by Mike Masnick

Filed Under:
acta, approval, congress

Why ACTA Requires Congressional Approval

from the indeed dept

All along, the USTR and the White House have insisted that ACTA is not a treaty and doesn't require Congressional approval. Of course, many people have pointed out this is a game of semantics in which the White House is calling it one thing to avoid having to get Congressional approval. The EU has already admitted that ACTA is a binding treaty, and even ACTA supporters in the US have admitted it's really a treaty.

Last year, we saw a bunch of law professors explain why ACTA required Congressional approval, and law professor Frederick Abbott has written up an analysis that also questions the "baffling" claim that ACTA wouldn't need Congressional approval by pointing to the plain language of the Constitution:
Perhaps the most baffling aspect of the exercise is the announcement by USTR that it will not seek congressional approval of the ACTA. The US Constitution expressly grants Congress the power to regulate commerce with foreign nations. That express grant distinguishes regulation of international trade from the general allocation of treaty making powers under the Constitution. Moreover, Congress is expressly granted the power to make laws regarding patents and copyrights. It is difficult to identify an area of international agreement-making that more directly entails a constitutional requirement of congressional approval than the ACTA.

USTR has taken the position that the ACTA will require no changes to US law. Therefore, in USTR’s view, congressional approval is not required. This argument ignores that the ACTA regulates commerce with foreign nations, whether or not it requires changes to existing domestic law. Beyond that, however, does US law presently grant customs authorities a broad power to seize undefined “suspect goods” at the border as the ACTA requires?
The larger point raised by Abbott is one that we've been pointing out for years: it's stunning how all of these countries that pretend they're pushing for "free trade" and a decrease in protectionism, are really doing exactly the opposite with so-called "free trade" agreements like ACTA. They're nothing more than protectionist policies, and they're going to backfire in a big way by allowing other countries to be protectionist back (something that even Homeland Security has warned about). Here's Abbott:
One wonders what the G8 negotiators were thinking about as they negotiated the ACTA. The agreement seems designed to confer extensive authority on customs to seize and hold goods as they enter and/or pass through borders. It is the virtual antithesis to opening markets to international trade. We see the difference between the rhetoric of Doha and the reality: stalling on trade liberalization while erecting new nontransparent trade barriers. Mystifying.
It really does seem problematic. As these countries claim they're trying to decrease trade barriers, the whole point of ACTA is to give border control in all of these countries excessive and broad powers to block the import of goods and effectively put up new trade barriers.

Reader Comments

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  • identicon
    abc gum, 12 May 2011 @ 4:47am

    Another example of doublethink from the Ministry of Truth

    reply to this | link to this | view in chronology ]

  • icon
    Christopher (profile), 12 May 2011 @ 5:20am

    On the other hand....

    ... I kinda like trade barriers.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 May 2011 @ 6:40am

    Don't worry... It won't matter

    Call me a pessimist, but even if congressional approval is required, I still have little faith it will be rejected. The lobbyists and bank coffers will expand to guarantee approval ratings.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 May 2011 @ 9:17am

    The past few administrations have demonstrated they don't give a shit about the American people nor the Constitution. They care about themselves and how much money they are being paid by Hollywood, big oil, Wall Street, etc. Most of them are just lining themselves up for a cushy job when they are done "serving the people".

    reply to this | link to this | view in chronology ]

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