Obama Administration To Use ACTA Signing Statement To Defend Why It Can Ignore The Constitution In Signing ACTA

from the trampling-on-the-constitution dept

While the EU, Mexico and Switzerland are apparently not yet ready to sign ACTA, a lot of others are apparently planning to sign the document this weekend, despite questions about its legality. Because of that Sean Flynn has written up an analysis suggesting that, even if the document is signed it’s not clear that the treaty can actually go into effect anywhere. Whether or not that’s accurate, what I wanted to focus on was a separate tidbit of info suggesting that, while the Obama administration is very much aware of the very serious Constitutional questions raised by the signing, it’s going to issue a “signing statement” that defends its right to ignore the Constitution here.

In the US, there is no plan to constitutionally ratify the agreement. Indeed, this will likely be the main focus of the US signing statement. The document will be an argument to Congress that the executive can pass this agreement alone ? legally binding the US to a trade agreement without no congressional authorization ? because, according to the Executive, ACTA is fully consistent with current US law.

Thus, the administration argues that there doesn’t need to be a Senate review because no laws will be changed. This is, of course, wrong, since ACTA (1) does not align itself fully with US laws and (2) massively constrains Congress’s ability to change certain intellectual property laws in the future. Furthermore, this basic argument is ridiculous. The President is only allowed to sign executive agreements that cover items solely under the President’s mandate. Intellectual property is not. It’s clearly given to Congress under the Constitution.

Of course, I’m quite curious as to how the Administration, with Joe Biden as VP, can defend this action. After all, as well chronicled, when Joe Biden was still Senator Biden in 2002, he went ballistic against then-President George W. Bush for trying to sign an arms control agreement with Russia as an executive agreement, rather than a treaty with Senate ratification. He actually sent a letter to the President demanding that the agreement be submitted as a treaty for ratification in the Senate. The letter apparently “defend[ed] the institutional prerogatives of the Senate.” Of course, if we had any real reporters out there who actually asked the administration real questions, they might question this obvious hypocrisy within the administration. But, instead, expect almost no one to cover this story.

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Comments on “Obama Administration To Use ACTA Signing Statement To Defend Why It Can Ignore The Constitution In Signing ACTA”

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Anonymous Coward says:

Mike, you can keep stating the same thing over and over again, but it won’t change reality. It seems to be a day after day thing now, sort of a death watch every time you get upset about something.

Give it up. This is ANOTHER case where your side loses. Too bad you can’t understand that it is really a long term win. Short term, well, it sucks to be you.

Ryan says:

Re: Response to: Anonymous Coward on Sep 30th, 2011 @ 2:01pm

What does it matter which side ‘wins’ or ‘loses’ when speaking about the constitution? No matter which side is doing something unconstitutional, we all lose. Its no wonder this country is going down the tubes. There are too many voters in this country, like you, who can’t think for themselves. Ugh…

Thanks, Mike, for making people aware of this issue.

Anonymous Coward says:

Re: Re: Re: Re:

“And the “power grab” is unconstitutional because….?”

IP is supposed to promote the progress and last a limited time. Our current laws, with continual retroactive extensions, do neither. Expanding those laws when they need to be redacted only makes the problem worse.

If Obama were signing a treaty opposing IP laws, you (Ip maximists) would be arguing that he has no such authority. You’re only arguing that he has this authority because what he’s signing is legislation that you want.

“and many of the points they make are simply nonsensical.”

What point has MM made that’s ‘nonsensical’?

Anonymous Coward says:

Re: Re: Re:2 Re:

“If Obama were signing a treaty opposing …”

and don’t deny it either. Some of the IP maximists posting here are posing from interested law firms (as MM has exposed through his knowledge of their IP addresses, though I’m sure now many use TOR). You post here on Techdirt pretending to be critics just to make critics look bad (and get Techdirt in potential trouble with the government, who requested that such a post be removed). IP maximists contradict themselves all the time when convenient, you have no integrity and no honesty. You don’t care about legal or ideological principles of following the law or what the law says, you only care about your own pockets and what’s in your own personal best interests. You’ll claim the law says whatever is in your best interests.

More examples of your selfish nature.


and the list goes on.

The only thing consistent about the position that an IP maximist takes is that it is self interested. If one assumes self interest, all contradictions vanish. Likewise, it is reasonable to conclude that you are only taking this position now because it’s in your personal interest.

john b says:

Constitutional arguments aside, the key thing to remember is that other countries don’t need to care whether the US has ratified it. Under prevailing norms of international law, as well as under the Vienna Convention on treaties (which the US has ratified), if the executive of a country or his delegate signs an instrument, that country is bound (unless the treaty itself actually specifies that a signature doesn’t bind the country until ratification).

Here’s an analogy: A CEO signs a contract to buy $105,000 worth of goods, but the company has a bylaw that says that contracts over $100,000 require board approval. Unless the CEO told the other party that, though, when the company gets taken to court it’ll have to pay, even if it never approved the contract. Internal national laws, just like quirks of a company’s bylaws, don’t have an outside effect.

So, a US court might not be “bound” by ACTA, but internationally, the president has just bound the US to not reform copyright. If the US fails to meet its obligations on international law, other countries might take trade sanctions against it, etc–there could be real, practical consequences.

(Under the reasoning of ACTA supporters, ACTA is basically a legal nullity from a US perspective, and the president can sign whatever legal nullities he wants. But again the important point is the international perspective, not the US’s internal legal affairs.)

DH's Love Child (profile) says:

Re: Re:

Um, except in your analogy, if the com[any can prove that the contract was signed outside of the CEO’s authority, it would invalidate the contract. Otherwise, anyone with ‘signing authority’ for a company could put them on the hook. That’s why comapnies have limit’s on employees’ signing authority to begin with.

Back to the point, if the president signs this AND it is clearly outside his mandate (as it appears) then Congress could very well tell the rest of the world “Too bad” and choose to not abide by it. My guess is that this would have to go before someone like the ITF for enforecement.

Sean Flynn (user link) says:

Re: This post has it right

This comment gets it right. The problem is that: (1) the constitution requires Congress to approve international agreements in its area of competence (defined in Article I), including “foreign commerce” (i.e. trade) and intellectual property (2) international law does not care what our constitution says — the president can bind unilaterally if, essentially, he says he can. It does not matter than we have not ratified the Vienna Convention because this is customary international law (the common law of nations). So ACTA can bind the US under international law even though it cannot bind US courts.

What would keep it from binding is if the signing statement says something like “We love this agreement. We aspire to it. It is based on US law. But it cannot bind the US until it is ratified by Congress and I have no intention of sending it to congress.” But that is not likely. What he will sat is a new claim — I can bind the US to any agreement that I say does not change US law.

To Jamie’s point, it does not actually matter on the constitutional issue whether or not ACTA does in fact comply with US law. The president cannot unilaterally bind the US to international agreements pledging to keep US law the same without congressional approval. FTAs have to be passed by Congress even if they don’t change US law.

So they are wrong twice: ACTA is not fully consistent with US law; regardless it is unconstitutional to bind the US to it without congressional consent. And the kicker is: the president CAN in fact bind the US to the agreement without congressional consent (under international law).

Where is the (old) Biden when you need him.

Just another Amerikan says:

Re: Re:

So, according to John B, the US President does not have to follow the Constitution or any US laws when it comes to international matters? That?s funny; I thought that the President had to say some kind of oath affirming that he will PRESERVE, PROTECT, and DEFEND the Constitution of the United States. However, this explains why the President can execute an American citizen with a drone strike in Yemen for simply exercising his right to free speech. This has become a very scary country under Obama. Exercise your right to free speech as long as you say what his party wants you to say, question him or speak out against him and you will be executed without due process. Just like the Affordable Care Act showed, there is no longer a need to follow the US Constitution. The President can do whatever he wants, whenever he wants. Execute as many Americans as he pleases, enter into any agreements with any country he chooses. Give away public lands to China in order to pay back debt. No man made laws can bind him, he is the Messiah. I hope the extreme left is happy with the monster that they have created. Anyone see bank stocks lately? I think it?s time for another huge bank bailout so that CEO?s can get their 30 million dollar bonuses, can?t expect them to get by on just 15 or 20 million dollars!

James Love (profile) says:

Consistency with US law

Krista Cox and I have a note on the inconsistencies between US laws and the ACTA provisions on injunctions and damages. http://keionline.org/node/1289 I think this is directly relevant to the use of the executive agreement. But, will this matter right now, in the current political environment? There are not many in Congress or the White House who are prepared to rein in the aggressive and ham handed IPR negotiators at USTR.

Anonymous Coward says:

Re: Consistency with US law

There are not many in Congress or the White House who are prepared to rein in the aggressive and ham handed IPR negotiators at USTR.
You make it sound like the USTR’s men are a bunch of maverick’s acting on their own intiative, instead of the WH’s. Is that how things are?

James Love (profile) says:

Re: Re: Consistency with US law

USTR is part of the White House. There are other parts too. In the inter-agency review, USPTO, Library of Congress Copyright Office, Department of Commerce and many other agencies participate, as well as other parts of the WH. Stan McCoy is strong personality, and he pushes, hard, for certain things. There is not that much push back from other non-USTR actors in the review process. Well, at one point, in ACTA, other agencies insisted that USTR push the EU harder to remove patents from the civil enforcement provisions, and that happened. This was partly due to the provisions in the Health Reform Legislation that eliminate injunctions and limited damages for certain patent infringements, plus things like the limits on remedies for infringements by doctors. But USTR has put even worst provisions into the TPPA, without much pushback from the same agencies that wanted patents out of ACTA.

Anonymous Coward says:

Re: Consistency with US law

There are not many in Congress or the White House who are prepared to rein in the aggressive and ham handed IPR negotiators at USTR.

James, I don’t think there are ANY meaningful voices who are carrying that message in the White House or Congress. McLaughlin is gone and was always looked at cock-eyed due to his Google pedigree. Wyden and Lofgren have no particular gravitas. There’s a little pushback at Commerce and State but the momentum is pretty clear.

Anonymous Coward says:

White House Petition

Just thought people who feel strongly about this issue should know there is a petition on whitehouse.gov dealing with ACTA.

If you didn’t know about the feature at the White House website, you can create and sign petitions. Enough signatures and the administration will release a statement concerning the petition, and their reasoning for agreeing or disagreeing with the petition.

The section is called ‘We the People’

McCrea (profile) says:

Double negatives are unconstitutional

“legally binding the US to a trade agreement without no congressional authorization”

“Without no”? One of the terms which is the opposite of both “without any” and “with no”?

So, strickly speaking, that means “legally binding the US to a trade agreement with congressional authorization” … which does not seem to be the issue described by Mike, et alia.

I’ve perused Techdirt for years, and this is the first time I’ve been compelled to go grammar-nazi. I hope my digression is more excusable than this error.

Daemon_zogg (profile) says:

Obama Administration To Use ACTA Signing Statement To Defend Why It Can Ignore The Constitution...

One step closer to communism. OH WAIT! We’re ALREADY THERE! Sorry. I was temporarily blinded by the glare from the corporate lobbyists brain-washing the US congressmen and congresswomen with bribes. And promises of high-income jobs when their term is over. You remember, the ones that were supposed to represent the constituents that sort of, well you know, voted for them. I love democracy. It’s the US government, I hate. };P>

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