ACTA Raising Serious Constitutional Questions

Politics

from the executive-agreements? dept

One of the talking points from ACTA supporters was always that it wasn’t a “treaty” but an “executive agreement,” claiming that this meant something different. However, as we discussed back in February, this is misleading. Executive agreements are generally a way to sneak treaties through without Congressional approval. That post linked to a great legal analysis by Andrew Moshirnia for the Citizen Media Law Project — but some ACTA supporters in our comments claimed that since Moshirnia was “just a second year law student,” his arguments were meaningless (of course, this commenter also ignored all of the legal citations Moshirnia raised (funny, that…)).

But it appears that some law professors are also pretty concerned about trying to sneak ACTA through by calling it an executive agreement. Harvard law professors Jack Goldsmith and Larry Lessig have penned an opinion piece for the Washington Post where they lay out an explanation for why calling ACTA an executive agreement may not be Constitutional:

The administration has suggested that a sole executive agreement in this instance would not trample Congress’s prerogatives because the pact would not affect U.S. domestic law. Binding the United States to international obligations of this sort without congressional approval would raise serious constitutional questions even if domestic law were not affected. In any event, an anti-counterfeiting agreement made on the president’s own authority could affect domestic law in at least three ways:

First, the noncriminal portions of this agreement that contemplate judicial enforcement can override inconsistent state law and possibly federal law. Second, the agreement could invalidate state law that conflicts with its general policies under a doctrine known as obstacle preemption, even if the terms are not otherwise judicially enforceable. Third, a judicial canon requires courts to interpret ambiguous federal laws to avoid violations of international obligations. This means courts will construe the many ambiguities in federal laws on intellectual property, telecom policy and related areas to conform to the agreement.

If the president proceeds unilaterally here, ACTA will be challenged in court. But the best route to constitutional fidelity is for Congress or the Senate to protect its constitutional prerogatives. When the George W. Bush administration suggested it might reach a deal with Russia on nuclear arms reduction by sole executive agreement, then-Sen. Joe Biden wrote to Secretary of State Colin Powell insisting that the Constitution required Senate consent and implicitly threatening inter-branch retaliation if it was not given. The Bush administration complied.

Congress should follow Biden’s lead. If the president succeeds in expanding his power of sole executive agreement here, he will have established a precedent to bypass Congress on other international matters related to trade, intellectual property and communications policy.

At what point does President Obama begin to regret his blind support of ACTA?

Filed Under: acta, constitution, executive agreement, jack goldsmith, larry lessig