Will ACTA Be Found Unconstitutional?

DustyShadow writes "Harvard's Jack Goldsmith and Lawrence Lessig have an interesting op-ed in Friday's Washington Post, arguing that it would be constitutionally dubious for President Obama to adopt the Anti-Counterfeiting Trade Agreement (ACTA) as an executive agreement. '[T]he Obama administration has suggested it will adopt the pact as a "sole executive agreement" that requires only the president's approval. ... Joining ACTA by sole executive agreement would far exceed these precedents. 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.'"

Comments

Only hope has passed...

[cbope]

I believe the only hope in passing ACTA was to keep it secret. The cat's out of the bag with the leaked and commented document. Yes, I've read it and yes it's very scary. Much of it goes way beyond countering counterfeiting and piracy.

Now that the public has access to the leaked document, hopefully a lot of people will read it, make their own conclusions, and let their representatives know how they feel about it. That's the way to defeat this. At least here in the EU, our MEP's have said wait a minute, let's take a deeper look into this.

If ACTA passes as it is today, we are all going to be screwed. Keep up the pressure on your elected representatives.

Re:Only hope has passed...

[flyneye]

I wrote my senators and congressman. It took 5 minutes of my time using copy/paste after I wrote the first one.
Finding their contact pages was easily googled , just put in the term" [your state here without brackets] senators" and another "[your state here without brackets] congressional district map" should get you there. Bookmark for future reference. Without any input from people, these clowns will pretty much do whatevers convenient for them at the time. Speak up and be heard, they are your voice and this is your interface for representation.
If you do nothing or maintain and spread the false attitude that your opinion won't be heard, you have no right to complain about your government.
Your message may not be personally read, but the information is used like poll info to let them know what their constituents are thinking.
Get on with it, pull up a tab and DO IT NOW!

The Constitution

[MindlessAutomata]

Appeals to the Constitution are not necessary. Modern political thought is wishy-washy on the Constitution--it's something to trot out as a convenience if it agrees with you, but also safely ignored if the Constitution runs contrary to your agenda. And, hell, whose to say you can't just reinterpret it through a postmodern perspective (as a "living document")?

The sheer amount of 5-4 decisions on the court should indicate that the court makes political decisions, and not merely informed, unbiased interpretations of law. The fears, wants, desires, and agendas of the judges affect constitution rules moreso than whatever the constitution itself says.

Re:The Constitution

[tm2b]

The sheer amount of 5-4 decisions on the court should indicate that the court makes political decisions, and not merely informed, unbiased interpretations of law.

Not really. It just suggests that cases where the law is clear (and thus would have larger majorities) don't tend to make it to the Supreme Court.

Re:Uh, isn't that covered in the constitution alre

[betterunixthanunix]

It is not being called a "treaty" because then the senate would have to vote on it, giving the American public a small window of opportunity to review it and decide whether or not we want it. Copyright lobbyists know that would be bad news for them, since they have not yet convinced the American public that their business interests are more important than our rights and freedoms (but they are working on that -- brainwashing schoolchildren and all), so they convinced their friends in the White House to sidestep democracy. Really, these people have no interest in freedom or democracy, unless it applies to them and their business; when it is inconvenient, they are quick to abandon it.

What is scary is that we have a president who stands with them on it.

Re:Uh, isn't that covered in the constitution alre

[MindlessAutomata]

How is a "police action" (a la Vietnam) not a war? Hairsplitting and semantic quibblings go far in the world of politics. After all, nobody is more powerful than the politicians and courts themselves to challenge them, and so long as they give themselves the appearance of expertise and authority political consensus can do whatever the hell it wants.

Re:The people's will

[betterunixthanunix]

"Obama won the election and represents the will of the people. He can do what he wants. That's democracy."

No, that is not how American government works. The president is elected to oversee the implementation of bills passed by Congress, that is all -- presidents do not create laws, nor do they unilaterally decide that the US should sign a treaty. What Obama is doing is sidestepping America's democracy, so that Biden's friends in Hollywood can get what they want.

Re:It will be against many Constitutions

[DoofusOfDeath]

When do executive politicians learn that we life in a democracy?

When electorates stop voting in narcissistic psychopaths and megalomaniacs?

The Living Constitution

[Coolhand2120]

Didn't we just pass legislation that for the first time forces private citizens to buy a product from a select set of other private citizens. The constitution is no longer relevant to the party in control of our government. They have deemed it something that can be reinterpreted to mean whatever they need it to mean at the time. All they need to do is redefine what words mean and suddenly the constitution means all sorts of things!

Here's a few examples:

1895: Wage is now the same as income! Democrats begin their long march towards socialism! With the help of the Socialist Labor Party of the 1890's, they pass an amendment so they can now collect income tax from everyone! The sucking noise begins.

1935: Now retirement and health care are a RIGHT and the government is required to provide for the "happiness" of the people by collecting money from one group of people and giving it to another. Democrats, unhappy with the difficulty of getting constitutional amendments, so they decide to craft laws that skirt the letter of the constitution, arguing that social security/medicare is an retirement benefit to the people, while arguing to the SCOTUS that it is a tax. When the SCOTUS rules the initial law unconstitutional, democrat FDR runs personal smear campaigns against SCOTUS justices and has them replaced with justices that are willing to interpret the constitution the way he needs it. And thus begins the largest ponzi scheme in world history!.

begin rant:
The government then took from the ponzi err. social security fund as frequently as pleased to and for whatever reason it deemed important enough to do so. Which was of course any reason. Now, were this a REAL business, at this point the CFO would be thrown in jail, but this is the U.S. government! They buy the jails! Social security has been bankrupt for decades, the debt is around 17 trillion. But this week, for the first time, even on paper, the government is giving out more money in social security than it is taking in..

I ask you, if the government can force you to buy something from someone, is there anything there anything the government can't force you to buy? And if the government can arbitrarily come in and tell me what I must buy, what I can buy, and what I can't buy, can we truly say we live in a free society?

And for you fools in control. What makes you think the next generation is going to pay any attention to the laws you so haphazardly pass when you completely ignore the laws of the previous generations? That's anarchy! :end rant

I would be remiss to point out that Thomas Jefferson was like a fricking Nostradamus in predicting what would happen in this country. And how can I possibly follow the words of Jefferson with my pathetic waxing? So adieu!

The democracy will cease to exist when you take away from those who are willing to work and give to those who would not.
-Thomas Jefferson

Sometimes it is said that man cannot be trusted with the government of himself. Can he, then be trusted with the government of others? Or have we found angels in the form of kings to govern him? Let history answer this question.
-Thomas Jefferson

Great innovations should not be forced on slender majorities.
-Thomas Jefferson

Experience hath shewn, that even under the best forms [of government] those entrusted with power have, in time, and by slow operations, perverted it into tyranny.
-Thomas Jefferson

I predict future happiness for Americans if they can prevent the government from wasting the labors of the people under the pretense of taking care of the

Re:The Living Constitution

[schmidt349]

To start, I checked into your Teddy J quotes and discovered the following:

#1 is a lie. Jefferson never said that and I challenge you to show me the original publication where he did.

#2 is found in his First Inaugural Address. It was probably a slap at John Adams' Alien and Sedition Act, a law that looked a lot more like the Patriot Act than the health care bill.

#3 is from another private letter. It's regularly trotted out during any controversial social legislation. Read Hirschfield (The Power of the presidency: concepts and controversy, 1982, p.311) on how this is a red herring.

#4 is from a political tract from 1779. You will note that it could just as easily be applied to the Patriot Act, the military-industrial complex, or just about any other Republican-built object of left-wing derision as it can be to social legislation.

#5 is a paraphrase of a section in a letter from 1802. The true quote reads "If we can prevent the government from wasting the labors of the people, under the pretence of taking care of them, they must become happy." Here is the following quote: "Their finances are now under such a course of application as nothing could derange but war or federalism. The gripe of the latter has shown itself as deadly as the jaws of the former." In other words, he would have winced had he seen the bill for Iraq War II, or read the justifications of the neocons.

#6 was in a letter shortly before his death about how the federal government was "consolidating power" by, get this, using the power granted to it by the Constitution (namely the commerce clause). The states are not individual republics. We tried that under the Articles of Confederation and it went over like a a lead balloon. Like it or lump it, they are subordinate in power in the regards enumerated in the Constitution to the power of the federal government. If the Fed chooses to wield that power in a heavy-handed way, it's probably stupid and possibly unethical but not unconstitutional.

The present deficit is a function of the fact that the Republicans by and large write the tax laws whereas the Democrats by and large write the social legislation. The Republicans refuse to raise taxes to pay for the social legislation, and the Democrats refuse to cut spending in the social legislation to match the current tax income. It's being caused by the present political climate of obstructionism, not by your insane theories about the gradual communization of the US. If FDR had wanted to make the US into a socialist state he would have done nothing, waited for the economic climate to bottom out, then blame all the Wall Street fat cats, order their imprisonment, seize their assets, and nationalize them. Poof. Now we're a socialist state, and it didn't take all that sneaking around!

Do you know why Roosevelt created the social safety net? It was partly to stabilize society so we didn't have happen here what happened in Germany and the Soviet Union, where agitators appealed to the people's suffering to gain their complicity in revolutionary policy. It was partly to expand the number of consumers to encourage a restart in the production economy. But mostly it was because it was the right thing to do, because a lot of average Americans were starving to death, working like slaves, and your beloved "free market" wasn't doing a goddamned thing to help them. FDR's problem was actually that he didn't spend enough -- it took the massive deficit spending associated with the war to finally terminate the crisis.

The present health care situation is a national crisis on the order of the food and work crisis provoked by the Great Depression. Thousands of people die every year because they can't afford basic medicines like penicillin and Nitrostat, or they can't afford to see a doctor to prescribe these medicines. Health care decisions are being made by bureaucrats whose only concern is protecting the value of the shareholders, and this excuse rubber-stamps their denial of benefits to thousands more Americans who then go bank

Re:I hope so.

[commodore64_love]

Yes.

But if I say something like "This is why I don't like Obama. He's just a continuation of Bush's anti-liberty/anti-individual rights policies," I'll get modded down.

Watch.

Re:MOD PARENT UP

[russotto]

This needs to be modded up. I can't comment on libertarian candidates (they always seemed a little kooky to me, as a Canadian, though), but things would not be any better under any of the other viable choices you Americans had. I can understand being upset that Obama didn't quite 'keep his promises' in the ways you want (though there are some areas he is certainly making efforts, such as the healthcare bill -- even if it was watered down to its passed form...), but don't compare him to Bush.

Why not? He's acting just like Bush in most of the areas the loudest complaints about Bush were made. Expansion of executive power beyond all reasonable bounds (remember Bush's assertion he needed no approval for wiretapping?) being one of them.

No, of course neither Clinton nor McCain would have done this differently. But with McCain, that's what McCain voters would have wanted. Obama campaigned on "change".

American Democracy Prime:

[Upaut]

A few people seem to have forgotten how Democracy works in this country, as is lined out by our constitution:

First we have the Soap Box (The right to peaceably assemble, freedom of speech, etc.)

Then we have the Mail Box (The protection of out letters, as well as the ability to write to our representatives in the government and tell them our views.)

Then we have the Ballot Box (The electoral college, voting in senators and representatives that agree with your ideals, etc, in case the previous representatives did not work to your needs.)

Then we have the Jury Box, (Where we can vote that a law or enforcement of a law is unjust. You do not have to vote guilty if a law is broken, you can vote towards nullification... True the courts are trying to ignore this right whenever possible, but we still have it. If you have jury duty, and think cannabis should be legal, and you are sitting in a trial for a non-violent offense of a guy growing pot for his friends and not receiving cash -as example, easier to convince the rest of them with this one- then remind the rest of the jurors that here and now you can work to end the prosecution of cannabis, and work to end the laws.... If you vote together, then he goes free despite being guilty of that law. There will be appeals, and the law will be reinforced by a jury of judges, but if that happens "every" time, the law will eventually be removed.)

And then we have our right of last resort: The Ammo Box.... (The second amendment is not your right to go deer hunting with a rocket launcher, it is your right to not only bear arms, but to be trained in militias to use them. Until recently, many people would keep weapons from the war in their garage, thinking nothing else of them.... Someone on the block maintained his cannon from the war in his garage, just in case he was called again. But the second amendment as viewed by the author of it, George Mason, was to protect us from the threat of an overreaching government that no longer listens, or works for, the People. -"I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them." Now, if you really want to be patriotic, gather every able bodied friend you have, and organize a militia. Train together, express your desire to protect your town if those damn Canadians invade, or the British come back.... Or anything really. And, worst case, should America turn against Americans, you now have the last line of defense to bring the power back to the people. But at that point, its not about letters anymore. Its about being willing to die for your fellow American. Because there are good chances you will. You will die for your beliefs, and kill other Americans, the soldiers and such, before you fall. You better have noble reasons in your heart, and know that true, because your group will either be a rallying point for all others, or you will be wiped out, vilified by all, and forgotten.

Then we have the Dirt Box (Re-hash of the Freedom of speech and press. The government does not have the right to hush out and kill an idea, and it gets harder all the time. Did we use these boxes in full in our lives? Will our actions and causes be remembered? Did we print and write and spread our thoughts like seeds into the wind, or was the most we did in life amount to a few +5 posts on Slashdot? Or did we manage to stop the corporatocracy, and bring back the Democratic Republic that we hold dear? Did we put a few extra term limits on each level of government, so that we will not just become a plutocracy in most things again? Where rick lawyers can no longer "retire" into a lifetime of politics- preserving the institutions that make lawyers rich in the first place? If you want to have a better system of health care, stop electing politicians that are former malpractice lawyers.... Lawyers will always make sure lawyers are needed in the future. If you don't like ambulance chasers, don't think he will do better running you local governmental institution.....

And thats our government in a nutshell. If you don't like something, write down what you want to happen, start collecting signatures; even if it means missing the new episode of House you want to watch.