As we noted in our post about people just discovering
ACTA this week, some had put together an odd White House petition
, asking the White House to "end ACTA." The oddity was over the fact that the President just signed ACTA
a few months ago. What struck us as a more interesting question was the serious constitutional questions of whether or not Obama is even allowed
to sign ACTA.
In case you haven't been following this or don't spend your life dealing in Constitutional minutiae, the debate is over the nature of the agreement. A treaty
between the US and other nations requires Senate approval. However, there's a "simpler" form of an international agreement, known as an "executive agreement," which allows the President to sign the agreement without getting approval. In theory, this also limits the ability of the agreement to bind Congress. In practice... however, international agreements are international agreements. Some legal scholars have suggested that the only real difference
between a treaty and an executive agreement is the fact that... the president calls any treaty an "executive agreement" if he's unsure if the Senate would approve it. In other words, the difference is basically in how the President presents it.
That said, even if Obama has declared ACTA an executive agreement (while those in Europe insist that it's a binding treaty
), there is a very real Constitutional question
here: can it actually be an executive agreement? The law is clear that the only things that can be covered by executive agreements are things that involve items that are solely
under the President's mandate. That is, you can't sign an executive agreement that impacts the things Congress has control over. But here's the thing: intellectual property, in Article 1, Section 8 of the Constitution, is an issue given to Congress
, not the President. Thus, there's a pretty strong argument that the president legally cannot
sign any intellectual property agreements as an executive agreement and, instead, must
submit them to the Senate.
This is why Senator Wyden has asked the President to explain
why Congress has been cut out. Scholars have noted their concern that if allowed, this will open the door to allowing the president to regularly route around Congress
on international agreements. Even more amusing, Vice President Joe Biden, back when he was just Senator Joe Biden, was one of the most outspoken critics of an attempt by President Bush to use an executive agreement on a weapons treaty -- forcing Bush to take the agreement to the Senate. Yet here, he stays quiet.
Either way, it looks like folks have figured this out, and there's now a new White House petition, demanding that ACTA be brought to the Senate
before it can be ratified/signed by the US. This petition should be a lot more interesting than the other one if it gets enough signatures (so encourage people to sign, please!).