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, 10 Feb 2010 @ 6:44am

    Re: Re:

    I believe it is fair to say that most who provide comments to articles pertaining to ACTA are taking at face value what the author's of such articles are presenting concerning the so-called "leaked documents". The "best evidence" of a document is the document itself, and how one can denounce a document without even having read it is, to use your term, "intellectual dishonesty".

    Unlike most commenters, I actually read documents before expressing my views. In the case of ACTA, I have read all of what has been "leaked" to see for myself what all the fuss is about. The information I have gleaned from these documents has at best been underwhelming.

    My goodness, the documents reflect a desire by at least the US to consider secondary liability. I guess this means we here in the US will have to add this to our laws should secondary liability be incorporated into what may result from these discussions. Oh, wait, we already have secondary liability per Grokster. Seems a shame this little tidbit of information is not being passed along by all these article writers to those in the US who may be led to believe this would result in a change to substantive US law.

    Oh my gawd, they talk about ISP liability. Perhaps just as bad, they talk about anti-circumvention. What are we to do if these get into the final document? Ooops, we already have that in place in the US under the DMCA.

    Wow, "three strikes" is looming on the horizon and may very well become a legislative mandate. Oh no, why we might have to actually write the Fifth Amendment's requirement for due process right out of the Constitution.

    How horrible, the darn thing talks about fair use. Never mind, of course, that fair use in the US is already embodied in law and that the Supreme Court has this quaint notion that the First Amendment actually applies in matters dealing with US copyright law.

    Why this thing called ACTA might actually force the US to adopt law and procedures dealing with the importation of things into the US. Silly me, and here I thought this was firmly esconsed in US law...your know, that law that is well known to unfairly give patent holders an alternative bite of the infringement "apple".

    The list goes on, and on, and on ad infinitum.

    Let's cut to the chase. Of course content industries in the US are concerned that outside the US certain foreign countries pay lip service to certain obligations specified in long ago negotiated formal treaties. How dare they think that other countries should stop paying lip service and get with the program? How dare they think that foreign citizens are enabled to secure within the US the very same rights under US law provided to US citizens? How dare they think that reciprocity should even be a part of any discussions under a trade agreement?

    I feel like a complete dinosaur thinking for even a moment that US law embodies a system of checks and balances, all of which in the final analysis must comport with that pesky document we call the US Constitution. Hey, the thing is only a statement of policy that the executive and legislative branches are free to ignore whenever it conflicts with a course of action they desire to pursue.

    Color me singularly unimpressed with the contents of these leaked documents as they relate to US law.

    Perhpas it is wishful thinking, but how nice it would be for just one of these article writing "chicken littles" to actually focus their hue and cry arguments to explain why they believe US law will have to be changed to incorporate legal concepts that are already incorporated into US law. Or is it, perhaps, that they it easier to toss their ramblings against a wall and hope that one of their "the sky is falling" arguments sticks and strikes a responsive chord with commenters to their articles. This is fear mongering at its worst, and for this they should be ashamed.

    If they have a valid, substantive point then they should raise it and demonstrate by reference to federal statutes and judicial interpretations of those statutes why their point truly conflicts with US law. Thus far they have failed miserably in this regard, with their "this is terrible" rants being little more than internet gossip.

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