If ACTA Is Approved In The US, It May Open The Door For The President To Regularly Ignore Congress On International Agreements

from the bad-news dept

Tue, Aug 30th 2011 3:34am — Mike Masnick

On of the sneakier parts of ACTA is that the White House has insisted from the beginning that the document is not a binding treaty. Instead, it insists that ACTA is merely an "executive agreement." Of course, the only real difference is that an executive agreement doesn't require the Senate to ratify it. Basically, the US is calling it an executive agreement so that the administration can sign on without any oversight or scrutiny on the treaty. The Europeans, in the meantime, never got the "ix-nay on the inding-bay eaty-tray" notice from the US folks, and have been happily declaring ACTA a binding treaty as it clearly is.

However, many legal experts have noted that this raises serious constitutional questions, as the Constitution simply does not allow this kind of agreement to be signed without Senate approval. Amusingly, Senator Biden -- back during the previous administration -- was one of the leading voices in trying to prevent President Bush from signing an "executive agreement" with Russia, without getting Senate approval. One wonders if he's magically changed his mind.

However, more and more people are getting concerned about this breach of the Constitution. James Love points us to a new paper at the American Society for International Law by Oona A. Hathaway and Amy Kapczynski, which worries about the precedent this will set if Obama signs it as an executive agreement and bypasses the Senate entirely.

No comparable agreement has been concluded in this way. Thus if concluded as a sole executive agreement, it would represent a significant expansion of the scope of such agreements. As a result, it could pave the way for more extensive use of sole executive agreements in the future. That, in turn, could have implications for the nature of democratic control over international legal agreements concluded by the United States, as well as the legitimacy of these agreements both at home and abroad.

Furthermore, the report notes that it does not seem Constitutional for the President to sign such a document as an executive agreement. The only things that can be signed as an executive agreement are things that are solely under the President's mandate. But intellectual property laws are clearly afforded to Congress and not the President under the Constitution -- meaning that he has no authority to sign this document without it first being approved by the Senate. The report notes that President Bush also tried to expand executive agreements, and ACTA would be a massive expansion in what could be covered under such agreements, taking away tremendous authority and oversight from Congress.

Setting a precedent for more expansive use of sole executive agreements has consequences not only for intellectual property law, but for any area in which an international agreement may be concluded�which is to say, nearly any area of law. International law now reaches into almost every aspect of our day-to-day lives. The possibility that such legal commitments could be made by the President without the input, much less approval, of Congress or the public raises serious questions about the potential of these agreements to undermine democratic lawmaking writ large

This is pretty troubling for a variety of different reasons, and it seems like Congress itself should be pretty concerned about this attempt to take away its oversight on international agreements.

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Filed Under: acta, constitution, executive agreement, lobbyists, treaty

42 Comments

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anonymous, 30 Aug 2011 @ 4:00am

and does anyone think that Congress will do anything other than agree with this? i doubt it. they all want an easy life whereby they can ignore/take notice of who/what they want, when they want. representing the people? no way! for everything else, there's 'incentives'!
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Ben (profile), 30 Aug 2011 @ 4:02am

Re:
Agreed. Congress and the president just go with the loudest lobbyist surely?
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Planespotter (profile), 30 Aug 2011 @ 5:19am

Re: Re:
But at least they will have done it "properly".
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Anonymous Coward, 30 Aug 2011 @ 5:23am

C- for the FUD.

Try "ACTA will provide gateway to US dictator" next time. That will net you a B+ at least.

Oh and don't worry, all my brilliant prose is covered by Creative Commons and anyone can use and copyright it in a book they sell.

:)
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The eejit (profile), 30 Aug 2011 @ 5:27am

Re:
Well, seeing as the US thinks it's the world's police force....What, precisely, would make this FUD?
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The Logician (profile), 30 Aug 2011 @ 5:27am

Re:
Considering you provide no evidence of your own to back up your statement, it is you who are mistaken, AC #4. Your argument, therefore, is invalid.
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Anonymous Coward, 30 Aug 2011 @ 5:40am

Anti Consumer /act is a piece of dirty toilet paper.Little by little we lose our rights and are forced into laws none of us want but the rich leeches.
And one of these days there will be some kind of uprising.......all Empires have their rise and their fall.
Those in power will get just what is coming to them.
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Anonymous Coward, 30 Aug 2011 @ 5:51am

Police State
An influential part of the US entertainment industry will never be satisfied until the USA is turned into a police state, with them as the beneficiaries. They have been making pretty fast progress lately. The last Republican administration (Bush & Co.) oversaw a vast increase in the expenditure on secret security bureaucracies. That is where a lot of the persistent huge US federal deficit came from. That can only ultimately be paid for by printing money, more taxes or cutting expenditure elsewhere. The effect on the US economy is now and will continue to be dire. Police states are invariably economic basket cases. You Americans are heading towards being a lot poorer, with an out-of-control federal government. Is there any sign that the slide towards a police state is even being talked about in Congress?
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Scooters (profile), 30 Aug 2011 @ 6:12am

I love Techdirt, but...
... if I see any more of this...
"One wonders if he's [Biden] magically changed his mind."

...I'm going to be upset. There's no reason to make stuff up, such as Biden having a mind.

*snickers
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bratwurzt (profile), 30 Aug 2011 @ 6:20am

Re:
Where is that Troll button?? Urge to push the Troll Button...
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The eejit (profile), 30 Aug 2011 @ 6:21am

Re: I love Techdirt, but...
OF course Biden doesn't have a mind. If he did, he wouldn't be in government.
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Anonymous Coward, 30 Aug 2011 @ 6:23am

Congressional Job Approval Ties Historic Low of 13%
Gallup Poll: Congressional Job Approval Ties Historic Low of 13%

Disapproval rating of 84% highest in Gallup annals

Americans' evaluation of the job Congress is doing is the worst Gallup has ever measured, with 13% approving, tying the all-time low measured in December 2010. Disapproval of Congress is at 84%, a percentage point higher than last December's previous high rating.

These results are based on an Aug. 11-14 Gallup poll.
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Anonymous Coward, 30 Aug 2011 @ 6:27am

Re:
I believe you are being sarcastic, but just in case:

"...all my brilliant prose is covered by Creative Commons and anyone can use and copyright it in a book they sell."

Depends. If you use CC-NC, they can't if they intend to sell the book (or whatever). Also, uh, they can't copyright something that's covered by copyright already (I think).
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Anonymous Coward, 30 Aug 2011 @ 7:33am

Troubling
Are we back to "troubling" again? Oh Mike, any more half truths you would like to run with?
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Anonymous Coward, 30 Aug 2011 @ 7:40am

Re: Re:
I'm fairly certain you can't copyright something that is someone else's at all, regardless of whether they put it in the public domain, have a DWTFYL license, or what have you.
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AC, 30 Aug 2011 @ 8:13am

Re: Congressional Job Approval Ties Historic Low of 13%
Congress has always had a low approval rating. And while it's the lowest it has ever been, people generally have much higher approval rating of their own congressman. As long as the majority of the people in a district approve of their representative, they'll keep getting elected.
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CarlWeathersForPres, 30 Aug 2011 @ 8:15am

How do you enforce an international treaty that is not US law (ratified by the senate)? This is like all those times that the executive branch agreed to CO2 protocols, but nothing came from it because there was nothing that was put into law. Sure, Obama can clamor on that he accepted it, but without approval from the Senate it's a non-starter.
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Krusty, 30 Aug 2011 @ 8:17am

Re: Re:
"Congress and the president just go with the lobbyist with the most cash surely?"

There fixed it for you.
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Krusty, 30 Aug 2011 @ 8:20am

Re: Re:
"Well, seeing as the US GOVERNMENT thinks it's the world's police force"

There fixed it for you.
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Almost Anonymous (profile), 30 Aug 2011 @ 8:37am

Re:
I'm going to give you the benefit of the doubt and assume you are not trolling.

"""How do you enforce an international treaty that is not US law (ratified by the senate)?"""

By pointing to our international allies' laws and saying, "We have to strengthen our laws to enforce our international obligations!" The whole ACTA debate is a reverse-engineering scenario... lay down the groundwork in OTHER countries, thus ensuring that we have to "catch up" to their standards.

It's actually a pretty funny situation: everyone sees it for exactly what it is, but all the ACTA supporters smile and lie through their teeth about it, and almost never get called on it, with Mike being one of the single big exceptions.

Ask yourself this: why are the supporters so darn interested in getting it passed in other countries if it will never have any effect on the US? After all, it's not binding...
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ethorad (profile), 30 Aug 2011 @ 8:57am

Why democracies fail?
Reminds me of the quote attributed to Alexander Tytler:

A democracy cannot exist as a permanent form of government. It can only exist until the majority discovers it can vote itself largess out of the public treasury. After that, the majority always votes for the candidate promising the most benefits with the result the democracy collapses because of the loose fiscal policy ensuing, always to be followed by a dictatorship, then a monarchy.

Although I guess in this case it's not so much an violent collapse into dictatorship but a slow sidestepping of the democratic process due to:
- the desire for lobbyists to have to swing fewer people in order to vote themselves largess
- the desire for leaders to have more power (and what presidential candidate doesn't have a degree of megalomania)

After all, if I understand it correctly Executive Agreements should only include items that the president has power over, such as foreign policy. However foreign policy arguably includes defining the national interest - and defining the national interest seems an incredibly broad brush.

Things that could be in the national interest, according to the president and/or presidential lobbyists:
- stronger IP laws
- weaker military contractor laws
- president to be succeeded by eldest son
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Anonymous Coward, 30 Aug 2011 @ 9:02am

Re: Re:
It still doesn't explain how the President will suddenly have huge new powers over the Senate on these issues. No matter the phrasing, it still requires the Senate to ratify treaties, does it not?
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The eejit (profile), 30 Aug 2011 @ 9:04am

Re: Troubling
How about the one where Michele Bachmann says that North Carolina deserved to get assmugged by Irene? Or the one where Eric Cantor says he doesn't want any federal disaster funding because "Obama did it!"?
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Bergman (profile), 30 Aug 2011 @ 9:51am

If I come into your home, shoot you, and take all your property, I would be a criminal. I would not be setting a precedent for a novel form of purchasing property.

The same is true of presidents.
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DH's Love Child (profile), 30 Aug 2011 @ 10:03am

Re: Re: Congressional Job Approval Ties Historic Low of 13%
You need to read the article. The majority of people also disapprove of their own representatives.
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Someantimalwareguy, 30 Aug 2011 @ 10:31am

Re: Re: Congressional Job Approval Ties Historic Low of 13%
...As long as the majority of the people in a district approve of their representative, they'll keep getting elected.
While I am certain there is a great deal of this, also note that local elections are usually skewed towards the incumbent; or at least to the people greasing the palms of those who count in the district.

Add on top of that the two major party's ability to game the redistricting and you get what we have now. Elections are not about voting for the right man/woman for the job; rather it is about electing one of the gang who has risen to be the "next one" in line for a shot at the brass ring and who has the deepest pockets behind them...
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BBT, 30 Aug 2011 @ 10:38am

This seems like a good thing
Doesn't this just mean that as soon as they try to enforce this, a lawsuit will be filed and ACTA will be struck down by the Supreme Court?
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Chosen Reject (profile), 30 Aug 2011 @ 11:01am

Re:
While I agree with you, the problem is the idiots that get ousted during the fall of an empire, or not always that idiots that created it. So while it may be nice to console yourself that an empire will eventually fall, many of those responsible for creating and perpetuating that empire will have long since passed away peacefully, and many people who are crushed by that empire will pass away in suffering. So you get a relative few empire builders/perpetuators that are crushed, and a relative few empire crushers who find relief. That's why it takes eternal vigilance to keep yourself from being crushed by an empire. But too many people willingly suffer it because they have their bread and circuses.
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Rekrul, 30 Aug 2011 @ 11:24am

Re: Re: Re:
The king can do anything he wants...
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MrWilson, 30 Aug 2011 @ 11:24am

Re:
I see you are studying from the Troll Manual.

Lesson 5 from the Troll Manual:

"If you can't actually argue with the content of the post to which you are replying, just call it FUD without explaining why it's FUD or refuting any arguments whatsoever. Throw in a parody of the author's style of writing for extra zing. If you have mastered this lesson, congratulations! You are well on your way to first class trolling."
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E. Zachary Knight (profile), 30 Aug 2011 @ 11:32am

Re:
However, if government thugs (police) come into your home and take all your property, it is called civil forfeiture and is completely legal.

So yes, the President can steal your stuff and get away with it.
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Anonymous Coward, 30 Aug 2011 @ 12:14pm

Governor Tarkin: The Imperial Senate will no longer be of any concern to us. I have just received word that the Emperor has dissolved the council permanently. The last remnants of the Old Republic have been swept away.
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Squid Lips, 30 Aug 2011 @ 1:30pm

Once again, the leadership of the World today never ceases to amaze me...

It's almost insulting, but than I remember that 80% of the people are idiots as well, so getting away with these kinds of shinanigans is almost guaranteed.

Part of me wishes it would all implode on itself so we can have a nice clean government refresh... than again, I don't trust anybody to go a good job with that either.
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Jose_X, 30 Aug 2011 @ 1:38pm

Hope.. it's doomed to fail
I hope not following procedures might be a good thing for something so crappy.

On the other hand, I hope the subject line is not wrong about hope.
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Almost Anonymous (profile), 30 Aug 2011 @ 1:50pm

Re: Re: Re:
"""No matter the phrasing, it still requires the Senate to ratify treaties, does it not?"""

Q: When is a treaty not a treaty?

A: When it is an executive order!

Ok, so lacking in humor maybe, but this is the exact mindset that the Administration is using. So the answer to your question is: no, ratification by the Senate is not necessary for an Executive Order.
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Anonymous Coward, 30 Aug 2011 @ 2:22pm

Re: Re: Re:
It just sets a precedent and re-defines what a 'treaty' really is....

As Clinton said, "It depends on what the meaning of the words 'is' is."

Or as Obama is basically saying by claiming that ACTA is an 'executive agreement', "It depends on what the meaning of the word 'treaty' is."

Re-defining the terms after an agreement is generally not an acceptable in business, unless you are the US Government (or part of the Entertainment).....
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PrometheeFeu (profile), 30 Aug 2011 @ 2:50pm

I would imagine if the treaty was not ratified, it is not binding in the US. What ratification means is that the treaty is incorporated into domestic law. That is the way a treaty can become binding. If ACTA was signed as an executive agreement, it is not binding in the US by definition. It might be binding in Europe is they ratify it.
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lucidrenegade (profile), 30 Aug 2011 @ 4:12pm

Re: Police State
"An influential part of the US entertainment industry will never be satisfied until the USA is turned into a police state, with them as the beneficiaries."

This is the really sad part. A Corporatocracy controlled by the entertainment industry? Really?
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lucidrenegade (profile), 30 Aug 2011 @ 4:17pm

Re: Re: Re:
Until it's successfully challenged in court, the President can do whatever he wants. Unfortunately, that rarely seems to happen.
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AC, 30 Aug 2011 @ 8:43pm

Re: Re: Re: Congressional Job Approval Ties Historic Low of 13%
Just re-read, and I didn't see that in the article. If you click on the first link in the story, it does mention that the people who would re-elect their representative has dropped from 57% to 54%.

The link is 3-weeks old, and the new poll may have showed different numbers, but I didn't see them in the article.
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ethorad (profile), 31 Aug 2011 @ 6:18am

Re:
I thought the US had a habit of not ratifying treaties in any case? Or at least adding a caveat to say that if there is a conflict between the US constitution and a treaty then they can ignore the treaty.

And the constitution seems to get some rather varied readings ...

For example, does the right to bear arms extend to land mines and cluster bombs?
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Steve Landess (profile), 31 Aug 2011 @ 9:48am

NOT news to me...
Presidents have routinely usurped the Constitutional powers given Congress by issuing "Signing Statements", which generally indicate 'I will sign this bill into law, but I choose not to enforce it'.

Most recently, however, president Obama ("president" spelled with a small p, because I no longer have respect for the office) violated the Constitution by directing ICE to quit deporting illegal aliens unless they were convicted felons.

I worry for the future of this once-great country.
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