Obama Administration To Use ACTA Signing Statement To Defend Why It Can Ignore The Constitution In Signing ACTA
from the trampling-on-the-constitution dept
While the EU, Mexico and Switzerland are apparently not yet ready to sign ACTA, a lot of others are apparently planning to sign the document this weekend, despite questions about its legality. Because of that Sean Flynn has written up an analysis suggesting that, even if the document is signed it's not clear that the treaty can actually go into effect anywhere. Whether or not that's accurate, what I wanted to focus on was a separate tidbit of info suggesting that, while the Obama administration is very much aware of the very serious Constitutional questions raised by the signing, it's going to issue a "signing statement" that defends its right to ignore the Constitution here.In the US, there is no plan to constitutionally ratify the agreement. Indeed, this will likely be the main focus of the US signing statement. The document will be an argument to Congress that the executive can pass this agreement alone – legally binding the US to a trade agreement without no congressional authorization – because, according to the Executive, ACTA is fully consistent with current US law.Thus, the administration argues that there doesn't need to be a Senate review because no laws will be changed. This is, of course, wrong, since ACTA (1) does not align itself fully with US laws and (2) massively constrains Congress's ability to change certain intellectual property laws in the future. Furthermore, this basic argument is ridiculous. The President is only allowed to sign executive agreements that cover items solely under the President's mandate. Intellectual property is not. It's clearly given to Congress under the Constitution.
Of course, I'm quite curious as to how the Administration, with Joe Biden as VP, can defend this action. After all, as well chronicled, when Joe Biden was still Senator Biden in 2002, he went ballistic against then-President George W. Bush for trying to sign an arms control agreement with Russia as an executive agreement, rather than a treaty with Senate ratification. He actually sent a letter to the President demanding that the agreement be submitted as a treaty for ratification in the Senate. The letter apparently "defend[ed] the institutional prerogatives of the Senate." Of course, if we had any real reporters out there who actually asked the administration real questions, they might question this obvious hypocrisy within the administration. But, instead, expect almost no one to cover this story.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: acta, constitution, copyright, executive agreement
Reader Comments
Subscribe: RSS
View by: Time | Thread
why am i not surprised?
[ link to this | view in chronology ]
Give it up. This is ANOTHER case where your side loses. Too bad you can't understand that it is really a long term win. Short term, well, it sucks to be you.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Response to: Anonymous Coward on Sep 30th, 2011 @ 2:01pm
Thanks, Mike, for making people aware of this issue.
[ link to this | view in chronology ]
Re:
And even sadder when idiots like you cheer the unconsitutional power grabs that ultimatly will damage the republic beyond repair.
[ link to this | view in chronology ]
Re: Re:
The issue is not as clear cut as some opponents of ACTA would have you believe, and many of the points they make are simply nonsensical.
[ link to this | view in chronology ]
Re: Re: Re:
IP is supposed to promote the progress and last a limited time. Our current laws, with continual retroactive extensions, do neither. Expanding those laws when they need to be redacted only makes the problem worse.
If Obama were signing a treaty opposing IP laws, you (Ip maximists) would be arguing that he has no such authority. You're only arguing that he has this authority because what he's signing is legislation that you want.
"and many of the points they make are simply nonsensical."
What point has MM made that's 'nonsensical'?
[ link to this | view in chronology ]
Re: Re: Re: Re:
and don't deny it either. Some of the IP maximists posting here are posing from interested law firms (as MM has exposed through his knowledge of their IP addresses, though I'm sure now many use TOR). You post here on Techdirt pretending to be critics just to make critics look bad (and get Techdirt in potential trouble with the government, who requested that such a post be removed). IP maximists contradict themselves all the time when convenient, you have no integrity and no honesty. You don't care about legal or ideological principles of following the law or what the law says, you only care about your own pockets and what's in your own personal best interests. You'll claim the law says whatever is in your best interests.
More examples of your selfish nature.
http://www.techdirt.com/articles/20100708/02510310122.shtml
http://www.techdirt.com/arti cles/20090811/0152565837.shtml
http://www.techdirt.com/articles/20091207/1201017234.shtml
and the list goes on.
The only thing consistent about the position that an IP maximist takes is that it is self interested. If one assumes self interest, all contradictions vanish. Likewise, it is reasonable to conclude that you are only taking this position now because it's in your personal interest.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Response to: Anonymous Coward on Sep 30th, 2011 @ 2:01pm
[ link to this | view in chronology ]
Here's an analogy: A CEO signs a contract to buy $105,000 worth of goods, but the company has a bylaw that says that contracts over $100,000 require board approval. Unless the CEO told the other party that, though, when the company gets taken to court it'll have to pay, even if it never approved the contract. Internal national laws, just like quirks of a company's bylaws, don't have an outside effect.
So, a US court might not be "bound" by ACTA, but internationally, the president has just bound the US to not reform copyright. If the US fails to meet its obligations on international law, other countries might take trade sanctions against it, etc--there could be real, practical consequences.
(Under the reasoning of ACTA supporters, ACTA is basically a legal nullity from a US perspective, and the president can sign whatever legal nullities he wants. But again the important point is the international perspective, not the US's internal legal affairs.)
[ link to this | view in chronology ]
Re:
Currently, it's the largest bully of copyright law by a large margin.
[ link to this | view in chronology ]
Re:
Back to the point, if the president signs this AND it is clearly outside his mandate (as it appears) then Congress could very well tell the rest of the world "Too bad" and choose to not abide by it. My guess is that this would have to go before someone like the ITF for enforecement.
[ link to this | view in chronology ]
Re:
Source: http://www.state.gov/s/l/treaty/faqs/70139.htm
[ link to this | view in chronology ]
Re: Re:
http://www.state.gov/s/l/treaty/pending/index.htm
Treaty Doc. 106-1 is interesting given that it was signed by the US in the mid-50s, sent to the Senate in 1999, and still remains pending.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: This post has it right
What would keep it from binding is if the signing statement says something like "We love this agreement. We aspire to it. It is based on US law. But it cannot bind the US until it is ratified by Congress and I have no intention of sending it to congress." But that is not likely. What he will sat is a new claim -- I can bind the US to any agreement that I say does not change US law.
To Jamie's point, it does not actually matter on the constitutional issue whether or not ACTA does in fact comply with US law. The president cannot unilaterally bind the US to international agreements pledging to keep US law the same without congressional approval. FTAs have to be passed by Congress even if they don't change US law.
So they are wrong twice: ACTA is not fully consistent with US law; regardless it is unconstitutional to bind the US to it without congressional consent. And the kicker is: the president CAN in fact bind the US to the agreement without congressional consent (under international law).
Where is the (old) Biden when you need him.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Consistency with US law
[ link to this | view in chronology ]
Re: Consistency with US law
You make it sound like the USTR's men are a bunch of maverick's acting on their own intiative, instead of the WH's. Is that how things are?
[ link to this | view in chronology ]
Re: Re: Consistency with US law
[ link to this | view in chronology ]
Re: Re: Re: Consistency with US law
I would think the GAO would have some leverage if only there were legislation to give them that.
[ link to this | view in chronology ]
Re: Consistency with US law
James, I don't think there are ANY meaningful voices who are carrying that message in the White House or Congress. McLaughlin is gone and was always looked at cock-eyed due to his Google pedigree. Wyden and Lofgren have no particular gravitas. There's a little pushback at Commerce and State but the momentum is pretty clear.
[ link to this | view in chronology ]
What?!
Next thing you know, he'll be claiming he can bomb anyone in the world for as long as he likes without any congressional oversight!
[ link to this | view in chronology ]
Re: What?!
Didn't George W. do that already with Iraq?
[ link to this | view in chronology ]
Re: Re: What?!
[ link to this | view in chronology ]
Re: Re: What?!
[ link to this | view in chronology ]
Re: Re: What?!
I can't believe some of you are allowed to vote...
[ link to this | view in chronology ]
Re: Re: What?!
[ link to this | view in chronology ]
Re: Re: What?!
[ link to this | view in chronology ]
Re: Re: What?!
[ link to this | view in chronology ]
Re: Re: What?!
It wasn't even a close vote. In case you want to look it up it was SJ Res. 45 and HJ Res 114, voted on in 2002.
[ link to this | view in chronology ]
Re: What?!
You are truly a dumbass.
[ link to this | view in chronology ]
Re: Re: What?!
Here's a hint, moron: Obama is just the latest in a long line of shitty authoritarian presidents that stretches back as far as the eye can see.
[ link to this | view in chronology ]
Re: What?!
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Ads
[ link to this | view in chronology ]
Superfluous only
[ link to this | view in chronology ]
White House Petition
If you didn't know about the feature at the White House website, you can create and sign petitions. Enough signatures and the administration will release a statement concerning the petition, and their reasoning for agreeing or disagreeing with the petition.
The section is called 'We the People'
[ link to this | view in chronology ]
Re: White House Petition
[ link to this | view in chronology ]
Double negatives are unconstitutional
"Without no"? One of the terms which is the opposite of both "without any" and "with no"?
So, strickly speaking, that means "legally binding the US to a trade agreement with congressional authorization" ... which does not seem to be the issue described by Mike, et alia.
I've perused Techdirt for years, and this is the first time I've been compelled to go grammar-nazi. I hope my digression is more excusable than this error.
[ link to this | view in chronology ]
Someone needs to go to Skool
We don't needs no Congress's authorataay!
[ link to this | view in chronology ]
Not a Signing Statement
[ link to this | view in chronology ]
whitehouse petition
[ link to this | view in chronology ]
Obama Administration To Use ACTA Signing Statement To Defend Why It Can Ignore The Constitution...
[ link to this | view in chronology ]
[ link to this | view in chronology ]
ACTA Info
Whilst the US seems secretive about it, the information is readily available at other locations. It seems to have been considerably watered down from what it was before.
[ link to this | view in chronology ]
Correlary to Ben's comment on security....
Those who would trade their soul for political power, deserve neither and will lose both....
[ link to this | view in chronology ]
ACTA 2012
[ link to this | view in chronology ]