Scholars Say ACTA Needs Senate Approval

suraj.sun passes along this excerpt from Wired: "More than 70 academics, mostly legal scholars, are urging President Barack Obama to open a proposed international intellectual-property agreement to public review before signing it. The likely route for that is bringing the [Anti-Counterfeiting Trade Agreement] to the Senate for ratification. ... the intellectual property accord, which Obama could sign by year's end, has pretty much been hammered out in secret between the European Union, Japan, the United States and a few other international players, including Canada and Australia. Noticeably absent is China. That said, these academics suggested that Obama does not have the authority to unilaterally sign the accord, which has been in the works for three years and is nearly final. Instead, they said, it should be considered a treaty, necessitating two-thirds Senate approval."

Comments

Re:We need scholars to tell us that?

[dkleinsc]

For the curious, Article 2, Section 2:
"[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur."

Treaties of the United States have to be ratified by the Senate. This is hardly news.

Can we think rationally here?

[Anonymous Coward]

In brief, this article says: "Scholars are begging the President to take public input before signing an agreement worked out in secret with other government's leaders."

Does that sound like democracy to you? Does it even sound like a democratic republic?

Right now, we are ruled by a king (albeit an elected one, though elections of course are won by the best-funded) who we have to beg to take input from the people. There is no democracy in there at all.

When will we learn to open source all forms of governance, and let everyone have a real say in the things that deeply affect their own lives?

A fancy form of direct democracy might not be perfect, but could it be any worse than this sort of plutocratic authoritarianism we live under now?

Re:Anyone actually find the list of law profs?

[Orga]

http://www.wcl.american.edu/pijip/go/blog-post/academic-sign-on-letter-to-obama-on-acta
found it.

Re:We need scholars to tell us that?

[Conspiracy_Of_Doves]

Yes, but Obama is trying to pass this off as being something other than a treaty.

Re:We need scholars to tell us that?

[Sonny Yatsen]

The question comes down to whether this is a Treaty, which would require the advice and consent of 2/3rds of the Senate, or whether it's an Executive Agreement, which ultimately comes down to just an agreement between the executive branches of other agreeing nations and signed by the Executive. Nowadays, Executive Agreements are the norm in foreign policy and not Treaties.

Re:We need scholars to tell us that?

[Compaqt]

Reason: GOP gets Chamber of Commerce support, Dems get Hollywood support.

Executive Agreement vs Treaty

[Nidi62]

I cannot help but wonder if it is actually better if ACTA is treated as an executive agreement rather than a treaty. If it is treated as a treat and goes to Congress, it could pass. Especially considering how much clout this particular lobby has with Congress. And if it does get ratified, it will be very hard to nullify, not only because of the required domestic support, but also because of the negative consequences internationally of backing out of international agreements. It can affect a state's credibility in the short term, making other agreements more difficult, even in other areas such as defense or the environment. I also have not read the text of the agreement, so I am not sure what provisions-if any- exist within the agreement for nullification or renegotiation. Without provisions such as these, changes to the agreement are very unlikely. Contrast this with an executive agreement, which expires after the president that makes the agreement is no longer in office unless the new president extends it.

I think I've been paying too much attention in my graduate International Institutions class.

Re:Executive Agreement vs Treaty

[Nidi62]

What are you implying? That nullification, a perfect constitutional tool, should be avoid because of International pressure?

Not at all. As a technologically aware political scientist, this Agreement scares the crap out of me. I don't want this Agreement. I am simply saying that the literature on the subject argues against a treaty such as this being nullified easily, due to both domestic and international forces. This is what I'm afraid of: that should this treaty be ratified, it won't be going away any time soon. Perhaps I should worded my original post better.

Re:Bad move

[Anonymous Coward]

Ack, 4th and 5th, sorry.

Re:We need scholars to tell us that?

[BZ]

Reading through http://en.wikipedia.org/wiki/Treaty_Clause it sounds like one major difference is that a Treaty allows something that would otherwise be unconstitutional to be done by the federal government (see the part about "can use treaties to legislate in areas which would otherwise fall within the exclusive authority of the states").

Also note that according to the same article these distinctions are only relevant for internal US purposes; all these agreements are seen as equivalent in international law.

Re:Bad move

[alSeen]

Treaties do NOT supersede the Constitution.

"This [Supreme] Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty." - Reid v. Covert, October 1956, 354 U.S. 1, at pg 17

Re:Bad move

[Anonymous Coward]

Actually, treaties are superior to state constitutions, but not to the national constitution. If they were, there'd be no reason to bother with amendments, just get a friendly country to sign a treaty with the changes you want and get it approved by the Senate and President.

Treaties are not above to the US constitution BUT

[voss]

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Article VI section 1 clause 2

Is that clear enough???

Ratified Treaties are superior to any state laws. The only exception to a treaty being imposed on states would be something that would invoke a 10th amendment issue which is provided for in the supremacy clause anyway.

Re:Bad move

[Jaysyn]

This has become a popular meme in politics, but it simply isn't true. Re: Reid v. Covert, October 1956

More info here, here, & here.

Brazilian Position

[ColeonyxOnline]

The Brazilian government has released a statement about the ACTA giving four reasons of concern to the country.

1. - The agreement would shift the balance between right holders and consumers.
2. - Brazil prefer these negotiations to happen in either the WTO or WIPO. Both seem a lot more open and transparent.
3. - The agreement proposes only one remedy to the situation, repression.
4. - The agreement encompasses more than just an understanding between a few nations and creates a whole structure that extends to other countries.

Source: Brazilian intervention at TRIPS Council: ACTA

Re:We need scholars to tell us that?

[VolciMaster]

That can't be, he ran on a platform of openness and transparency.

And this has been ongoing for over 3 years, which means Mr Obama didn't even originate it.

The problem is power enforcement.

[shuz]

Congress passed the Case Act of 1972, requiring the secretary of state to send to Congress within sixty days the text of "any international agreement, other than a treaty," to which the United States is a party. If the president decided that publication would compromise national security, he could transmit it to the Senate Foreign Relations Committee and the House Committee on Foreign Affairs under an injunction of secrecy removable only by the president. But presidents from Nixon to Clinton ignored or circumvented the statute, and congressional enforcement efforts have been largely ineffective. The source: http://www.americanforeignrelations.com/A-D/The-Constitution-Executive-agreements.html

Re:We need scholars to tell us that?

[ffreeloader]

How can he bypass Congress to implement it?

By doing just what's being discussed here, by claiming the ACTA isn't a treaty and attempting to use an Executive Agreement to give it the force of law. If he gets away with that he's bypassed the Senate.

Re:We need scholars to tell us that?

[blueg3]

How did the patriot act pass?

With the approval of the House and Senate, as it turns out.