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

Fri, Sep 30th 2011 1:43pm — Mike Masnick

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.

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Filed Under: acta, constitution, copyright, executive agreement

56 Comments

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Anonymous Coward, 30 Sep 2011 @ 1:59pm

ugh

why am i not surprised?
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Anonymous Coward, 30 Sep 2011 @ 2:01pm

Mike, you can keep stating the same thing over and over again, but it won't change reality. It seems to be a day after day thing now, sort of a death watch every time you get upset about something.

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.
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john b, 30 Sep 2011 @ 2:04pm

Constitutional arguments aside, the key thing to remember is that other countries don't need to care whether the US has ratified it. Under prevailing norms of international law, as well as under the Vienna Convention on treaties (which the US has ratified), if the executive of a country or his delegate signs an instrument, that country is bound (unless the treaty itself actually specifies that a signature doesn't bind the country until ratification).

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.)
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Spaceboy (profile), 30 Sep 2011 @ 2:08pm

Re:
You mad bro?
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Jay (profile), 30 Sep 2011 @ 2:09pm

Re:
Ok, but who will offer up trade sanctions against the US?

Currently, it's the largest bully of copyright law by a large margin.
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James Love (profile), 30 Sep 2011 @ 2:18pm

Consistency with US law
Krista Cox and I have a note on the inconsistencies between US laws and the ACTA provisions on injunctions and damages. http://keionline.org/node/1289 I think this is directly relevant to the use of the executive agreement. But, will this matter right now, in the current political environment? There are not many in Congress or the White House who are prepared to rein in the aggressive and ham handed IPR negotiators at USTR.
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Anonymous Coward, 30 Sep 2011 @ 2:19pm

Re: Re:
Mad? Nope. Amused, almost to the point of LOL. It's funny has heck to see Mike wet his manties when things like this happen.
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Chris Rhodes (profile), 30 Sep 2011 @ 2:23pm

What?!
You mean Obama seizes more power and gives a middle finger to both the constitution and the intended role of Congress? Shocking!

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!
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DH's Love Child (profile), 30 Sep 2011 @ 2:26pm

Re:
Um, except in your analogy, if the com[any can prove that the contract was signed outside of the CEO's authority, it would invalidate the contract. Otherwise, anyone with 'signing authority' for a company could put them on the hook. That's why comapnies have limit's on employees' signing authority to begin with.

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.
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PlagueSD (profile), 30 Sep 2011 @ 2:28pm

Re: 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!

Didn't George W. do that already with Iraq?
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Anonymous Coward, 30 Sep 2011 @ 2:37pm

If Obama is re-elected, who wants to place bets on whether he double-speaks his way into a third term in 2016? This guy is becoming more of a dictator every day.
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Anonymous Coward, 30 Sep 2011 @ 2:40pm

Re: Consistency with US law
There are not many in Congress or the White House who are prepared to rein in the aggressive and ham handed IPR negotiators at USTR.
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?
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The Incoherent One (profile), 30 Sep 2011 @ 2:42pm

Re: Re: What?!
Bush was so 2008 man. We get bash the new guy now.
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Anonymous Coward, 30 Sep 2011 @ 2:42pm

Re: Re: Re:
Acts of copyright infringement won't decline though, so who really wins?
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Ryan, 30 Sep 2011 @ 2:42pm

Response to: Anonymous Coward on Sep 30th, 2011 @ 2:01pm
What does it matter which side 'wins' or 'loses' when speaking about the constitution? No matter which side is doing something unconstitutional, we all lose. Its no wonder this country is going down the tubes. There are too many voters in this country, like you, who can't think for themselves. Ugh...

Thanks, Mike, for making people aware of this issue.
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Anonymous Coward, 30 Sep 2011 @ 2:44pm

Re:
The Vienna convention on treaties has not been ratified by the senate.

Source: http://www.state.gov/s/l/treaty/faqs/70139.htm
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anonymous, 30 Sep 2011 @ 2:48pm

sure Obama must be related to Sarkosy. he's another jumped up dictator that does as he wants, not as he is elected to do. could be that there are 2 people that dont get back into power at the next respective elections.
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Chris Rhodes (profile), 30 Sep 2011 @ 2:50pm

Re: Re: What?!
Stupid as it was, congress approved the use of military forces in Iraq. Obama skipped that step, and now claims he doesn't need their approval at all.
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B, 30 Sep 2011 @ 2:51pm

Ads
The ads are coming up when trying to use the scroll bar; extra annoying.Oh well, back to the mobile site.
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Ryan, 30 Sep 2011 @ 2:52pm

Re: Re: What?!
Wow...wasn't a Bush fanatic, but again, I can't let the stupidity go. Bush had the approval of congress to go into Iraq, though many, after the fact, say they wish they hadn't given the approval.

I can't believe some of you are allowed to vote...
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Anonymous Coward, 30 Sep 2011 @ 2:56pm

Re:
It's always sad when the right side loses.

And even sadder when idiots like you cheer the unconsitutional power grabs that ultimatly will damage the republic beyond repair.
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Anonymous Coward, 30 Sep 2011 @ 2:56pm

Re: Re: What?!
Pretty sure he had congressional approval.
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Anonymous Coward, 30 Sep 2011 @ 3:02pm

Superfluous only
"without no congressional authorization" can't be the way I read it. The government spinning at work and eating its own tail.
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Anonymous Coward, 30 Sep 2011 @ 3:06pm

Re:
Countries violate treatise all the time. The U.S. is no exception. and who's going to punish the U.S. for violating a treaty and how?
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Anonymous Coward, 30 Sep 2011 @ 3:07pm

White House Petition
Just thought people who feel strongly about this issue should know there is a petition on whitehouse.gov dealing with ACTA.

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'
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Dizgrunt, 30 Sep 2011 @ 3:30pm

Re: Re: What?!
With overwhelming congressional approval, wouldn't still be there without it. Blame him all you want but there is only so much a prez, past or present, can do or should be able to do by the constitution.
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McCrea (profile), 30 Sep 2011 @ 4:29pm

Double negatives are unconstitutional
"legally binding the US to a trade agreement without no congressional authorization"

"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.
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Anonymous Coward, 30 Sep 2011 @ 4:34pm

Re: Re: What?!
No, but you keep revising history the way you want. Obama is doing it NOW but that's OK with you too. Stinking Liberal Extremest.
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Anonymous Coward, 30 Sep 2011 @ 4:48pm

Someone needs to go to Skool
"legally binding the US to a trade agreement without no congressional authorization"

We don't needs no Congress's authorataay!
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Anonymous Coward, 30 Sep 2011 @ 4:54pm

Re: Re:
This is a complete list as appears of the site you link:

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.
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Anonymous Coward, 30 Sep 2011 @ 5:26pm

Re: Re:
And the "power grab" is unconstitutional because....?

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.
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Anonymous Coward, 30 Sep 2011 @ 5:30pm

Re: What?!
Oh look, a dumbass Tea Bagger who can't resist going "political" on a site that works pretty hard to not take sides in that manner.

You are truly a dumbass.
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Spaceboy (profile), 30 Sep 2011 @ 6:31pm

Re: Re: Re:
You are taking this awful personally.
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Sean Flynn, 30 Sep 2011 @ 6:40pm

Re: This post has it right
This comment gets it right. The problem is that: (1) the constitution requires Congress to approve international agreements in its area of competence (defined in Article I), including "foreign commerce" (i.e. trade) and intellectual property (2) international law does not care what our constitution says -- the president can bind unilaterally if, essentially, he says he can. It does not matter than we have not ratified the Vienna Convention because this is customary international law (the common law of nations). So ACTA can bind the US under international law even though it cannot bind US courts.

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.
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Anonymous Coward, 30 Sep 2011 @ 6:45pm

Re: Re: Re:
"And the "power grab" is unconstitutional because....?"

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'?
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Anonymous Coward, 30 Sep 2011 @ 7:16pm

Re: White House Petition
If online petitions actually worked, they would've been taken off (or at least been converted into elaborate sting operations) by now.
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Anonymous Coward, 30 Sep 2011 @ 7:23pm

Re:
Who's the real loser at life: the man whose rights are being trampled on by the elite's cloven hooves or the fat little suck-up who spends his life trolling a blog?
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Anonymous Coward, 30 Sep 2011 @ 7:31pm

Re: Re: Re: Re:
"If Obama were signing a treaty opposing ..."

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.
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Michael, 30 Sep 2011 @ 9:05pm

Re:
Its actually a short term win for a few groups, and a long term loss for consumers.Since consumers are where the money comes from, the few who profit from this will eventually fail as well.
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James Love (profile), 1 Oct 2011 @ 1:20am

Re: Re: Consistency with US law
USTR is part of the White House. There are other parts too. In the inter-agency review, USPTO, Library of Congress Copyright Office, Department of Commerce and many other agencies participate, as well as other parts of the WH. Stan McCoy is strong personality, and he pushes, hard, for certain things. There is not that much push back from other non-USTR actors in the review process. Well, at one point, in ACTA, other agencies insisted that USTR push the EU harder to remove patents from the civil enforcement provisions, and that happened. This was partly due to the provisions in the Health Reform Legislation that eliminate injunctions and limited damages for certain patent infringements, plus things like the limits on remedies for infringements by doctors. But USTR has put even worst provisions into the TPPA, without much pushback from the same agencies that wanted patents out of ACTA.
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Prisoner 201, 1 Oct 2011 @ 2:00am

Re: Re: Re: Re: Re:
Well put.
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Anonymous, 1 Oct 2011 @ 6:45am

Not a Signing Statement
This isn't a signing statement. A signing statement only occurs on bills sent to the president for his signature. What you are trying to say is this is "like" a signing statement. The technical name for the president's action is a parallel unilateral policy declaration.
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Anonymous Coward, 1 Oct 2011 @ 7:38am

Response to: Anonymous Coward on Sep 30th, 2011 @ 2:01pm
Yeah Mike! How dare you have the integrity to stand up for a position knowing it's going to loose[citation needed]? Gutless cowardice would be much preferred[by who?]!
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JohnFx (profile), 1 Oct 2011 @ 8:14am

Re: Re: What?!
Your grasp on recent history is a little shaky. GW sought and received congressional approval for the invasion of Iraq and even got the support of many (but not the majority) of Democrats.

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.
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Jay (profile), 1 Oct 2011 @ 9:36am

Re: Re: Re: Consistency with US law
It is very difficult to push back against the USTR. They've had 20 years experience with TRIPS and IP bullying.

I would think the GAO would have some leverage if only there were legislation to give them that.
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Stephen Pollei, 1 Oct 2011 @ 12:32pm

whitehouse petition
https://wwws.whitehouse.gov/petitions/!/petition/require-senate-ratify-acta-treaty-rather-making-it- effective-executive-order/HCfv4gNK currently has 343 signatures... needs 4,657 to reach the 5,000 threshold.
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Just another Amerikan, 1 Oct 2011 @ 1:20pm

Re:
So, according to John B, the US President does not have to follow the Constitution or any US laws when it comes to international matters? That�s funny; I thought that the President had to say some kind of oath affirming that he will PRESERVE, PROTECT, and DEFEND the Constitution of the United States. However, this explains why the President can execute an American citizen with a drone strike in Yemen for simply exercising his right to free speech. This has become a very scary country under Obama. Exercise your right to free speech as long as you say what his party wants you to say, question him or speak out against him and you will be executed without due process. Just like the Affordable Care Act showed, there is no longer a need to follow the US Constitution. The President can do whatever he wants, whenever he wants. Execute as many Americans as he pleases, enter into any agreements with any country he chooses. Give away public lands to China in order to pay back debt. No man made laws can bind him, he is the Messiah. I hope the extreme left is happy with the monster that they have created. Anyone see bank stocks lately? I think it�s time for another huge bank bailout so that CEO�s can get their 30 million dollar bonuses, can�t expect them to get by on just 15 or 20 million dollars!
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Daemon_zogg, 1 Oct 2011 @ 4:27pm

Obama Administration To Use ACTA Signing Statement To Defend Why It Can Ignore The Constitution...
One step closer to communism. OH WAIT! We're ALREADY THERE! Sorry. I was temporarily blinded by the glare from the corporate lobbyists brain-washing the US congressmen and congresswomen with bribes. And promises of high-income jobs when their term is over. You remember, the ones that were supposed to represent the constituents that sort of, well you know, voted for them. I love democracy. It's the US government, I hate. };P>
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Anonymous Coward, 1 Oct 2011 @ 4:35pm

Maybe it time to start the empeachment hearings.
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Anonymous Coward, 2 Oct 2011 @ 6:44am

Re: Consistency with US law
There are not many in Congress or the White House who are prepared to rein in the aggressive and ham handed IPR negotiators at USTR.

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.
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Anonymous Coward, 2 Oct 2011 @ 7:11am

Re:
Yeah, I'll take that bet.
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Robert, 2 Oct 2011 @ 3:51pm

ACTA Info
ACTA here it is http://www.dfat.gov.au/trade/acta/.
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.
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hegemon13, 3 Oct 2011 @ 6:39am

Re: What?!
Nope, he'll just call infringers "terrorists" and put them on an assassination list.
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Chris Rhodes (profile), 3 Oct 2011 @ 9:08am

Re: Re: What?!
Mentioning something bad that Obama did makes me a "teabagger", who "takes sides"? Under your theory, no one would ever be able to criticize the president.

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.
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Anonymous Coward, 3 Oct 2011 @ 10:45am

Correlary to Ben's comment on security....
The Political side.

Those who would trade their soul for political power, deserve neither and will lose both....
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Sabina Karsan, 24 Jan 2012 @ 11:36am

ACTA 2012
He took an oath an he swear to protect the consistution How can we re elect him again I am not voting for a man that lied to protect the consitution the worst case we will overcrowd the prisons if we all convicted of the same crime we should impeach Obama
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