As any TPer knows, one of the most satisfying parts of the preparation process is when one stumbles across a golden piece of evidence, thinks of a killshot argument, or anything similarly incredible that looks like it all but guarantees a win against a given case. When I was a sophomore in high school, I watched a TP round online, and one debater read such a card – but not only was it a card such that neg was guaranteed a free win against aff’s case, neg was guaranteed a free win against virtually any aff case that used the US Congress as an actor. However, I have since realized that this argument isn’t unbeatable – but at the very least, it’s the trickiest argument I ever encountered doing TP. In this article, I’d like to walk you through this argument, the response to it, and, in the process, discuss the popular view of fiat in the debate community.
Neg starts with a setup question in cross examination: “Is Congress allowed to just reverse the aff plan once it’s passed?” (or some similarly-worded question). If an aff were to answer “yes,” then you have a relatively easy win on good old-fashioned solvency. Under burdens theory (which most judges in NCFCA/Stoa endorse in some way), aff has no way to guarantee that their plan will even stick. If anything, the fact that Congress hasn’t passed the aff plan yet shows that they don’t support it, indicating that they’d quite likely repeal it once it’s passed. Most affs realize this and answer “no.”
Neg will then, in one of their constructives, read the following card:
From the 2003 Supreme Court case, Ohio Life Insurance & Trust Company v. Debolt
57 U.S. 16 How. 416 416 (1853), Retrieved November 10th 2022
“The powers of sovereignty confided to the legislative body of a state are undoubtedly a trust committed to them, to be executed to the best of their judgment for the public good, and no one legislature can, by its own act, disarm their successors of any of the powers or rights of sovereignty confided by the people to the legislative body, unless they are authorized to do so by the Constitution under which they are elected.”
In other words, it’s unconstitutional for a legislative body (that is, Congress) to permanently block Congress from doing something in the future that it otherwise would have the power to do. Put differently, Congress can’t legally pass a law that includes a clause to the effect of “nobody is allowed to repeal this law.” This idea is called legislative entrenchment.
At this point neg has all but won the round – aff explicitly said in cross examination that Congress isn’t allowed to repeal their plan. Hence, the plan is illegal, giving neg a solvency takeout and, if they’re feeling particularly rosy, access to unconstitutionality as a DA.
Let me reiterate: if aff fiats Congress (which is true for virtually every case in most resolutions), the only thing that has to happen for neg to win the round is aff answering “no” to one CX question – a question to which every bone in one’s body instinctually wants to answer no. That’s incredibly powerful.
The reason this argument works is because it exploits a flaw in the typical understanding of fiat. At a purely technical level, fiat describes the idea derived from the word “should” in the resolution that aff need not prove that the actor endorses the plan, but rather, that the actor passing the plan would be net beneficial. Many people simplify this view by using the “hypothetical fiat world” model; that is, for the sake of debate, we imagine a world in which aff can make the actor pass their plan. Oftentimes the use of this view evinces itself in debaters’ language; one “fiats the mandates,” or they “fiat Congress,” and so on. Most people operate on the hypothetical fiat world model because, in general, it’s a way more understandable way of getting to the same idea.
However, there is a slight distinction between the technical model and the simplified model. The former makes aff defend their policy as a good idea, whereas the latter makes aff defend the world in which their plan is passed. That distinction probably sounds meaningless. And in most cases, it is. But it becomes infinitely clear in the case of the argument we’re discussing today. As seen earlier, when we use the idea of aff “making” Congress pass their plan, legislative entrenchment works as a solvency takeout. Using the technical model, however, aff might answer the setup question in CX as follows: “the resolution asks us to debate what the US should or should not do; we as the affirmative believe that the US should pass our plan and not reverse it.”
I leave you with two action items. First, I’d recommend experimenting with legislative entrenchment as a strategy on negative given how easily it can win you rounds. But second, in order to avoid falling for this and similar strategies, I’d encourage you to rethink your view of fiat. I can think of two options you have. One, you can abandon the hypothetical fiat world model and spend time internalizing the technical view. Two, if you prefer operating on the simplified model (and that may be advisable for the sake of both clarity and staying on the same page as your judges), modify your view in order to think of fiat as a hyper-legal and enduring force. That is, most people think the following about fiat:
- Fiat functions as a legal authority (it grants aff the legal powers necessary to ensure passage of the plan), and
- Fiat is a “one-and-done” phenomenon (aff can use it to pass and implement their plan, but beyond that, the efficacy of their mandates depends on people following the law they put into place).
When I say to think of fiat as hyper-legal, I mean that you should change your view from “aff is guaranteed 51 votes in the Senate and 218 votes in the House” to “aff can guarantee that Congresspeople will choose to support the plan.” When I say to think of fiat as enduring, I mean that you should think of aff as being able to continually fiat the actor rather than only fiating it once (insofar as the action(s) aff fiats are specific in nature). With these modifications, the hypothetical fiat world model can better approximate the true nature of fiat because it moves the debate closer to “should.” It moves the aff from arguing “the US will pass a law that cannot be overturned in the future” to arguing “the US should pass a law, and it should voluntarily abstain from overturning it.”
If you have any questions or concerns, let me know in the comments, and I’d be more than happy to talk.
Hope y’all found this helpful!
Ben Brown is the blog manager for Ethos Debate LLC. He competed in Team Policy debate throughout high school, winning 1st place at the 2022 NCFCA national championship. When not debating, Ben can be found wishing he was debating, playing board games, or hanging out with friends and family.
There was a pretty robust debate between Eric Posner (he thought entrenchment was constitutional) and John Roberts and Erwin Chemerinsky (they thought it wasn’t) in the legal literature about twenty years ago. I’ll post the link to the Roberts and Chemerinsky piece here because it tracks back to Posner and Vermuele, and this will allow everyone to see how this debate works out in the “real world” of legal scholarship: https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1587&context=faculty_scholarship
Of course a constitutional “Congress shall make no law…” clause does operate to prohibit certain legislation from being enacted or altered…laws entrenched by the Constitution.
And the clause prohibiting the removal of a states’ equal representation in the Senate without its consent limits what changes to the Constitution are allowed….an entrenched constitutional clause.And I imagine there could be an amendment that prohibited any amendment that would the effect of allowing changes in entrenched clauses.
So there are indeed layers of entrenchment/fiat.