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. icon
    Hephaestus (profile), 10 Feb 2010 @ 1:05am

    Re: Re:

    Okay hit return twice wanting line feeds ... you guys have to take care of that flaw in your site ...

    Back to psych analysis ...

    AC - "Within the US, however, ACTA is not the "demon" so may of these groups would have people believe."

    MM - "How do you know this? I asked you this yesterday and you did not answer."

    A statement like AC's often is used to mis represesent the facts as a statement. "ACTA is not the "demon"" is actually a freudian slip the quotes give it away. If he slips up and believes it ...

    AC - "Yes, executive agreements (which, BTW, do have the approval of the Supreme Court) .... customary legislative process and signature by the President"

    This person is rationalizing to no end. He is probably a person with limited legal experience or a business type that doesnt understand the law. There is a bit of delusion there also.

    AC - "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."

    Yes that is true in some ways. Praying that your feeling of entitlement will exist for everdoes not mean it will go on. You were given a temporary monopoly one hundred plus years ago that will end. For ever and a day does not exist in an age of information and ever expanding storage capacity.

    "amended repeatedly to reflect issues raised by all parties to the ongoing discussions"

    This one is so easy. media-IP types are the only ones contributing to ACTA. So there are no other parties in the ongoing discussions.


    Conclusion ... this person does not see further than their pocket book. this person does not see the bigger picture that control is an illusion and control of others is impossible. This person believes that ACTA will save "the" industry, which ever industry that might be. There is a fear of exposure. There is a fear that this will break into prime time.

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