Why ACTA Requires Congressional Approval
from the indeed dept
All along, the USTR and the White House have insisted that ACTA is not a treaty and doesn’t require Congressional approval. Of course, many people have pointed out this is a game of semantics in which the White House is calling it one thing to avoid having to get Congressional approval. The EU has already admitted that ACTA is a binding treaty, and even ACTA supporters in the US have admitted it’s really a treaty.
Last year, we saw a bunch of law professors explain why ACTA required Congressional approval, and law professor Frederick Abbott has written up an analysis that also questions the “baffling” claim that ACTA wouldn’t need Congressional approval by pointing to the plain language of the Constitution:
Perhaps the most baffling aspect of the exercise is the announcement by USTR that it will not seek congressional approval of the ACTA. The US Constitution expressly grants Congress the power to regulate commerce with foreign nations. That express grant distinguishes regulation of international trade from the general allocation of treaty making powers under the Constitution. Moreover, Congress is expressly granted the power to make laws regarding patents and copyrights. It is difficult to identify an area of international agreement-making that more directly entails a constitutional requirement of congressional approval than the ACTA.
USTR has taken the position that the ACTA will require no changes to US law. Therefore, in USTR?s view, congressional approval is not required. This argument ignores that the ACTA regulates commerce with foreign nations, whether or not it requires changes to existing domestic law. Beyond that, however, does US law presently grant customs authorities a broad power to seize undefined ?suspect goods? at the border as the ACTA requires?
The larger point raised by Abbott is one that we’ve been pointing out for years: it’s stunning how all of these countries that pretend they’re pushing for “free trade” and a decrease in protectionism, are really doing exactly the opposite with so-called “free trade” agreements like ACTA. They’re nothing more than protectionist policies, and they’re going to backfire in a big way by allowing other countries to be protectionist back (something that even Homeland Security has warned about). Here’s Abbott:
One wonders what the G8 negotiators were thinking about as they negotiated the ACTA. The agreement seems designed to confer extensive authority on customs to seize and hold goods as they enter and/or pass through borders. It is the virtual antithesis to opening markets to international trade. We see the difference between the rhetoric of Doha and the reality: stalling on trade liberalization while erecting new nontransparent trade barriers. Mystifying.
It really does seem problematic. As these countries claim they’re trying to decrease trade barriers, the whole point of ACTA is to give border control in all of these countries excessive and broad powers to block the import of goods and effectively put up new trade barriers.