Is the Anti-Counterfeiting Trade Agreement Unconstitutional?

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.