Harvard’s Jack Goldsmith and Lawrence Lessig have an interesting op-ed in today’s Washington Post arguing that it woudl be constitutionally dubious for President Obama to adopt the Anti-Counterfeiting Trade Agreement (ACTA) as an executive agreement. Here’s a taste:
The president has no independent constitutional authority over intellectual property or communications policy, and there is no long historical practice of making sole executive agreements in this area. To the contrary, the Constitution gives primary authority over these matters to Congress, which is charged with making laws that regulate foreign commerce and intellectual property.The administration has suggested that a sole executive agreement in this instance would not trample Congress’s prerogatives because the pact would not affect U.S. domestic law. Binding the United States to international obligations of this sort without congressional approval would raise serious constitutional questions even if domestic law were not affected. In any event, an anti-counterfeiting agreement made on the president’s own authority could affect domestic law in at least three ways:
First, the noncriminal portions of this agreement that contemplate judicial enforcement can override inconsistent state law and possibly federal law. Second, the agreement could invalidate state law that conflicts with its general policies under a doctrine known as obstacle preemption, even if the terms are not otherwise judicially enforceable. Third, a judicial canon requires courts to interpret ambiguous federal laws to avoid violations of international obligations. This means courts will construe the many ambiguities in federal laws on intellectual property, telecom policy and related areas to conform to the agreement.
Martinned says:
Now there’s a legal witch hunt I can believe in! No matter whether it is by legal argument good or bad, as long as we can get ACTA off the table it’s fine by me.
On the European side, the EP (European Parliament) is insisting on more transparency, which apparently would also amount to a pretty good way to kill the deal. (See Julien Frisch’s blog, which is very good on EU matters, here for the letter from the President of the Parliament on this matter.) The European Data Protection Agency has also gone after the treaty. (Again Julien Frisch.)
March 26, 2010, 3:11 pmFredC says:
Of course, the President has no independent power, other than being the “executive” and the “commander in chief.” And thus, we have this fruitless discussion around every “executive agreement” any President makes.
March 26, 2010, 3:39 pmDjDiverDan says:
Goldsmith and Lessig seem to forget that Obama is a “Constitutional Scholar” (at least according to his supporters and much of the MSM) – thus, he is not bound by the Constitution, and everything he does is OK. “Emoluments Clause? What Emoluments Clause – I can Appoint Hilary Clinton to be Secretary of State, the Constitution can’t stop me.” “Second Amendment? What Second Amendment? The DC Handgun Ban seems like reasonable regulation to me!” “Limited Government? What Limited Government? The Commerce Clause allows my Congress to do anything I want done, even mandate that everyone buy Health Insurance!” Hail Obama! We don’t need no meddling Constitution!
March 26, 2010, 4:25 pmThe Volokh Conspiracy » Blog Archive » Outrageous Treaty Nonsense, or The Copyright Tail Wagging the Internet Dog says:
[...] ongoing negotiations about ACTA, the multilateral “Anti-Counterfeiting Trade Agreement.” [See Jonathan Adler’s posting earlier today about ACTA here] The US Trade Representative’s office has been conducting these negotiations entirely in secret [...]
March 26, 2010, 5:11 pmChris Travers says:
I agree with the editorial. However, before blaming Obama, does anyone really think it would be different if McCain had been elected?
March 26, 2010, 6:28 pmDjDiverDan says:
Of course I can’t be certain (there are so few things of which I can be certain), but I would certainly hope so. That kind of optimism, unwarranted though it may be, will sustain me while voting in the upcoming elections.
March 26, 2010, 6:52 pmMike McDougal says:
You can get the text of the treaty here.
March 26, 2010, 7:01 pmChris Travers says:
Even given the fact that there was no difference between Obama and Bush on this issue?
March 26, 2010, 7:28 pmMLS says:
They join the chorus of academics raising constitutionaly issues pertaining to ACTA.
The current members of the chorus are Goldsmith and Lessig. On information and belief, Nesson has been extended an invitation to join.
Must be a slow “legal issues day” in Beantown.
March 26, 2010, 7:32 pmChris Travers says:
A more serious question is what is the impact of adopting the ACTA as an executive agreement?
It wouldn’t obligate Congress to pass laws, right? It wouldn’t prevent Congress from repealing existing laws, right?
It wouldn’t have any effect on court proceedings, correct? And it wouldn’t provide any new powers to law enforcement, correct?
So wouldn’t it just be a game of “let’s pretend?”
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March 26, 2010, 11:16 pmLindsey Abelard says:
I think the situation would be far worse had McCain been elected, both for this ACTA as well as national social health care. What I have been at pains to communicate with people is that McCain is no conservative. Indeed, he is more liberal than most centrist democrats. We have known this about McCain since we met with his staff people in 1990.
I actually think McCain is more liberal (left) than even Obama.
March 27, 2010, 1:26 amInstapundit » Blog Archive » IS THE ANTI-COUNTERFEITING TRADE AGREEMENT unconstitutional?… says:
[...] IS THE ANTI-COUNTERFEITING TRADE AGREEMENT unconstitutional? [...]
March 27, 2010, 9:33 amMH says:
“When I use
a wordthe Constitution,”Humpty Dumptythe President said, in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”“The question is,” said Alice, “whether you can make
wordsthe Constitution mean so many different things.”“The question is,” said
March 27, 2010, 9:54 amHumpty Dumptythe President, “which is to be master — that’s all.”Mark says:
The Senate has to ratify treaties before they become binding, though The One can implement whatever doesn’t require new legislation via executive order.
March 27, 2010, 9:56 ammemomachine says:
Hmmmmm.
Soooo.
Are people suggesting that if Obama signs an executive order *I* am bound by it?
What the hell is this? Governance by decree?
March 27, 2010, 10:26 amMartinned says:
Maybe you should take this up with Andrew Jackson.
March 27, 2010, 10:39 amSonicfrog says:
Here is one counter argument – Given what Congress has done lately, do we really want them to also handle this? I mean really, I can think of all sorts of new taxes and fees that could be attached to this.
March 27, 2010, 11:03 amAlan S. Blue says:
Lindsey Abelard: “What I have been at pains to communicate with people is that McCain is no conservative. Indeed, he is more liberal than most centrist democrats. “
Part of the issue is how much everyone remains on the one-dimensional liberal-to-conservative axis. He isn’t conservative at all… on some things. But it boggles a lot of people when you make a comment like that.
Use the Pournell Political Grid. McCain and Obama are both ‘statists’, that is – they both reach for more regulation as the gut response to any issue. They’re different on how they might apply the state for issues. But just look at the types of cuts McCain was trying to put forth as his proof of “Conservatism.” His entire array of cuts could be summed up as waste, fraud, corruption, etc. That is: “We need to do these things! But we need to do them better!”
March 27, 2010, 11:41 amSSG Jeff (USAR) says:
Andrew Jackson is hardly the sort of President I would want any President to emulate from a constitutional standpoint. Neither is Woodrow Wilson.
March 27, 2010, 12:09 pmGildas says:
Martined:
Now there’s a legal witch hunt I can believe in! No matter whether it is by legal argument good or bad, as long as we can get ACTA off the table it’s fine by me..)
On the European side, the EP (European Parliament) is insisting on more transparency, which apparently would also amount to a pretty good way to kill the deal. (See Julien Frisch’s blog, which is very good on EU matters, here for the letter from the President of the Parliament on this matter.) The European Data Protection Agency has also gone after the treaty. (Again Julien Frisch.)
Wow! An internationalist idea that is so bad that it unites American Libertarians, Conservatives, a lot of Liberals and the nutcases in the *European Parliament* in opposition to it.
Yet Obama says go for it!
March 27, 2010, 2:31 pmAndrew_M_Garland says:
After two more appointments to the Supreme Court, the Constitution is whatever Obama wants it to be.
March 27, 2010, 6:56 pm~aardvark says:
Where were Lessig and Goldsmith–as well as Adler and Post–when ACTA and its nefarious predecessors were being quietly shoved through by Obama’s predecessor? This story has been six years in the making. It first surfaced when the Bushies were twisting Australian arms to sign a bilateral treaty that was quite similar to ACTA. In fact, it was just one of several treaties set up to create an environment for ACTA. There is absolutely no objective reason for these negotiations to be secret–this a purely commercial treaty with no national security or military implications. It should have been shut down long before Obama took office. Don’t expect the media to come out against it–after all, they are stakeholders in obscene copyright controls as well, so investigative reporting on the issue is bound to get spiked. It’s amazing enough that an op-ed got through, but the non-traditional media should play a much larger role in bringing an end to this ugly chapter.
March 28, 2010, 3:30 amMartinned says:
I’m not sure if I would use the word “nutcases”. One of the key proponents of more scrutiny of this dossier is (former Belgian Prime Minister) Guy Verhofstadt’s ALDE group. (Link) He’s the biggest federalist of them all, writing books like “The Financial Crisis: How Europe can save the world“, and “The United States of Europe“, but he’s hardly a nutcase. I’d vote for him if I could. (I voted for the Dutch ALDE candidates instead.)
March 28, 2010, 11:03 amDjDiverDan says:
Do I want Congress to handle this? Well, no, not really. But I do think that the Constitution places the responsibility (and authority) with Congress for this matter, so what I want is really irrelevant; more than anything, I want a Government that is bound by, and follows assiduously, the dictates of the Constitution. So, though I might disagree with the political decisions of those in power, if they assiduously follow the Constitutional rules in making those decisions, my sole remedy is at the voting booth, and if I’m outvoted, so be it. If those in power choose to repeatedly ignore the Constitution, or look for ways to skirt around it (like the recent flirtation with the Slaughter Rule), then this has become no better than a third world country with a tin-horn dictator (think Hugo Chavez), and all bets on honoring the social contract are off.
March 28, 2010, 11:05 amMartinned says:
And yet the precedents they set, for example about the President’s independent power to interpret the constitution, still stand.
March 28, 2010, 11:06 amMLS says:
Consitutional “concerns” aside, has anyone as yet found a real, honest to goodness disparity between the US position contained in the current incarnation of the ACTA draft and subsisting US law?
If so, then perhaps there is a real issue lurking here that would benefit from further discussion. Otherwise, it seems to me that most of the criticism is little more than “maybe”,”could possibly”, “might”, and other words of similar ilk.
March 28, 2010, 5:13 pmAndyM says:
Traditionally, it’s been the democrats that are owned by the record companies and movie studios, and thus the democrats that heavily back expansions of copyright.
McCain might well have done equally bad things, but he’d have done them for his donors, not for a group that tilts heavily democrat…
March 29, 2010, 2:39 pmTechnically Legal » Blog Archive » Episode 43: Never Get Involved in an Internet War in Asia says:
[...] Is ACTA Constitutional Full ACTA Leak Online Is the Anti-Counterfeiting Trade Agreement Unconstitutional? [...]
March 29, 2010, 11:03 pmJess says:
The problem with this lies in the Health Care bill. Obama wanted the bill, so he got it into Congress. The executive branch has wanted this treaty for years, so eventually it will sneak it’s nasty little head into Congress too. Eventually in this game of “let’s pretend” somebody is going to really get hurt and it won’t be the big studios and record companies that are backing this little project while robbing the public and their own artist’s blind. It’ll be the little guys, you and me and the indie musician down the street who gives away his music on Limewire or Pirate Bay just to get his name out there. This is one giant leap for Corporate and Capitalist America.
May 9, 2010, 8:35 pmSome serious biz - Android Forums says:
[...] Trade Agreement | Security Management Stop the anti-counterfeiting trade agreement – The Inquirer The Volokh Conspiracy Is the Anti-Counterfeiting Trade Agreement Unconstitutional? Anti-Counterfeiting Trade Agreement | Electronic Frontier Foundation And finally: What is ACTA and [...]
August 23, 2010, 4:50 am