Time To Realize That The Obama Administration Doesn't Even Have The Authority To Commit The US To ACTA Or TPP

from the executive-branch-overreach dept

There is a major problem with the Anti-Counterfeiting Trade Agreement (ACTA) that has little to do with IP or the internet: how does international law get made—by the President alone, or with Congress’s involvement? ACTA’s key problem in the United States is a Constitutional question that turns on the separation of powers. The President, or an office of the executive branch like USTR, can negotiate treaties that fall within presidential powers. But for topics that fall within Congressional powers, like IP law, the Constitution requires that Congress be involved in the process.

The most obvious and difficult way to involve Congress is through Article II of the Constitution. Under Article II, a treaty negotiated by the executive branch is presented to the Senate for ratification. The process is notoriously difficult, because it requires two-thirds of the Senate to approve. So USTR, almost understandably, wants to avoid the Article II process if at all possible.

A number of years ago, this wouldn’t have been a problem, or at least not a Constitutional one. Congress gave USTR “fast track” authority to negotiate trade agreements, subject to an up-or-down vote at the end of the negotiating process. This authority, however, expired in July 2007. ACTA wasn’t announced until October of that same year. Fast track wasn’t great, because it didn’t allow for amendments, but at least it allowed final oversight over the executive branch by Congress. It also allowed international law to be made, because the hurdle of Senate ratification for Article II treaties can make that process come to a standstill.

USTR knew, then, when it began negotiating ACTA, that it no longer had Congress’s authorization to negotiate these kinds of trade agreements. This doesn’t mean that USTR had to drop its activities, but at the end of the negotiating process, it would have to seek Congress’s approval anew. If Congress decided not to do an up-or-down vote or amend the agreement, the agreement would need to go to the Senate for ratification, or it would fail.

So USTR tried to avoid the process, and Congress, entirely. USTR initially explained that it planned to negotiate ACTA under the President’s powers, alone. This made no sense, as prominent legal scholars noted. The President’s inherent powers do not involve IP. That’s Congress’s purview.

In March 2012, USTR switched gears. After Senator Ron Wyden publicly questioned the way in which ACTA had been negotiated, the Legal Advisor to the Department of State, Harold Hongju Koh (disclosure: also formerly the dean of my law school and my professor of transnational law), explained that ACTA wasn’t being negotiated just by the President. Koh explained that–surprise!–Congress actually had been involved in ACTA, authorizing the negotiation of ACTA beforehand in the 2008 PRO-IP Act.

There’s a major problem with this argument. First, the part of the PRO-IP Act Koh cited describes the creation of a plan for US agencies to generally coordinate on IP enforcement, under the IP Czarina Espinel. It isn’t addressed to USTR, and it doesn’t authorize USTR to negotiate an agreement.

Second, there’s an element of madness in claiming that the 2008 PRO-IP Act authorizes ACTA. ACTA was announced in 2007. How can Congress pre-authorize the negotiation of a treaty that was announced in 2007 through a law enacted in 2008?

Thus, while the EU focuses on ACTA’s impact on fundamental rights and liberties, in the United States the procedural problem blows those questions out of the water.

This is about situating ACTA against a bigger picture of the excessive power of the President, and the ability of Congress to put limits on the executive branch. In the context of treaty-making, it’s about all of our international lawmaking, and an executive branch that has grown used to making international commitments without involving democratic process. It’s important to understand that ACTA is just the tip of the iceberg, where the public has finally encountered the craziness with which international law now gets made in the United States. Frequently, now, international law gets made by the President under purported prior authorization by Congress, without a democratic vote at the end of the process.

There are enormously important values at stake. When the executive negotiates without Congress’s participation, citizens don’t get a say in the process. We don’t get to review the agreement, or pressure our representatives into changing or rejecting it. However, special industry groups do, including the RIAA, as advisors to USTR.

It’s not that all the problems with IP and trade law would disappear if we involved Congress. But the struggles of advocates and academics with USTR’s lack of responsiveness and the secrecy around ACTA and TPP show that we require at least a sense of being able to effect change through democratic process.

Congress needs to get involved here. It needs to make clear to the administration that it must send ACTA to Congress to seek approval, or to the Senate for ratification as an Article II treaty. With this in mind, I am part of a group of legal academics that is writing to the Senate Finance Committee asking them to make these requirements clear with respect to ACTA. The PRO-IP Act doesn’t authorize ACTA, and IP is not part of the President’s inherent powers, so Congress must get involved.

And the problem continues. Last week, the USTR and other countries met to continue negotiating the Trans-Pacific Partnership Agreement (TPP) in Dallas. The TPP also contains an unreleased IP chapter of dubious substance. As of now, USTR still doesn’t have fast-track authority from Congress to negotiate agreements like the TPP. USTR also can’t claim that the PRO-IP Act authorizes negotiations this time, because unlike ACTA, TPP is broader than just IP. So once again, USTR is negotiating an international agreement without a clear plan of how Congress or the Senate will be involved. If USTR does not get the desired fast-track authority for TPP, it will have to try to get after-the-fact approval from Congress or ratify TPP as an Article II treaty. So where ACTA is facing a Constitutional crisis where the executive branch is claiming it can go it alone, TPP is an example of an overactive agency not thinking through how it will Constitutionally accomplish its goals.

What we have right now is an overactive executive branch accustomed to a lack of supervision, and a Congress that has failed to assert its Constitutional responsibility in this sphere. If we want public input on international law-making at any point in the future, this is a dynamic that we’re really going to have to work hard to change.

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Comments on “Time To Realize That The Obama Administration Doesn't Even Have The Authority To Commit The US To ACTA Or TPP”

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Anonymous Coward says:

I just want to get this out of the way before it even starts on the comment section.

It’s not about Democrats or Republicans, Liberals or Conservatives or whatever bi-polar paint coat the shills will try to use to fire up your political sympathies and derail the comments sections. There are bad apples on both sides of the fence that are deeply corrupted into the pockets of corporations.

Don’t let the trolling derail you from the issues at hand: attacks on your fundamental rights and disregard for the procedures and safeguards to maintain them [which does not only include “due process”, but also the balance between powers that stop each other of running free and promoting/perpetuating abuse].

Thank you very much.

AzureSky (profile) says:

Re: Re:

its so true.

neither side is there to do the job they where voted into office to do, they are there to enrich themselves by helping to further enrich the wealthy corporations of this great nation(the Incorporated States of America)

it dosnt matter what party they claim to be part of, their actions speak quite clearly to the fact that they dont give a flying fuck whats best for the nation, only whats best for the wealthy and big business matter…because who else is going to fund their next re-election campaign?

if you want to know who they really work for, check open secretes for who donated the most to their latest runs for office….


look at that image, gives you an idea why I have decided I wont be voting for any of them, I mean, Its not like our vote really matters, the electoral collage picks the pres not the people, what more proof do you need then the bush/gore election?

So, I will vote based on who i have the least distaste for even if its not one of the top 2….

Jayce says:

It is only a symptom

“This is about situating ACTA against a bigger picture of the excessive power of the President, and the ability of Congress to put limits on the executive branch.” And there is the root of _many_ of the problems we’ve been having. Congress keeps delegating its authority to others, instead of doing its job. I believe they do not have the power to delegate the powers given them by the constitution (because every power is a responsibility duly assigned), but the Supreme Court continues to very rarely tell Congress (or the President) “No!”. The Supreme Court exists to check the other branch’s activities. If it generally refuses to do so, what purpose does it serve?

Anonymous Coward says:

“Time To Realize That The Obama Administration Doesn’t Even Have The Authority To Commit The US To ACTA Or TPP”

Just one man’s opinion, but it does seem to me that some members of academia are trying to raise in this instance the spectre of a constitutional question of significant proportions on an issue that is a political question and non-justiciable.

Moreover, the tack being taken in the letter to the Senate Finance Committee does seem a bit off the mark. If this is really founded on an “IP” issue, I would have expected it to be directed to the Senate Judiciary Committee. Perhaps the letter writers are trying to find a sympathetic ear somewhere, anywhere, in the Senate (why the House is not also receiving a letter eludes me).

I can only wonder if these co-signers would even take the time to write a letter trying to light a fire under the Senate’s a** if the provisions associated with “IP” were removed entirely from these various trade agreements.

Based upon the academics who have signed on to the letter and their well known hand-wringing views of the alleged legal issues involved, virtually all of whom disagree with how Congress has exercised it legislative power under Article 1, Section 8, Clause 8, the letter to me appears to be little more than a cry in the dark for someone in Congress to listen to them since case law does not exactly present strong support for what they are saying.

Perhaps I will be proven wrong, but right now it appears to me that the co-signers are trying to scream into political winds that are blowing in the opposite direction.

Gwiz (profile) says:

Re: Re:

Moreover, the tack being taken in the letter to the Senate Finance Committee does seem a bit off the mark. If this is really founded on an “IP” issue, I would have expected it to be directed to the Senate Judiciary Committee.

This was my original thought also, until I looked up the jurisdiction of the Judiciary Committee and found that ACTA and TPP would fall exactly within their purview:

The Committee concerns itself with matters relating to: taxation and other revenue measures generally, and those relating to the insular possessions; bonded debt of the United States; customs, collection districts, and ports of entry and delivery; reciprocal trade agreements; tariff and import quotas, and related matters thereto; the transportation of dutiable goods; deposit of public moneys; general revenue sharing; health programs under the Social Security Act, including Medicare, Medicaid, the Children’s Health Insurance Program (CHIP), Temporary Assistance to Needy Families (TANF) and other health and human services programs financed by a specific tax or trust fund; and national social security. (emphasis mine)

Anonymous Coward says:


One has to assume that the author is speaking only about the federal government, because for most of our nation’s history states have exercised the independent right to also legislate in matters such as these.

Considering just the powers of the various branches of our federal government, the statement is a gross generalization. Yes, Congress is specifically authorized to create laws associated with “writings” and “inventions”. It is easy to see how one might construe this as meaning only Congress has this power, but experience proves otherwise. Sure, Congress passes laws and the President sees to it that they are executed. At the same time, however, the President holds the power to implement such laws, and in the process is authorized to enact federal rules that carry the full force and effect of law. Much the same can be said of the judiciary. Since the inception of the United States the judiciary has crafted its own set of laws that go by the name “common law”. In the area of copyrights, for example, it was the judiciary that “enacted” what is now known as fair use. Similarly, it was the judiciary that “enacted” secondary liability.

Thus, to state that Congress is the sole source of power respecting patent and copyright law is a generalization that overstates the case and presents a misleading picture of how power is allocated among our three federal branches.

Chilly8 says:

I think I know why USTR is hell bent on getting this through any way they can.

There is a timeline on one alt hist site, where, in the future, SCOTUS throws out the DMCA and rules that infringment, when not for commercial purposes is not a crime. The result of this is that the RIAA, SoundExchange, BMI, and all the other collection agencies go bankrupt within 13 years of this SCOTUS ruling.

I think the USTR is afraid of something like that happening, and could explain why movie studios and record companies try to settle most cases, before going to court. I think they are afraid of being slapped down by SCOTUS

Anonymous Coward says:


In the part that reads:

Section. 8.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Source: http://www.archives.gov/exhibits/charters/constitution_transcript.html

Pro hint: When searching long texts zero in on one sentence or word that you are looking for, in this case “promote the progress” was used.

Anonymous Coward says:

Re: Re:

Perhaps you should direct your reading lesson to the Supreme Court, which like most others refer to this particular section of the Constitution as “Article 1, Section 8, Clause 8”. If anyone wonders what it says, all they need to do is refer to Article 1, Section 8, and then count down to paragraph 8.

Anonymous Coward says:


Section 10 of the US constitution says you are wrong.

Section. 10.

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

Historically only congress has the power to enact treaties or such things, not the executive they can negotiate but the final aproval was always by the US Congress not any president, nor any judge anywhere in the land.

vruz (profile) says:


Also important… “securing for limited times”

which is not consistent with Mickey Mouse laws, and software patents.
Of course monopolistic industries are in love with the bit that reads “securing”, but this has been forever intended as an exceptional concession the public makes, it’s not a god-given entitlement.
The monopolistic industries would love to believe their own breathing air if you let them have it.
And apparently there’s money to be made taking away from the commons, extorting and twisting the law against the sovereign people who graciously granted them exceptional benefits. Not to mention the lobbying parasites who profit from this sorry state of affairs at the expense of everybody else.

Beyond the pale.

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