The following case is the 2010 Ethos 1AC Contest winner, written by Jonathan Edelblut. You should discuss this case in the comments area, as the author would like your feedback.

The Dire Doctrine: Non-Delegation and New START

John A. Eldsmoe, J.D. and Professor of Law, explained the upmost importance of the preservation of our constitutional system when he stated in 1992 article published in the United States Air Force Academy Journal of Legal Studies[i] that:

“Other misfortunes may be borne, or their effects overcome. If disastrous war should sweep our commerce from the ocean, another generation may renew it; if it exhaust our treasury, future industry may replenish it; if it desolate and lay waste our fields, still under a new cultivation, they will grow green again, and ripen to future harvests. It were but a trifle even if the walls of yonder Capitol were to crumble, if its lofty pillars should fall, and its gorgeous decorations be all covered by the dust of the valley. All these might be rebuilt. But who shall reconstruct the fabric of demolished government? Who shall rear again the well-proportioned columns of constitutional liberty? Who shall frame together the skilful architecture which united national sovereignty with State rights, individual security, and public prosperity? No, if these columns fall, they will not be raised again. Like the Coliseum and the Parthenon, they will be destined to a mournful, a melancholy immortality. Bitterer tears, however, will flow over them, than were ever shed over the remnants of a more glorious edifice than Greece or Rome ever saw, the edifice of Constitutional American liberty. It is possible that a Constitutional convention could take place and none of these drastic consequences would come to pass. It is possible to play Russian roulette and emerge without a scratch; in fact, with only one bullet in the chamber, the odds of being shot are only one in six. But when the stakes are as high as one’s life, or the constitutional system that has shaped this nation into what it is today, these odds are too great to take the risk.”

Because the preservation of the Constitution and the structure of the authority it delegates is of such critical importance, my partner and are Resolved:  that the United States Federal Government should significantly reform its policy toward Russia.

In order to provide clarity to this debate round, we’ll provide some Definitions

Significantly is defined as “extensive or important enough to merit attention”[ii]

Policy can be defined as “Decisions on the general way of doing something”[iii]

Before we can even identify a problem in the current system, we need to establish what is most important in this round, or the Goal all the arguments should be viewed in respect to. We as the Affirmative would like to present the goal of preserving liberty as the most important issue in this debate round. We will uphold this goal through two means: Prevention and precedent. We can protect individual liberty through blocking infringements from occurring in the first place, and we can provide a marker for future reference about the proper place of government.

However, before we identify the need for policy change, we first have to examine the current state of affairs in our First section: Background

On April 8^th, 2010, President Obama and Russian President Medvedev jointly signed the New Strategic Arms Reduction Treaty, or New START for short. The treaty, which will bilaterally reduce the number of nuclear weapons in the Russian and American arsenal, has passed the committee stage and is now pending ratification in the U.S. Senate, the prospects of which are quite optimistic. That’s our A point: New start Ratification Imminent

Tom Z. Collina, Former Executive Director of the Institute for science and international security, said in October 2010 that:[iv]

“Immediately after the committee vote, Kerry told reporters, “I personally believe we will have the votes to ratify this” on the Senate floor. Senate Democratic leaders have said that New START is one of three top priorities for votes in the postelection session. The chance for a vote may depend on Senate Minority Whip Jon Kyl (R-Ariz.) “because if he’s comfortable then this can pass with more than enough votes,” Lieberman told CQ Sept. 30. “If he’s not, my guess is it doesn’t come up.””

At first glance, this treaty seems like a regular, ordinary, helpful agreement. However, the problem lies within the details. The New start Treaty creates a Bilateral Consultative Commission with power to alter treaty obligations without senatorial consent. That’s our B point: BCC Independent Adjustments

Jack Goldsmith, J.D. and Professor of law at Harvard Law school, and Jeremy Rabkin, Ph.D. and Professor of law at George Mason University, said writing for The Washington Post in August 2010 that:[v]

“Critics of the new Strategic Arms Reduction Treaty (START) warn that it may endanger the United States’ capacity to go forward with missile defense. But the treaty, Senate consideration of which has been pushed back to the fall, raises another concern. Consent to it as it stands will further erode the Senate’s constitutional role in American foreign policy. This [the New START] treaty does not constrain future development of missile defense (except in a few limited ways). It does, however, create[s] a Bilateral Consultative Commission with power to approve “additional measures as may be necessary to improve the viability and effectiveness of the treaty.” The U.S. and Russian executive branches can implement these measures and thus amend U.S. treaty obligations — without returning to the U.S. Senate or the Russian Duma.”

Fortunately there is a simple and effective means of dealing with this situation in a way that does not stop the New start treaty from performing it’s role. We can see this in section two: the Plan – Condition Consent

Mandate – The US Senate will ratify the NEW START treaty with the following conditions attached…

a. Technical Matters: There must be an interpretive understanding that the Bilateral Consultative Commission’s amendment power will extend only to technical treaty matters and not to limitations on missile defense

b. Deliberations: The senate will be notified about the Commissions deliberations

With a policy action identified, what is the reason this plan is necessary? We will see that in our Third section, The Justification: Liberty Preserved

We can see this in several sub points:

The ‘A’ point is Inherency: Courts will Not Protect the senate

In many instances when constitutional questions are brought into light, the supreme court and lower courts can address the issue easily address the concern. However, in this instance, the courts will not be the guardians of liberty. Professor’s Goldsmith and Rabkin confirmed this in August 2010,[vi]

“Another reason is that courts often look to the practice between the branches of government in determining constitutional limits. If the Senate continually acquiesces in delegating international lawmaking to the president and international organizations, courts are unlikely to protect senatorial power in the end. Moreover, arms control treaties such as New START rarely come before courts.”

The ‘B’ point is the Harm: Non-delegation Doctrine Violated

Dr. Christopher A. Ford, Ph.D., J.D., and senior Fellow and Director at the Center for Technology and Global security at the Hudson Institute, said in the article, “Crying Fowl? Nondelegation and “New start”” on August 5^th, 2010 that:[vii]

“Warming to this subject, one of my colleagues averred that one of the reasons we’re in this fix is because – as held in the famous Schechter Poultry case that I recall reading in law school – it is actually unconstitutional for the legislature to delegate raw legislative power to the Executive Branch. One of the consequences of this nondelegation rule, he felt, was to encourage Congress’ worst instincts with regard to jamming endless levels of detailed regulation into statutory form.  In conjunction with Members’ affinity for burying in the deep labyrinths of legislative text their special deals with favored constituencies, this dynamic may have helped lead to the mammoth pieces of both unreadable and largely unread legislation that are so characteristic of modern American lawmaking. ”

Dr. Ford explained what this meant for New start and the BCC later in the same context. He said

“The “New START” agreement and its Protocol have quite properly been submitted to the Senate for that body’s advice and consent pursuant to Article II, Section 2 of the Constitution.  With Senate approval, the Treaty and Protocol would indeed become part of the “supreme Law of the Land” under Article VI.  The BCC, however, is expressly to be given the power to rewrite the Protocol on its own, with any such changes presumably having no less legal force than the original Senate-approved text of the Protocol. This necessarily means that the president, acting through his BCC representatives, would be engaged in lawmaking – with U.S. diplomats at the BCC sharing the legislative power of treaty-making under the U.S. Constitution not with the Senate but in fact with Russian diplomats, of all people. Does this raise nondelegation problems under the Supreme Court’s Schechter case and its judicial progeny? I’d be the first to admit that my nondelegation legal scholarship is a bit rusty, but I cannot think of any grounds for exempting the treaty power from nondelegation rules. Perhaps there is indeed some reason why treaty-making, as an entire type of lawmaking authority, falls outside the Schechter principle that Congress may not transfer its essential legislative powers to others.  Unless such an exemption can be identified, however, the Obama Administration may have to defend its new arms agreement against nondelegation challenge.  If it cannot do so, serious constitutional questions might arise about the Senate’s ratification of the new Treaty and its Protocol.”

The ‘C’ point is the Impact: Liberty Threatened

It is when we ignore the separation of power between branches of government that one of our unalienable rights, liberty, is threatened. This is affirmed by Dr. William H. Mellor, J.D., Dr. Clint Bolick, J.D., Dr. Deborah Simpson, J.D., Dr. Matthew Berry, J.D., Dr. Tim Lynch J.D., Prof. Ronald Rotunda, J.D., Prof. Roger Pilon, J.D. and Ph.D, And Prof. Robert A. Levy, J.D. and Ph.D, when they said in a brief Amici Curiae of the Institute for Justice and the CATO Institute In support of the respondents, the American Trucking Association, for the supreme court no earlier than 1999 that[viii]

“It has long been established, therefore, that Congress may not freely delegate its legislative powers. This principle, commonly referred to as the nondelegation doctrine, traces its roots back to two of Europe’s most distinguished and influential political philosophers. John Locke, writing in 1690, stated that “[tlhe legislative cannot transfer the power of making laws to any other hands; for it being but a delegated power from the people, they who have it cannot pass it over to others.“6 Locke pointed out that the power vested by the people in the legislature was “only to make laws, and not to make legislators.“7 Montesquieu, furthermore, warned of the dangers that would result from allowing legislative and executive powers to be joined together: “When the legislative and executive powers are united in the same person or body, there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.“s”

The article went further to say that:

“In Industrial Union Dep’t, for example, Chief Justice Rehnquist argued in a concurring opinion that a provision of the Occupational Safety and Health Act of 1970 ran afoul of the nondelegation doctrine. In doing so, he identified the important functions served by the doctrine: (1) “ensur[ing] to the extent consistent with orderly governmental administration that important choices of social policy are made by Congress, the branch of our Government most responsive to the popular will”; (2) guaranteeing that the recipients of delegated authority are provided with “an ‘intelligible principle’ to guide the exercise of the delegated discretion”; and (3) facilitating judicial review of “the exercise of delegated legislative discretion.” 448 U.S. at 685-86. See also Arizona v. California, 373 U.S. 546, 626 (1963) (Harlan, J., dissenting in part). While each of these functions may appear unrelated to the others, they are not, for each, in its own way, is a manner in which the nondelegation doctrine helps to secure the liberty of the American people. For this reason, liberty is threatened when the nondelegation doctrine, an important component of’ the separation of powers, is ignored. And it is for this reason that this Court should revitalize the nondelegation doctrine.”

The ‘D’ point is Solvency: Prevention and Precedent

We can prevent the threat to liberty from occurring by removing the potential for constitutional violation, and we can save future harm from being done by providing a precedent for further treaty making processes. Doctor’s Goldsmith and Rabkin said in 2010 that:[ix]

“In short, only the Senate can protect its constitutional prerogatives. One way for the Senate to do this would be to condition its consent to the treaty on an interpretive “understanding” that the commission’s amendment power extend only to technical treaty matters and not to limitations on missile defense. Understandings of this sort are common in U.S. treaties. The Senate could also condition consent to the treaty on a requirement that it be notified about deliberations of this commission. Such provisions would preserve the commission’s core authority while constraining it in ways that eliminate the most serious constitutional objections. They would [and] also lay down a marker about the Senate’s role in this context.”

By adopting our plan we can effectively protect the senate’s Constitutional role in the treaty making process

Thank you. I’m now open for questions.

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[i] John A. Eldsmoe [Lieutenant Colonel, United States Air Force Reserve, Constitutional Attorney. Professor of Law, Thomas Goode Jones School of Law, Faulkner University, Montgomery, Alabama. BA, St. Olaf College; JD, U of Iowa College of Law; Master of Divinity, Lutheran Bretheren Seminary; Master of Arts in Biblical Studies, Dallas Theological Seminary; Doctor of Ministries, Oral Roberts University. Graduate Air Command and Staff College], Published in the United States Air Force Academy Journal of Legal Studies [3 USAFA J. Leg. Stud. 35], 1992, “Article: A New Constitutional Convention? Critical Look at Questions Answered, and Not Answered, by Article Five of the United States Constitution” [Accessed via Lexis-Nexis] [JS]

[ii] (2008) Compact Oxford English Dictionary

[iii] (2000). In Dictionary of Law, Peter Collin Publishing

[iv] Tom Z. Collina [Former Executive Director of the Institute for Science and International Security, Director of Global Security at the Union of Concerned Scientists, and Senior Research Analyst at the Federation of American Scientists. 20 years of Washington DC experience in arms control and global security issues. degree in International Relations from Cornell University and serves on the Boards of Directors of the Scoville Peace Fellowship and the Janelia Foundation.]: “Senate Committee Approves New START” Published by the Arms Control Association in October 2010: http://www.armscontrol.org/act/2010_10/SenateNewSTART (JE)

[v] Jack Goldsmith [J.D. from Yale Law School; Professor at Harvard Law School; M.A. from Oxford; Former professor at the University of Chicago Law School and the University of Virginia Law School; he has written a number of texts regarding international law, cyber law, and national security law], and Jeremy Rabkin [Ph.D. in government from Harvard University; Professor of law at George Mason University School of Law, where he teaches constitutional law and international law; board member of the United States Institute of Peace and a member of the Council of Academic Advisers at the American Enterprise Institute]: “New START Treaty could erode Senate’s foreign policy role” Published by The Washington Post August 4, 2010: [brackets added] http://www.washingtonpost.com/wp-dyn/content/article/2010/08/03/AR2010080304663.html?hpid=opinionsbox1 (JE)

[vi] Jack Goldsmith [J.D. from Yale Law School; Professor at Harvard Law School; M.A. from Oxford; Former professor at the University of Chicago Law School and the University of Virginia Law School; he has written a number of texts regarding international law, cyber law, and national security law], and Jeremy Rabkin [Ph.D. in government from Harvard University; Professor of law at George Mason University School of Law, where he teaches constitutional law and international law; board member of the United States Institute of Peace and a member of the Council of Academic Advisers at the American Enterprise Institute]: “New START Treaty could erode Senate’s foreign policy role” Published by The Washington Post August 4, 2010: (JE) http://www.washingtonpost.com/wp-dyn/content/article/2010/08/03/AR2010080304663.html?hpid=opinionsbox1

[vii] Dr. Christopher A. Ford [Senior Fellow and Director at the Center for Technology and Global Security at the Hudson Institute; J.D. Yale Law School; Ph.D. Oxford University; former U.S. diplomat, policymaker, and Congressional staffer; B.A. Government/International Relations Harvard University; Former United States Special Representative for Nuclear Nonproliferation; intelligence officer in the U.S. Navy Reserve, holding the rank of Lieutenant Commander; the author of numerous articles on topics ranging from nonproliferation and disarmament to comparative law, from Chinese strategic culture to intelligence oversight, and from Islamic international law to international legal history]: “Crying Fowl? Nondelegation and “New START”” Published by New Paradigms Forum [project of the Center for Technology and Global Security (CTGS) at the Hudson Institute] August 5, 2010: http://www.hudson.org/index.cfm?fuseaction=publication_details&id=7233 (JE)

[viii] [Dr. William H. Mellor, J.D.] [Dr. Clint Bolick, J.D.] [Dr. Deborah Simpson, J.D.] [Dr. Matthew Berry, J.D.] [Dr. Tim Lynch J.D.] [Prof. Ronald Rotunda, J.D.] [Prof. Roger Pilon, J.D. and Ph.D] [And Prof. Robert A. Levy, J.D. and Ph.D]: Said in a brief Amici Curiae of the Institute for Justice and the CATO Institute In support of the respondents, the American Trucking Association, no earlier than 1999: (JE)

[ix] Jack Goldsmith [J.D. from Yale Law School; Professor at Harvard Law School; M.A. from Oxford; Former professor at the University of Chicago Law School and the University of Virginia Law School; he has written a number of texts regarding international law, cyber law, and national security law], and Jeremy Rabkin [Ph.D. in government from Harvard University; Professor of law at George Mason University School of Law, where he teaches constitutional law and international law; board member of the United States Institute of Peace and a member of the Council of Academic Advisers at the American Enterprise Institute]: “New START Treaty could erode Senate’s foreign policy role” Published by The Washington Post August 4, 2010: http://www.washingtonpost.com/wp-dyn/content/article/2010/08/03/AR2010080304663.html?hpid=opinionsbox1