On Mon, 31 Aug 2015, David Post wrote:

> At 10:46 AM 8/31/2015, Mueller, Milton L wrote:
>> 
>> From: David Post [mailto:[log in to unmask]]
>> DP:  I agree with much, and maybe all, that you say.  But I am curious as 
>> to why you're as concerned as you are about the GACs's 'advisory power' 
>> when the Bylaws now state (a) that the Board's powers are limited to 
>> implementing consensus policies, and (b) that the Board has no power to act 
>> outside of that limitation,
>> 
>> MM: OMG David, those supposed limitations (consensus policies) have been in 
>> place since 1998, they mean absolutely nothing. ICANN board just passes 
>> whatever policies they want, based on whatever constellation of political 
>> pressures they are feeling at the moment (often via GAC), and call it 
>> "consensus." Do you think there was consensus on the new RAA, or do you 
>> think USG and law enforcement, via GAC, pressured ICANN staff/board to make 
>> those changes and they were then imposed on businesses desperate to start 
>> implementing the new TLDs?
>
> DP:  Of course I completely agree:  the limitation regarding consensus 
> policies has done absolutely nothing to curb Board power.  But that's not 
> because it "means absolutely nothing" - I have a pretty good idea what it 
> means, I think you have a pretty good idea what it means, and I think most 
> people in the community have a pretty good idea what it means.   The 
> consensus limitation has done nothing, not because it doesn't mean anything, 
> but because it was completely unenforceable by anyone other than the Board 
> itself. I THOUGHT THE POINT OF THE RECONSTITUTED IRP WAS TO CURE THIS 
> PROBLEM.  AM I WRONG?
>
> that's why I had part c in what I initially wrote:  My understanding is that 
> the CCWG proposal calls for the Bylaws to be modified to make it clear that:
>
> (a) the Board's powers are limited to implementing consensus policies,
> (b) the Board has no power to act outside of that limitation,  AND
> (c) the IRP is empowered to declare Board actions outside of these limits 
> invalid

This thread has been very well argued and informative on a complicated
area that will have great and long lasting consequences.

Do I have it correct that the IRP is ICANN's Independent Judiciary with the
authority to determine if/when the Board has acted outside the power and
reverse (at presumeably any unlimited future time) the action...thus
the IRP is the concensus stakeholders'  mechanism to appeal to a 
"Supreme Court"?

Is it correct to state that up till now the Boards actions have been final/
without appeal due to respect for this ultimae power of the Board?

If the IRP declares a Board action invalid, ICANN still remains a corporation
so can the Board declare an emergency and take "marshall law" power on the
basis that ivalidating a critical (in the Board's eyes) operational directive
would cause irreprable harm/damage to the Internet?

So how does the IRP enforce it's finding, and does the IRP have the ultimate
power to impose a (possibly temporary) dictate to ameliorate an emergency?

-ron