue “x” is not a critical component of the plan. You should argue that if the states did all the rest of the components of the plan, and at least tried to do the component the affirmative is winning, then the counterplan would solve enough of the case harms (especially if your case arguments are making inroads into the case harm) to make the counterplan still desirable on the whole in light of the disadvantages. The second way of dealing with this is to simply counterplan to have the federal government act to solve the part of the harm that you anticipate the affirmative will argue requires federal action. If you do this, however, you have to be to make sure your disadvantages only link to the parts of the plan that the states are carrying out, not the part you also carry out in your counterplan with the federal government.

Another affirmative strategy is to argue that the states don’t have “jurisdiction” to implement the plan and only the federal government has jurisdiction, say over Commerce. If you need to defeat these cases with the states counterplan, the best approach is to have the federal government give jurisdiction over areas related to the plan mandates to the states. (See the Lopez counterplan below), and have the states then implement the affirmative plan. This not only helps your counterplan solvency, but it also bolsters your link to your federalism disadvantage because you can now argue the counterplan has the federal government send a strong signal in support of state power. If you have a modeling impact to your federalism disadvantage, you can tell a persuasive story that this counterplan action will send a strong signal in support of federalism worldwide.

Strategically, you have to be careful if you are making this modeling/signaling argument. If you want to run the devolution counterplan and claim to send a signal, you should not read uniqueness evidence to your disadvantage that claims that federalism is strong now. If you do that, you will not have an advantage to your counterplan because the status quo already supports devolution according to you. Instead, present the disadvantage in a non unique form – there is too much federal power now. Then, claim that the counterplan restores the appropriate balance of power.

Yet another affirmative approach is to argue “fiat abuse” against the counterplan. The affirmative may argue it is illegitimate to allow the negative to fiat all fifty individual states. While an in depth discussion of this theoretical issue is not appropriate here, I will point out that as a negative you should argue that given the thousands of different proposals, particularly proposals that are made for relatively minor changes in our water protection policies that the affirmative could advocate on this year’s topic, the negative’s only hope is to be able to run a states counterplan against these affirmatives and focus the bulk of their case specific research against cases that cannot be counterplanned by the states.

Of course, the affirmative could always argue the states are bad at policy making, that they lack infrastructure, experience, funds, and suffer from corruption. Harrigan (1997) argues that while these concerns were true in the 1960s, they are no longer true today. He argues that states have professionalized their policy implementation apparatuses and have reduced corruption. They have also got their fiscal houses in order.

The affirmative could also run a state spending disadvantage against the counterplan. Having a disadvantages/offense against a counterplan is always a good idea. Traditionally, the best impact to state spending has been education as states are the biggest education spenders. One strategic problem with presenting this disadvantage is the disadvantage is usually easy to defeat if the negative also runs a Federal Spending Disadvantage in the 1NC against the plan. Usually, the affirmative will make link answers about how the plan doesn’t cost money, that it saves money, etc. Well, if these arguments are true then they will also take out the state spending disadvantage.    Second, it is difficult to convince anyone that the impacts to a state spending disadvantage will outweigh a federal spending disadvantage. Third, the negative can always “spike” the state spending disadvantage by placing a mandate in the counterplan text that has the states raise taxes, cut some other program, or even amend their constitutions to allow deficit spending.


The states counterplan is very difficult to beat and has been a mainstay of negative strategy since the 1970s. The reason it is so difficult to defeat is that while affirmative teams can often win that federal action solves for the advantages a bit better, negative teams are usually able to win that the disadvantages to federal action (federalism, politics, federal spending) outweigh any solvency deficit.

The Lopez Counterplan


The Lopez counterplan is a very popular counterplan. I predict that over the last 25 years it has won well over one ten thousand debates. But, despite its competitive success, it is an argument that I despise.

The counterplan is quite simple.  All the counterplan does is have the Supreme Court “extend the Lopez decision” (see the “Federalism Disadvantage” essay for a discussion of the Lopez decision, and rule that the counterplan is unconstitutional because it is inconsistent with the Lopez precedent that supposedly opposes federal action. The counterplan then has the states implement the mandates of the plan.  Teams running the counterplan will argue that the counterplan is mutually exclusive with the plan because the counterplan bans the plan and this banning is net beneficial because it sends a strong pro federalism signal.

Answering the Counterplan

You should not lose to this counterplan. It is terrible.  In fact, I might go so far as to say it is one of the worst arguments in modern debate.  There are a few basic reasons.

First, this counterplan is simply not competitive. All your plan will says is that Congress should do X.  You don’t say that Congress should do X  forever and you do not fiat the positive response of another branch, let alone the Supreme Court, to do your plan.  You can simply permute to do both   have the Congress pass your plan, have the Court strike down the plan, and have the states implement it.  The negative will try to argue that this is a severance permutation, but you do not sever out of anything that is in your plan.   Furthermore, you should point out that the Court can’t even strike the plan down until it is passed!!!!!!!!

Second, the net benefit makes almost no sense.  Federalism is a balance of power between the states and the federal government.  The counterplan disrupts this balance by striking down a plan that in all likelihood does not rely on interstate commerce to justify its implementation, making an extension of the Lopez decision (for a greater discussion of the Lopez decision see the Federalism Disadvantage essay) totally ridiculous. In fact, it is so ridiculous that this would generate massive confusion regarding what the Supreme Court’s interpretation of the Commerce Clause even was, and whether or not the Court is even competent.

Third, there are a number of disadvantages you can run against the counterplan.  You can run the Activism Disadvantage, the Separation of Powers Disadvantage, and the Court Legitimacy Disadvantage (forthcoming)

Fourth, you can attack the counterplan on the grounds that it uses multi actor fiat.  The counterplan has the Court strike down the plan and the states implement it. Multi actor fiat is very problematic because in the real world no actor can assume that other actors will act when making decisions and it allows the negative to fiat out of solvency deficits produced when particular actors fail to act.


Despite my distaste for this counterplan, it wins a lot of debates.