Let's Face Facts: ACTA Is Called An 'Executive Agreement' To Change The Law With Less Hassle Than A Treaty

from the an-executive-agreement-is-a-treaty-without-oversight dept

When concern over ACTA secrecy started picking up a few months ago, one of the industry lobbyist talking points that floated out was "don't worry about ACTA, because it's not a 'treaty' but an 'executive agreement' and thus, it can't impact US law." An IP lawyer in our comments keeps making this point over and over again, and arguing that anyone who argues otherwise doesn't understand the Constitution. Of course, that's silly. In response to that guy in particular, I'd been doing more research to understand the real differences between a "treaty" and an "executive agreement" and realized that pretty much everyone (including people at the State Departement) admit that the only substantive differences is that you don't need 2/3 Senate approval for an executive agreement. Otherwise, in every way, it's just like a treaty. Basically, it's a way to end-run around a treaty that wouldn't get approval. I'd been meaning to write up something about this, but it looks like Andrew Moshirnia of the Citizen Media Law Project has beaten me to it and done an excellent job ripping apart the "but it's just an executive agreement" argument:
When lobbyists and the USTR insist that ACTA won't change laws very much, I feel like I'm taking crazy pills. Of course it changes the law, why else would it need to be negotiated in secret and why else would it attract so much industry attention and support....

Executive agreements essentially give the President a means to unilaterally control the foreign relations of the United States. Presidents have historically used accords with foreign nations to conclude international pacts without giving the Senate a meaningful opportunity to interfere. See The Destroyers for Bases Deal, Yalta, The Vietnam Peace Agreement of 1973.  The constitutionality of this tool is somewhat dubious: the Constitution does not mention executive agreements, nor do the framers discuss the concept in either the constitutional convention or the Federalist Papers. The judiciary has defended the use of congressional-executive agreements*, provided that these do not conflict with the Constitution. See Reid v. Covert, 354 U.S. 1 (1957).   But hopefully the Court would be more likely to strike down unilateral Executive Agreements. But see U.S. v. Pink 315 U. S.  203, 229 (1942). However, the prospect of an executive agreement is rarely an issue because the mere presence of an existing agreement places an incredible amount of pressure on Congress to go along with the deal.

There have been some congressional efforts to restrain the use of executive agreements and to reestablish the primacy of Congress' Treaty Power. In 1954, the Bricker and George Amendments, which would have restricted the president's power to craft executive agreements, failed to clear the Senate, the latter by only a single vote.

While the President has the power to utilize executive agreements, he is not to keep them secret. Eighteen years after the Bricker and George amendments barely failed, and only a few years after the discovery of covert executive agreements with Laos and South Korea, Congress passed the Case Act of 1972. The Act requires the Executive to disclose within 60 days the text of "any international agreement" in which the United States is involved. But this does little to redress the problem of unilateral executive agreements because presidents routinely ignore the statute.
Moshirnia then wonders if the massive unpopularity surrounding ACTA and the process will put renewed attention on this questionable practice of executive agreements:
So to sum up: I am terrified that ACTA is going to be as monstrous as I believe it to be and that the United States will join the agreement by executive fiat. But maybe some good will come out of this--maybe the deep unpopularity of ACTA (trust me, people want their Internet) will force Congress to finally reassert its long neglected Treaty Power and curtail the use of executive agreements. While the Congress has deferred to the President in matters of war, there is no need to maintain such deference if ACTA empowers national ISPs to sever domestic Internet connections. None of this worrying would be necessary if the administration would simply (1) make the ACTA negotiations public, and (2) agree to submit ACTA to the Senate for formal ratification as a treaty. The longer this remains secret, the more users will worry. 

Let your Senators and Representative know that this pointless secrecy is unacceptable. Perhaps your demand will inspire them (either through pride or fear) to reclaim their treaty power and back out of a deal to which they never agreed. 
And... the next time your friendly industry lobbyist insists that ACTA is "not a treaty" so you have nothing to worry about, go ahead and explain why that's incorrect.

Filed Under: acta, constitution, executive agreement, lobbyists, treaty


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  1. identicon
    Anonymous Coward, 9 Feb 2010 @ 9:54pm

    The same tired arguments from the same small groups within the US. Seriously, a second year law student citing such impeccable legal resources as Billboard, Wired, Techdirt, etc. represents "...an excellent job ripping apart...". Yes, other groups such as the Berkman Center, EFF, Public Knowledge are mentioned and linked, but once again these other groups trod well worn ground that reflects little more that a "chicken little" mentality based upon "what if's", "Gee, it might...", etc. ad nauseum.

    Outside of the US ACTA may present issues of substantive law since there is no such thing as "Copyright Law of the World". Within the US, however, ACTA is not the "demon" so may of these groups would have people believe. Fear mongering appears to be their modus operandi, and their arguments are disingenuous, if not outright dishonest.

    Yes, executive agreements (which, BTW, do have the approval of the Supreme Court) do not require the advise and consent of the Senate. However, unlike a treaty, they do not carry the force and effect of law (See: Article VI of the US Constitution). This is an important point in that if any executive agreement may contain provisions in tension with substantive US law, those provisions can only be given the force and effect of law if they are enacted via our customary legislative process and signature by the President.

    Now, some will say "But, boy, will Congress be put under pressure to cave." Maybe some in Congress will feel such pressure, but almost certainly those members are not members of the Judiciary Committees for the House and Senate. These committees have primacy over patent, trademark and copyright matters and are by no means pushovers in these areas of law. They protect their Article I "turf" (industry lobbying notwithstanding) from Presidential intrusion. Time and time again bills have been introduced proposing legislation that gives the "chicken littles" grist for their mill, and time and time such bills die in committee.

    At some point in time a document may formally issue (its issuance is not a given), at which time no matter what it may say, it is the Congress that decides what will become and what will not US law.

    Sorry, but the arguments presented in the linked article and in its own links are not particularly persuasive since they are based on pure conjecture based upon early stage drafts that will be amended, and amended, and amended repeatedly to reflect issues raised by all parties to the ongoing discussions, not to mention that some of the documents repeatedly cited by the "chicken littles" are nothing more than hearsay summaries that are of dubious accuracy.

    Why not wait until a real text is presented before raising a hue and cry that demonizes ACTA? Personally, I much prefer to have facts in hand before casting aspersions at people. I am prepared to let them do their job and critique their work later when I have something real in hand to examine.

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