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

We need scholars to tell us that?

[bonkeydcow]

Doesn't anyone read the constitution anymore? Animal Farm here we come.

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.

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?

[Shakrai]

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

Re:We need scholars to tell us that?

[mcvos]

I don't understand why Obama is so hung up on the ACTA. The negotiations started before he came to power, didn't they? Why is it his baby? Or is he just talking with the same lobbyists?

Re:We need scholars to tell us that?

[Compaqt]

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

Re:We need scholars to tell us that?

[mcvos]

But surely an Executive Ageement has nowhere near the same power as a Treaty, right? My guess is that a Treaty is pretty much a law (sometimes stronger than a law, because a country can't unilaterally repeal it), whereas an Executive Treaty is more like saying: "how about we let our navies train together?".

Re:We need scholars to tell us that?

[Compaqt]

I tell you, Bush Jr. is trampling all over the Constitution. I can't wait for the day he's replaced. ...

Oops.

Re:We need scholars to tell us that?

[OeLeWaPpErKe]

The central position in government is trying to pull more power into it's office ?

Stop the presses !

Besides, Americans are really lucky. In European countries (all EU member states), international treaties only have to be ratified by the minister of foreign affairs, and take precedence over the constitution of the signatory countries. Obama's simply trying to destroy the sovereignty of America the way Barosso succeeded in doing to the European countries.

Barosso destroyed the sovereignty of these countries, with much accomplishes from those countries, simply to amass more power into a centralized point. This is simply what governments do.

And don't worry : "It's for your own good" (says the "ex-"communist "ex-"maoist Barosso, owner of more than ten times more luxury cars than I have pairs of footwear). I'm sure Obama (insert whatever reason you don't like him) will behave a *lot* better, right ?

Re:We need scholars to tell us that?

[CyprusBlue113]

Ok, I'll admit I've never heard of such a thing before, so I have to ask, exactly how is that not a treaty, just using a different name to try to skirt approval requirements?

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:We need scholars to tell us that?

[sjs132]

No, the real reason is they are all on the same team, they just switch shirts occasionally to confuse us. In reality, what one starts, the other will finish because it is still a power for the puppet masters that are really in charge. WAKE UP SHEEPEOPLE! I wish it was as easy as putting on a pair of cool sunglasses, but you have to PAY ATTENTION!

Re:We need scholars to tell us that?

[Scrameustache]

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

Is it torture, or enhanced interrogation? Is that a janitor or a fixed infrastructure maintenance technician? Is it one honest word or many words to hide the truth?

Re:We need scholars to tell us that?

[VGPowerlord]

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.

er... yeah:

The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

-- US Constitution, Article I Section 8.

That would prevent an executive order from changing Copyright or Patent laws.

Re:We need scholars to tell us that?

[icebraining]

*Barroso, the fucking son of a bitch who forced us to support the Irak war despite major public opposition (a rally of 80 000, which is rare here) before escaping to the EC mid-term.

Re:We need scholars to tell us that?

[JWW]

wish it was as easy as putting on a pair of cool sunglasses

Ain't that the truth, but alas that only works in "They Live."

Re:We need scholars to tell us that?

[mcvos]

So basically a president can create whatever laws he wants without interference by the Senate, as long as he can give an international spin to it and can get at least one other country to do the same?
And it shouldn't be too unconstitutional, of course.

Sounds like an awful lack of checks and balances.

Re:We need scholars to tell us that?

[VolciMaster]

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.

So if only 3 senators are "present", only 2 need to agree?

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.

Re:We need scholars to tell us that?

[SirGarlon]

The same way the president can issue edicts that are not laws, they're "Executive Orders." Or the Guantanamo prisoners are not prisoners of war, they're "Enemy Combatants." Or security for the G8 summit is not suppressing dissent, it's "designating Free Speech Zones." Sometimes the law or the Constitution is inconvenient to the President, so he makes up a new label for something he's not allowed to do, and decrees that the law or Constitution doesn't apply because of that label.

This is not a Democrat/Republican thing: George W. Bush and Obama are pretty different from one another yet they have both used these shenanigans routinely. It's a "power corrupts" thing. (Or perhaps a "Congress is asleep at the wheel" thing, or a "why haven't the people stormed the White House with torches and pitchforks?" thing.)

Re:We need scholars to tell us that?

[gtall]

I think it would come down to what happens in an American court were a case to come up that violated an executive agreement. Does anyone know of a precedent?

Re:We need scholars to tell us that?

[SirGarlon]

I guess whether being "open" and "transparent" is a good thing or not depends on whether you're also "honest" and "courageous".

Re:We need scholars to tell us that?

[general_re]

There's not very much in the way of precedent covering Executive agreements - much less than what addresses the constitutionality of treaties, for example. However, Lawrence Lessig co-wrote an op-ed piece not too long ago addressing ACTA and Executive Agreements:

http://www.washingtonpost.com/wp-dyn/content/article/2010/03/25/AR2010032502403.html

His take, in short: not bloody likely.

Re:We need scholars to tell us that?

[Surt]

The reality is: enough of us are awake, but the elections are rigged, so it doesn't matter.

Re:We need scholars to tell us that?

[mcvos]

If enough of you were awake, you'd all vote for a party that wanted to change the system, and you'd burn the offices of Diebold to the ground.

Re:We need scholars to tell us that?

[IndustrialComplex]

An executive agreement does not really create new law, it just 'organizes' the authority granted to the executive branch in a specific manner. The agreement is on the manner of applying such power.

For example, if Congress passed a law which granted an agency under the control of the executive to do XYZ, but it was currently only doing YZ, an executive agreement could be signed which said that the Government would now ALSO do X. (Or it could also say it would stop doing Z and just do XY).

If the agreement was to do LXYZ, then it would be a treaty, and require the approval of the senate because it would be exercising power not granted to the executive in the form of L.

Re:We need scholars to tell us that?

[Sonny Yatsen]

Executive Agreements can have essentially the same scope as a Treaty. The primary difference between a Treaty and an Executive Agreement in its effect is the priority of supremacy they are applied.

We know from the Supremacy Clause of the Constitution that:

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. - Art. VI, Sec. 2

However, within the federal laws themselves, there is a further priority of supremacy. Federal laws cannot be made in contradiction of the Constitution - for the Constitution is Supreme. Similarly, a federal statute can't be made in contradiction of a Treaty, because a Treaty is considered higher in supremacy to a Federal statute, but lower than the Constitution. (And federal rules and regulations fall below that of all Federal statutes, treaties, Constitution, etc.)

An Executive agreement tends to sit just slightly above federal laws, but they cannot contradict any treaties or the Constitution itself. What's the practical effect of this? Not much - but it is easier to strike them down in a court, I suppose.

Re:We need scholars to tell us that?

[GNious]

In European countries (all EU member states), international treaties only have to be ratified by the minister of foreign affairs, and take precedence over the constitution of the signatory countries.

Seriously? Not saying you are wrong, or anything, but I'd like some kind of proof.

Re:We need scholars to tell us that?

[Sonny Yatsen]

The Constitutional basis for Executive Agreement comes from the Article 2 powers of the the Executive to be the sole representative of the US in foreign matters. Yes, it's not explicit, but that's where the basis derives from.

In any case, I think it's an over-simple view that if it doesn't appear in the Constitution, then there's no force of law behind it (or is Unconstitutional). Remember, nothing in the Constitution mentioned creating the DARPA project that lead to the Internet, yet here we are.

Re:We need scholars to tell us that?

[future assassin]

Whether you like it or not he won't hide it from you and be open about doing it.

Re:We need scholars to tell us that?

[mcvos]

An Executive agreement tends to sit just slightly above federal laws, but they cannot contradict any treaties or the Constitution itself. What's the practical effect of this? Not much - but it is easier to strike them down in a court, I suppose.

So an Executive Agreement has higher supremacy than a law, despite the fact that the legislature has no say in it?

Just pointing out the gaping hole in the system.

Re:We need scholars to tell us that?

[Eivind Eklund]

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

Is it torture, or enhanced interrogation? Is that a janitor or a fixed infrastructure maintenance technician? Is it one honest word or many words to hide the truth?

"It" is clearly one word, not many, which by your own dichotomy means that it must be honest.

Eivind.

Re:We need scholars to tell us that?

[pavon]

No - executive agreements are limited in that they can only agree to things which the executive already has the power to enforce (ie things that are already laws). In this case, ACTA basically amounted to exporting the DMCA to other countries, thus administration took the point of view that no changes to the law were needed to enforce this agreement; thus it did not need to be treated as a treaty or need any congressional ratification.

These law scholars are arguing that the current draft does have sections that differ from our current laws and thus new legislation needs to be passed to uphold the treaty.

Personally, I think the idea of executive agreements are still a bad idea, as it is much harder to change the law after it has been enshrined in a treaty (by any name), so congress should have some say in whether the existing law is cemented like that.

Re:We need scholars to tell us that?

[CyprusBlue113]

Yeah but most all of the executive orders are on issues the executive branch does control. I don't understand how that's the case with treaty situations.

Guantanamo is a mil base, well under exec jurisdiction, and no actual war has been declared, so its hard to call them prisoners of war. I don't particularly like the fact that non citizens are not getting reasonable protections from prosecution, but there is an argument there at least for justification.

Free speech zones I do take issue with, though its hard to call it oppression as compared to just overreaching by police entities, I am however very disapointed in the judicial branches (all of them, not just top federal) for upholding those policies as valid.

Re:We need scholars to tell us that?

[Shakrai]

"why haven't the people stormed the White House with torches and pitchforks?"

I was planning on storming the White House last week but then I remembered that American Idol was on.

Re:We need scholars to tell us that?

[Attila Dimedici]

The advantage of an Executive Agreement (from the perspective of those who want to see the particular agreement put into force) is that it does not need to go through the messy process of Senate confirmation. The disadvantage of an Executive Agreement is that the next Presient can choose not to go along with it. From a legal standpoint in the U.S. and Executive Agreement has no more (and no less) force of law than an Executive Order.

Re:We need scholars to tell us that?

[sjs132]

Yep, it was a cool movie in a 'B' way, but isn't that what makes it great. :)

Re:We need scholars to tell us that?

[DragonWriter]

Treaties of the United States have to be ratified by the Senate.

Sure, that's not controversial.

Its also not controversial that there are international agreements that are not treaties, and that do not require ratification by a 2/3 vote of the Senate, particularly executive agreements that can be entered into unilaterally, and agreements that are implemented by adoption of normal legislation (which, while they require action in both houses of Congress, don't require a 2/3 vote in either.)

Whether a particular agreement is within the scope of executive authority or is something that can only be done as a treaty or legislation (or whether, if its accepted as a treaty, it is self-executing or requires additional implementing legislation) is, OTOH, often controversial.

In fact, that is particularly what is controversial here.

Even further, whether something that is accepted as being within the existing scope of the authority for executive agreements is inherently Constitutionally within executive authority or whether it is merely within the scope of executive authority given the existing statutory framework and could be withdrawn by simple legislation is also often controversial.

Re:We need scholars to tell us that?

[DragonWriter]

But surely an Executive Ageement has nowhere near the same power as a Treaty, right? My guess is that a Treaty is pretty much a law (sometimes stronger than a law, because a country can't unilaterally repeal it)

Countries can generally unilaterally repudiate treaties under international law, and in US law it is well established that an act of Congress can limit or abolish the legal force, under US law, of a treaty.

But, yes, Executive Agreements have pretty much exactly the same force as unilateral executive actions outside of the context of an international agreement would have, so they are generally limited in scope to governing the exercise of inherent Constitutional prerogatives of the President and powers lawfully delegated to the Executive by Congress.

Re:We need scholars to tell us that?

[kenj0418]

...have to be ratified by the Senate.

Well, then it's a good thing the we don't have a bunch of Senators that are willing to do whatever the .*AA tell them to. Oh yeah -- damn, we're still screwed.

Re:We need scholars to tell us that?

[TheEyes]

"Tends to." This sort of thing hasn't yet been fully tested in court yet; it may be that Executive Agreements are inferior to federal law, or it may not. I'm unsure if there has been a single test case yet.

Re:We need scholars to tell us that?

[ffreeloader]

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.

What's that got to do with it? He's going to implement it, and bypass Congress to do it if he can get away with it. He is not required to complete something this stupid. He's going to implement it because increasing government power, with the necessarily required reduction in personal freedom that a more powerful government is predicated upon, is his goal. The sum of everything he's done since he's been in office is: more power to government, less freedom for the individual.

Re:We need scholars to tell us that?

[ffreeloader]

Yeah, right. Obama will tell them this is an emergency so they must vote yes immediately, after which they will be able to read the treaty to find out what they approved. That's how he's gotten all his legislation passed.

Re:We need scholars to tell us that?

[TheEyes]

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.

So if only 3 senators are "present", only 2 need to agree?

By Constitution and by traditional Senate rules, the Senate can't pass anything without a quorum (usually a simply majority) of the Senators present. In theory, that means that a treaty could theoretically be passed with only 34 senators approving (51 present * 2/3), but realistically you're not going to find times where 49 Senators are off screwing around when the Senate is in session.

Re:We need scholars to tell us that?

[commodore64_love]

>>>Executive Agreement

Where on earth is this in the Constitution? In any case, it can't overrule the Legislative branch. They can't simply choose to ignore ACTA and pass whatever laws they wish.

Re:We need scholars to tell us that?

[commodore64_love]

>>>a Treaty allows something that would otherwise be unconstitutional to be done by the federal government

Does that include Amendment 1? Or 2? Or 4? Or 5? Just sign a treaty, get 2/3rd of Senate approval, and those pesky rights can be nullified?

Re:We need scholars to tell us that?

[BZ]

All I know about it I got at the link I cited. So I can't tell you more than reading it would, sorry.

Would be good to get a decent constitutional lawyer on the line, though...

Re:We need scholars to tell us that?

[zach_the_lizard]

DARPA could be construed as necessary and proper for the constitutional power of Congress to maintain an army. The other stuff, not always so much. The Constitution is a whitelist; only those actions specifically made allowed (or that can reasonably be called necessary and proper to use those powers) are allowed. Otherwise, there's no point.

Re:We need scholars to tell us that?

[zach_the_lizard]

Where is most of the US government's power in the Constitution? Nowhere, really. Just a twisting of the commerce clause to mean do anything. Heck, we can go to war without Congress....

Re:We need scholars to tell us that?

[Teancum]

One thing about an executive order is that it is an "order" from the President to an employee of the U.S. government telling them how they are supposed to do their job. A simply and ordinary law passed by Congress can override this order, so it is subordinate to legislation passed by Congress.

Since the U.S. government is so huge and expansive, and the authority of even individual agents and employees so expansive, an executive order can have the effect and impact often that a law has, including the interpretation of deliberately left vague sections of various laws that have been enacted.

These "executive agreements" pretty much are done along similar lines, but unfortunately the courts are increasingly interpreting them as a form of treaties when in fact they aren't. That is a significant problem.

Where I have a problem with the ACTA is that it has been negotiated in secret. To me, treaties and for that matter any sort of government business should never be done in secret with the possible exception of military planning.and matters of a personal nature. I don't expect to know each time an elected official takes a dump, to give an example. But if they are making some key decisions and making major policy documents, those should be open to the public and be debated and discussed by the citizens as well. Copyright as an issue in particular serves nothing to keep hidden and by definition shouldn't be something classified as a national security secret.

Re:We need scholars to tell us that?

[sourcerror]

"In European countries (all EU member states), international treaties only have to be ratified by the minister of foreign affairs, and take precedence over the constitution of the signatory countries. Obama's simply trying to destroy the sovereignty of America the way Barosso succeeded in doing to the European countries."

You might be factually correct, but you should remember:

1, EU member countries can quite EU anytime they want.
2, They can quit treaties anytime they want.

Re:We need scholars to tell us that?

[andymadigan]

They were captured on foreign territory. We were in that territory without the consent of said foreign government (until we replaced it). If war has to be declared first then there hasn't been an American POW since 1945. Where they are now (be it in the hands of Americans in the Middle East, on a Military Base leased from Cuba, or in the U.S.) does not alter their status. The Department of Veterans Affairs seems to believe that there were POWs in the conflicts in North Korea and Vietnam (http://www.publichealth.va.gov/vethealthinitiative/pow.asp).

Of course, if we returned them to their own country (e.g. if a Guantanamo prisoner has Iraqi citizenship) then that's entirely different, they might be considered an ordinary criminal and might even be subject to extradition by the United States. Of course, then we would have to meet the standard of proof that our society has deemed necessary in order to deprive someone of their liberty.

Re:We need scholars to tell us that?

[AK Marc]

How can he bypass Congress to implement it? Just take it as law and start enforcing it with the FBI? That won't work the first time a case gets in front of a judge. Even "real" treaties aren't held as the law they supposedly are, and instead actual laws are passed to enforce the treaty. The President can sign anything he damn well pleases. There's nothing against him signing used toilet paper and writing "good for one free Ford at your local dealer" on it. It won't be law. It won't be enforceable. But he can sign it. He can sign this treaty. I wish the "scholars" would shut the hell up and let him sign it and assert that it doesn't need approval. Then, when it gets enforced the first time, the whole damn thing is thrown out.

The sum of everything he's done since he's been in office is: more power to government, less freedom for the individual.

Name the last president who didn't live by that motto. Depending on your political leanings, I'd guess the most recent ones you could argue that about would be Carter or Eisenhower, but I'd put my money on either the forgettable presidents in Laissez Faire or George Washington (who in his insight, indicated in his fairwell address, that a party system would be the downfall of the country, and it may have taken a while to manifest, but it seems to be the case now).

Re:We need scholars to tell us that?

[swillden]

Executive Agreements can have essentially the same scope as a Treaty. The primary difference between a Treaty and an Executive Agreement in its effect is the priority of supremacy they are applied.

No, that's not the difference. The difference is that Executive Agreements are only commitments by the president and not by the country. What does that mean? That means that only powers delegated to the president can be used to carry out the terms of the agreement. If the president has the authority to order done all of the US obligations, then it can be an Executive Agreement. If the agreement would mean the country has to do things the president doesn't have the authority to do then it can't be an Executive Agreement.

Well, technically, it can, but the parts of it that exceed the president's authority will be unenforceable.

An Executive agreement tends to sit just slightly above federal laws, but they cannot contradict any treaties or the Constitution itself.

No, an Executive Agreement sits below federal laws, alongside Executive Orders. And no laws or treaties can contradict the Constitution.

Re:We need scholars to tell us that?

[apoc.famine]

Would it? I think it would come down to it being challenged on the constitutional merits of the executive order. If Obama said, "Copyright lasts for 14 years, like it did back in the day", someone would have to challenge that is not promoting "the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries".

It would be interesting to see that argued in court against our current laws. Which one more closely adheres to the constitution?

Re:We need scholars to tell us that?

[cheekyjohnson]

"The sum of everything he's done since he's been in office is: more power to government, less freedom for the individual."

Like every politician in existence? Oh, and money, too.

Re:We need scholars to tell us that?

[cheekyjohnson]

"How can he bypass Congress to implement it?"

How did the patriot act pass? People who didn't value their privacy thought it was okay for the government to take it away if they combated someone they perceived as a threat. If there's as many people as I suspect that hate pirates for their own illogical reasons and they are unaware of what the bill really is, they may end up agreeing with it. Politicians have been making decisions that clearly breach the constitution for a while now.

Re:We need scholars to tell us that?

[cheekyjohnson]

Who would that be? There are a number of parties that want to change the system, or at least parts of it. But I'm sure they could, perhaps, be persuaded to change other things as well.

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?

[Wyatt Earp]

In the US a treaty becomes the law of the US, so thats why the writers of the US Constitution put in that the Senate would have to ratify the treaty with a 2/3rds vote.

Even with a Democratic majority in the Senate, the Obama Administration will be very hard pressed into getting some Republicans to come over and sign this.

The Administration knows ACTA will not pass, if the details get out it'll be a firestorm among the most liberal Democrats, the Blue Dog moderates and Constitutionalist Republicans (more of whom will be in come January '11).

So the Administration is trying to end-around the Constitution and say it's not a treaty.

Clinton tried to do this with the Comprehensive Nuclear-Test-Ban Treaty, On 13 October 1999, the United States Senate rejected ratification of the CTBT and the Clinton Administration tried to lay the ground work to enforce it's compliance in the US anyway. I recall the Senate sending the White House a letter on it and it pretty much

http://www.acronym.org.uk/dd/dd47/47kyl.htm

Re:We need scholars to tell us that?

[ffreeloader]

"The sum of everything he's done since he's been in office is: more power to government, less freedom for the individual."

Like every politician in existence? Oh, and money, too.

I won't say all politicians are corrupt, although I do believe most of them are. Honest people still exist, so honest politicians can exist too.

As to Obama's grab for power, comparing his power grabs to previous presidents is like saying a rain shower and a tornado are both just rainstorms.

1 . He is attempting to force people to buy a product just to live in the US with Obamacare. That's far beyond anything any other presidents have attempted to do other than FDR and Wilson, and they were, coincidentally, progressives just like Obama.

2, The same goes for his bill to supposedly put an end to bailouts. In fact it gives the government the right to take over any business at any time for any reason. At the same time it legally muzzles the business from talking about what has happened and why, and then stops all FOIA requests about the situation.

3. His consumer protection bill allows the government to track all your financial transactions without giving any legal reason to do so. No warrant needed. No need to show cause.

4. What's more he has granted himself the power to hold American citizens without bail or any due process. He's also granted himself the legal right to assassinate American citizens. Both denying bail and assassination can be done on nothing more than an accusation by the White House. No evidence is needed.

I'd say that puts him far beyond the pale with respect to power grabs..

Re:We need scholars to tell us that?

[imthesponge]

The Republicans are corporatist, not constitutionalist. The "Tea Party" thing is just a front. Not that the Democrats are much better.

Re:We need scholars to tell us that?

[VGPowerlord]

Would it? I think it would come down to it being challenged on the constitutional merits of the executive order. If Obama said, "Copyright lasts for 14 years, like it did back in the day", someone would have to challenge that is not promoting "the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries".

It would be interesting to see that argued in court against our current laws. Which one more closely adheres to the constitution?

It'd be unconstitutional; the power to set copyrights doesn't belong to the executive branch.

Re:We need scholars to tell us that?

[cheekyjohnson]

"Honest people still exist, so honest politicians can exist too."

True, but the amount of people that will discard their honesty in exchange for power and/or money is likely tremendous.

Re:We need scholars to tell us that?

[commodore64_love]

Constitution == whitelist?

Re:We need scholars to tell us that?

[Nyder]

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.

Wow, did you not even bother to read the summary? I can understand not reading the article, but the summary makes it clear that Obama isn't considering it a treaty.

Here, let me quote it for you:

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."

You do notice it's being called an accord and the scholars are saying it's actually a treaty?

Re:We need scholars to tell us that?

[ffreeloader]

"Honest people still exist, so honest politicians can exist too."

True, but the amount of people that will discard their honesty in exchange for power and/or money is likely tremendous.

Someone who sells out for power or money was never honest to begin with. They had always placed a price on the extent of their integrity. They just hadn't been offered enough to sell out up to that point.

An honest person, by definition, is someone who isn't going to sell out, period. An honest person doesn't have a price point at which they will consider money or power as adequate compensation for their integrity and peace of mind.

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.

Re:We need scholars to tell us that?

[cheekyjohnson]

Oh, so you're speaking of that almost nonexistent group of people. I see.

Re:We need scholars to tell us that?

[cheekyjohnson]

Right. That just makes it even worse.

Re:We need scholars to tell us that?

[Scrameustache]

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

Is it torture, or enhanced interrogation? Is that a janitor or a fixed infrastructure maintenance technician? Is it one honest word or many words to hide the truth?

"It" is clearly one word, not many, which by your own dichotomy means that it must be honest.

Eivind.

You're saying "it" clearly stands for "treaty" and not for "executive agreement", then.

Re:We need scholars to tell us that?

[Lanteran]

the problem is that you're working under the assumption that politicians care about the constitution.

Re:We need scholars to tell us that?

[ffreeloader]

Oh, so you're speaking of that almost nonexistent group of people. I see.

Nope. You just run around with the people.

Re:We need scholars to tell us that?

[ffreeloader]

That should be: you run around with the wrong people.

Re:We need scholars to tell us that?

[cheekyjohnson]

Let me rephrase: you're speaking of an almost nonexistent group of politicians. I haven't seen a politician that wasn't corrupt. They are all likely persuaded by money, which is why we are constantly seeing proposals for new anti-piracy laws.

Re:We need scholars to tell us that?

[AmberBlackCat]

If it's not a law or a treaty or an act, or whatever else, then can't we just ignore it?

Re:We need scholars to tell us that?

[AK Marc]

No executive order has ever been held to have the force of law unless it was a specific direction of an existing law. No new law has ever been enforced by signing statement or executive order.

I can see how people fearing the worst will assert all manner of evil to someone they don't like, but I fail to see how he's going to get away with something that everyone who's ever even wiped their ass with the Constitution knows is illegal. If Obama is correct, that the treaty is exportation of US law and thus needn't have the force of law in the US, then we would be living under it because the DCMA passed. If there is anything at all in the treaty that isn't already in US law, signing it will not make those provisions enforcible unless ratified. I've seen nothing that's indicated that Obama thinks anything other than that will happen. Well, other than insane ramblings of conspiracy theorists. Not that I'm defending him, his position, his policies. I'm just stating that all the conjecture I've seen on this subject appears to be 100% false.

Re:We need scholars to tell us that?

[hitmark]

Yep, i think this is why the US negotiators are attempting to keep the french requirements related to "champagne" and similar out of ACTA. If it is in, it requires approval. If not then it is basically international DMCA.

Re:We need scholars to tell us that?

[ffreeloader]

Some of the anti-piracy thing is due to ignorance about what is going on. I'd bet 90% of politicians haven't studied the situation in detail and are relying on their staff to a great degree. That doesn't make it right, but time constraints come into play. They have to set priorities and I'd bet most of them don't set a high priority on understanding this issue. (See below to understand why.)

Add to that the fact that many politicians aren't the sharpest knife in the drawer--remember the senator that thought an island would sink if there was too much weight on one side of it--and the reality of politicians being influenced by slick talking lobbyists becomes very likely, even without any graft or dishonesty.

On top of that many of the opponents of the piracy laws seem to think that breaking the law is a good thing. That automatically puts them in a bad light in the eyes of a lawmaker, and gives the lobbyists much greater influence. That's why I have consistently said that if people want to change those laws they have to stop breaking them and start making cogent arguments to the right people. If you want to change those laws you can't appear to doing it for no other reason than to justify what appears to be theft to many people. You must emphasize the principles involved, and leave all appearance of dishonesty behind....

Re:We need scholars to tell us that?

[cheekyjohnson]

"Some of the anti-piracy thing is due to ignorance about what is going on."

But most of it is due to lobbyists.

"On top of that many of the opponents of the piracy laws seem to think that breaking the law is a good thing."

Civil disobedience. Breaking the law isn't always a bad thing.

"That's why I have consistently said that if people want to change those laws they have to stop breaking them and start making cogent arguments to the right people."

Doesn't work if they're paid. Which, all of them either already are, or if they haven't yet been, they will after that.

Many, many people have used civil disobedience before. It is an effective way to show how idiotic a certain law is. Do you honestly believe that the majority will stop buying their favorite media so they can combat the entertainment industry? I don't, and talking it over will solve nothing since politicians are paid off anyway.

Re:We need scholars to tell us that?

[Eivind Eklund]

I was attempting to make a linguistic joke, nothing more. I don't know enough US law to be sure about the limits; it seems like a treaty to me, but so does many of the other things treated as "executive agreement". And the overall process seems horribly corrupt :-(

BTW, saw your Firefly signature line - I also miss it. Nathan Fillion is doing a very good job in Castle, if you want to see one of the actors again.

Eivind.

Re:We need scholars to tell us that?

[ffreeloader]

"Some of the anti-piracy thing is due to ignorance about what is going on."

But most of it is due to lobbyists.

"On top of that many of the opponents of the piracy laws seem to think that breaking the law is a good thing."

Civil disobedience. Breaking the law isn't always a bad thing.

"That's why I have consistently said that if people want to change those laws they have to stop breaking them and start making cogent arguments to the right people."

Doesn't work if they're paid. Which, all of them either already are, or if they haven't yet been, they will after that.

Many, many people have used civil disobedience before. It is an effective way to show how idiotic a certain law is. Do you honestly believe that the majority will stop buying their favorite media so they can combat the entertainment industry? I don't, and talking it over will solve nothing since politicians are paid off anyway.

Civil disobedience is what Martin Luther King and Ghandi did. They went out and risked life and limb to protest in the light of day. They acted ethically and made sure they founded both their claims and actions in solid ethics. Thus they appealed to the sense of justice that is inside every one of us. They took the moral high ground and that is why they won in the end.

Who will garner sympathy to their cause? People seen as thieves justifying their own actions, or ethical people seen as fighting for a moral cause that benefits us all because it is just? Remember, you have to look at this through the eyes of those whose support you wish to garner, not through your own eyes.

As to your last paragraph, well, here's what I see you saying. I don't believe anything will change so I don't care if I'm seen as thief. I choose to justify my actions rather than truly work for lasting change. So what if the public won't support me, and I look bad to the people who can actually change the law, because they see me as thief. I'm going to keep on pirating and violating copyright laws.

That attitude will never gain you support from anyone. To tell the truth, I've seen this attitude so much on this site that even though I understand the issues at stake, and would like to see the laws changed because current laws are unfair, that I have lost sympathy with those of you who think that way. It's like you're all saying, well, our opponents are unethical so we are going to lower ourselves to their level. You're make it a race to the bottom of the ethical barrel even though you claim to despise the ethics of your opponents. That's a sure way for your cause to lose and for the vast majority of citizens and lawmakers to oppose you.

The entire point of civil disobedience to garner support from the public. It's to highlight the justice of your cause in the heart of the common man. It's to put pressure on the legislators through outrage from the public at large. They way you guys are going about this defeats the very purpose of civil disobedience, so don't tell me you're trying to get the laws changed because you care about whether the current laws are just or unjust. Ethics and justice have nothing to do with your fight.

Re:We need scholars to tell us that?

[blueg3]

Bad, but not really bypassing Congress at all.

Re:We need scholars to tell us that?

[cheekyjohnson]

"ethical people seen as fighting for a moral cause that benefits us all because it is just?"

Believe me, hardly anyone believes this now, and they certainly won't in the future if this trend continues. They will soon see just how evil the entertainment industry is if they haven't already. Trying to persuade paid politicians who are already proclaiming that piracy is equal to that of robbing a store is not going to work, period.

"I don't believe anything will change so I don't care if I'm seen as thief."

The only thing that will cure this problem is education. If everyone knows why piracy doesn't hurt anyone, then it won't be a problem. I've explained why this is to many, many people. I hope others will do the same.

"our opponents are unethical so we are going to lower ourselves to their level"

I didn't lower myself to their level. I didn't lower myself at all.

"The entire point of civil disobedience to garner support from the public."

Not when you have an entire line of politicians paid to make sure that doesn't happen. Besides that, it's nearly impossible to find out if someone is a pirate or not. It is unlikely that someone will walk up to you and say "Wow, look, a pirate! What a dirty thief!"

"Ethics and justice have nothing to do with your fight."

Sure they do. But your solution is this: "Try to persuade paid off politicians to see the light of day! Stop all piracy until then! That'll work!" That would just be giving them exactly what they want. Our obedience.

Re:We need scholars to tell us that?

[ffreeloader]

Your entire line of reasoning is defeated by 4 words. Ghandi, Martin Luther King

1. Ghandi had the entire force of the British Empire against him, plus all the bigotry the English had against the Indians. He won.

2. Martin Luther King had the entire force of US government against him, plus immense amount of bigotry by individual lawmakers. He won.

That makes your opposition seem mighty weak. All you need to defeat is a couple of corrupt corporate entities.

You have completely misstated my solution. My solution is to garner public support and stop alienating both the public and the lawmakers. That way you take away the lawmakers excuses and lobbyists arguments. That's what both Ghandi and MLK did.

Also, answer this question: How are corrupt lawmakers going to stop you from garnering public support? Look at the Tea Party. They're hated by career politicians, yet have gained massive public support and are changing the face of politics. They have gained the support of 65% of the entire nation and have made a huge impact. Are you saying your task is harder than what they have undertaken? Are you really going to try to tell me that the power of the *iaa's is greater than that of the entrenched power of both of the major political parties?

Re:We need scholars to tell us that?

[lsatenstein]

Who says Obama is passing it off. The ACTA people would like that, but Obama is one of the smartest (intelligent) leaders the USA has had in a long time. He is also Mr Nice Guy, where he should be Mr toughie. He is trying to ensure that you Americans have a future. And the real pity is that it takes time to make changes from one of the largest boats in the world. And as a second thought, he wont approve the ACTA accord. Read my keystrokes.

Re:We need scholars to tell us that?

[Scrameustache]

I was attempting to make a linguistic joke, nothing more.

I use a lot of bold, italics and exclamation points when I want to make a comment sound more funny without including a smily. The extra formatting takes the place of a funny voice or comedic timing; otherwise it's hard to tell a text joke appart from textual criticism.

Re:We need scholars to tell us that?

[cheekyjohnson]

What? Alright, pirates aren't getting constantly abused or anything severe like that. In the eyes of the brainwashed general public, they are merely thieves. To them, no injustice is being done to them when they are hit with hundreds of thousands of dollars in fines. I ask again: what good is calling politicians going to do? Especially if everyone stops pirating media for no reason? That won't change their mind. A normal brainwashed individual would think nothing more than "oh, they finally stopped stealing from artists." They aren't going to magically change their mind about piracy because everyone stops. In fact, stopping may make them appear even worse. Why stop if what they are doing causes no harm?

Re:We need scholars to tell us that?

[cheekyjohnson]

Yeah, I didn't really mean it bypassed congress, though. What I meant was that if the government can make average people scared (with words like "terrorism" or "piracy"), an unconstitutional law that violates our freedoms actually does have a chance of passing.

Re:We need scholars to tell us that?

[ffreeloader]

Well, since you are incapable of trying to understand any viewpoint other than your own, or even look at a situation through anyone else's eyes, I'll stop the conversation at this point.

I'd wish you good luck with thinking you can effect societal change by appearing dishonest, but I have no sympathy for your self-imposed blindness.

Re:We need scholars to tell us that?

[cheekyjohnson]

"Well, since you are incapable of trying to understand any viewpoint other than your own"

Why the assumptions? I don't believe you were present in every argument I've ever gotten into. I've changed my mind about certain subjects in the past given a convincing enough argument, but I don't believe this is one of them.

"I'd wish you good luck with thinking you can effect societal change by appearing dishonest, but I have no sympathy for your self-imposed blindness."

Legitimate question: how would ceasing to pirate media (something no one other than yourself can see in the first place) change everyones mind about piracy? They would, instead, be grateful that the 'thieves' aren't 'stealing' anything any longer, would they not?

Re:We need scholars to tell us that?

[ffreeloader]

What assumptions? You've been unable to grasp any argument other than your own, or to see things through someone else's eyes, in this entire conversation. Why do I say this? Read below.

What makes you think the the only possible tactic for changing public opinion is through appearing dishonest? I've given you two classic examples of individuals who faced much greater odds than what you're facing and won far more difficult battles. They did so by going to great lengths to avoid any appearance of exactly what you promote. They both faced corrupt lawmakers, bigotry in both the general public and the government in their societies, and a public uneducated in the principles they were wanting people to live by. How are those odds less significant than what you think you face?

Truly smart people look at what has already been proven to work, and then follow that example as closely as possible. So, give me examples of how individuals have changed society for the better by changing its laws through promoting apparent dishonesty in the eyes of the vast majority of their society.

Re:We need scholars to tell us that?

[cheekyjohnson]

"What assumptions? You've been unable to grasp any argument other than your own, or to see things through someone else's eyes, in this entire conversation."

You said "any viewpoint," implying that I cannot understand any viewpoint other than my own, not just yours.

"What makes you think the the only possible tactic for changing public opinion is through appearing dishonest?"

They don't appear dishonest. It is very, very difficult to tell a pirate from a 'normal' person.

"I've given you two classic examples of individuals who faced much greater odds than what you're facing and won far more difficult battles."

Yes, but they weren't labeled thieves. The injustice done to them was obvious.

"They did so by going to great lengths to avoid any appearance of exactly what you promote."

What would that be? I'm pretty sure that they used illegal (or at least frowned upon), non-violent methods to get their point across (such as not moving to the back of the bus, or visiting a location that is only supposed to be available for whites).

"Truly smart people look at what has already been proven to work, and then follow that example as closely as possible."

Non-violent protest has indeed been proven to work.

"So, give me examples of how individuals have changed society for the better by changing its laws through promoting apparent dishonesty in the eyes of the vast majority of their society."

The people you listed seem to fit the bill. The public perception of pirates may be a little bit different (thieves), but the point remains the same.

Education is the only means to get people to realize this. Stopping piracy altogether (not that normal people would notice, anyway) would only make pirates appear more dishonest (why would they stop doing something if they believe that it is not harmful), or just have no effect at all. Martin Luther King didn't just sit back and obey the law, or nothing would have changed.

Re:We need scholars to tell us that?

[ffreeloader]

What would that be? I'm pretty sure that they used illegal (or at least frowned upon), non-violent methods to get their point across (such as not moving to the back of the bus, or visiting a location that is only supposed to be available for whites).

I'll just focus on this for now for it goes to the heart of the matter.

They made sure everything they did was aboveboard and beyond reproach in the eyes of the general public. They made sure they didn't appear dishonest in any way. They knew that would be used by their enemies to smear them with the accusations of dishonesty and immorality. They understood that any perception of dishonesty would hurt their cause.

Your tactics set you up to be accused of dishonesty right off the bat. It destroys any possibility of the general public seeing justice in your arguments.

That's how Ghandi's and MLK's tactics differ from yours. They truly practiced civil disobedience in that they protested in public places with the authorities all around them while literally putting their lives on the line. They followed the law in their protests because if they didn't they would have been arrested immediately and their marches broken up.

You do nothing of the sort. You break the law as your protest, and you do it, not on the courthouse steps, but away from the cameras, away from public scrutiny.

From what I can see you really don't care if the law is changed or not. You don't believe it can be changed, so you're not even going to try. You're just going to keep on breaking it. That's a completely ineffective tactic and anyone who believes they have a lost cause to begin with will never change anything. You've lost before you've even started because of your own attitude.

Re:We need scholars to tell us that?

[cheekyjohnson]

"From what I can see you really don't care if the law is changed or not."

More assumptions. As a pirate, of course I do. It's silly to think otherwise.

"You don't believe it can be changed, so you're not even going to try."

I never said that. I said that I believed the only way that it can be changed is by enlightening people. It won't be easy due to the fact that people believe that pirates steal the single most important object in existence: money. They don't see the act of piracy as a right. They see it as thievery. It also isn't nearly widespread enough for people to even care. Not many people care about changing the law anymore, as all they care about is their little lives. As I said before, ceasing to commit acts which are already practically invisible to the public in the first place won't do much of anything other than cut off sources of free education and entertainment from many people.

Re:We need scholars to tell us that?

[ffreeloader]

Do you really think piracy is invisible and as such means no one knows about it? And do you really want to change things when you have consistently claimed throughout this conversation that nothing can be done about the situation? Your attitude is one of someone who's already defeated. That's not a surprise though as I've had this same conversation several times here on /. and everyone that's taken your position has given the same responses you have.

You admit your cause can't succeed in the way you're pursuing it, but yet don't really look at alternative strategies. Single individuals have started movements that have changed laws here in the US several times. They figured out how to get publicity and how to present their case convincingly in ways that not only didn't alienate the general public, but actually gained support for their cause. Several grade school kids have individually raised awareness and made an impact on society on issues they were passionate about. Some of them have raised millions of dollars to fund fights against what they see as wrong.

Why can't you guys do the same? Do you just not feel as passionately about your cause as you claim you do? Or, is your cause just a convenient justification for your behavior?

Re:We need scholars to tell us that?

[cheekyjohnson]

"Do you really think piracy is invisible and as such means no one knows about it?"

No, but the chance of a random person noticing that someone is a pirate is slim to none.

"And do you really want to change things when you have consistently claimed throughout this conversation that nothing can be done about the situation?"

I don't believe I said anything of the sort.

"and everyone that's taken your position has given the same responses you have."

Sounds familiar.

"Single individuals have started movements that have changed laws here in the US several times."

Yes.

"Do you just not feel as passionately about your cause as you claim you do?"

I do, but I can't speak for others. I really just don't think that trying to get every pirate in the world to stop pirating things is necessary or will even help. You can't judge an entire movement by a few people who won't listen. The real answer is education and getting people who won't be corrupted by a few pieces of paper into power.

Re:We need scholars to tell us that?

[ffreeloader]

I do, but I can't speak for others. I really just don't think that trying to get every pirate in the world to stop pirating things is necessary or will even help. You can't judge an entire movement by a few people who won't listen. The real answer is education and getting people who won't be corrupted by a few pieces of paper into power.

Who said anything about getting all pirates to stop pirating? What you do need is to have the group of people doing the advocating for change stop all perceived dishonesty and don't let anyone officially join the group who is still pirating software.

The education can only be done effectively by people who aren't seen as dishonest. Otherwise what you have to say will be ignored because it will be seen as self-justification, and your opponents will use the fact that you're breaking the law to smear you.

Yes, you probably need some honest politicians to work with, but Ghandi, MLK, and the other individuals who have made a difference, succeeded because even dishonest politicians bow to public pressure when that pressure comes from a large enough segment of the population. They will jump on a bandwagon if it makes them look good. Never underestimate the power of self-interest, and an opportunity for self-promotion, in a politician.

Re:We need scholars to tell us that?

[Sally Forth]

Ah, kind of like how Obamacare contained a mandate, not a tax, when it was passed while circumventing the controls for creating new taxes, but it's a tax, not a mandate, when the mandate's constitutionality is questioned in court?

Yeah, the redefinition road is par for the course with Obama.

Scholars, you say?

[betterunixthanunix]

When was the last time the president -- any president in recent memory -- ever listened to what scholars had to say, except when what they say supports his policy?

Re:Scholars, you say?

[idiotnot]

Pretty much all of them, when consulting about what materials are covered by Executive Privilege. :-)

Re:Scholars, you say?

[SuricouRaven]

All presidents listen to schoolers. They are just very selective in which schoolers they decide to listen to.

Re:Scholars, you say?

[MyLongNickName]

Not the above AC... but he is right except for the "dipshit" part.

Anyone actually find the list of law profs?

[Orga]

I keep seeing prominent law professors mentioned but I have been unable to find the actual list through multiple links to the article.

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.

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:Can we think rationally here?

[Surt]

Sadly, nothing is going to change ... we're too far down the path of central control to escape without external intervention already. So our best bet is probably for the chinese army to liberate us.

Re:Can we think rationally here?

[IndustrialComplex]

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?

As soon as you figure out a way to keep the nearby city with a population of 1,000,000+ deciding that my area with a population of 2,000 isn't going to be their new landfill site, I'll be right there with you.

Re:Can we think rationally here?

[Surt]

The trunk has powers of taxation, and can do plenty to stop it, like jailing the people involved.

Re:Can we think rationally here?

[TheoMurpse]

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?

Direct democracy would be a categorical disaster for the US. How in the world do you think the average person is even remotely qualified to opine on 99.9% of issues that come before the federal government? Not just because the issues are complex, but because no one has the time to learn about the issues!

We have a republic because we elect people to dedicate their time to understanding the issues. Sure, they don't always (hardly ever?) do it, but we could have a republican government with a law banning personal hygiene and I'd still rather live in such a republic than any direct democracy.

Not authorized.. like so often..

[xnpu]

Good to see someone stand up.. but really? now? So many laws in US are unconstitutional. Not surprising, considering the supreme court is a federal one and the states have turned in to cute little kittens too afraid to use their powers to correct the feds.

Recommended reading: nullification by thomas e. woods. (Please read it before saying it sucks.)

Re:Not authorized.. like so often..

[Anonymous Coward]

If you don't like the current arrangement of power between the federal and state governments, I happen to be a recruiter for the Army of the Confederate States of America. Just sign your name on the line, and you too can join the proud ranks of men who have a 6th grade social studies comprehension of what the Constitution means and want to fight a war that ended 135 years ago! You will receive a minimum of two copies of the Confederate flag (please display them prominently and publicly) and one hat, emblazoned with the same flag (wear at all times). Please note that joining our ranks will require that you hate minorities, anybody who lives north of the Mason-Dixon line, and change.

Recommended reading: The original Articles of Confederation, which failed primarily due to the lack of a strong national government, and any Con Law textbook, which will give an actual nuanced view of the 10th Amendment (and, of course, all of the rest of the Constitution), instead of "grr, federal government baaaad".

(And yes, before anybody starts up, the Civil War was about friggin' slavery. The fact that the Southern economy was based on slavery means it was STILL ABOUT SLAVERY. When 4 out of the 11 states specifically reference slavery in their declarations of independence, and the CSA VP calls slavery a "cornerstone" of the new government, it's about slavery. It wasn't the only reason, but it was the primary one. ...god, I want to move North.)

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:Executive Agreement vs Treaty

[jonwil]

"international obligations" didnt stop the last guy ripping up various arms control treaties and pushing ahead with missile defense (even though the Russians objected)

Re:Executive Agreement vs Treaty

[dwillden]

But an "Executive Agreement" what ever that is has no force of law. At most it's equal to a congressional resolution.

And any attempt to impose this by fiat as an Executive Order (which does have standing) will quickly be shot down.

Re:Executive Agreement vs Treaty

[Nidi62]

Not true. An executive order is treated as law, but only so long as the president that issued it remains in office. It is essentially an Executive Order with a built-in sunset clause.

Re:Executive Agreement vs Treaty

[Nidi62]

"international obligations" didnt stop the last guy ripping up various arms control treaties and pushing ahead with missile defense (even though the Russians objected)

And look what that (among other things) did for our reputation internationally.

Re:Executive Agreement vs Treaty

[dwillden]

You defined an Executive Order as an Executive Order, which, as you noted, if not continued by the next president does indeed sunset with the end of a President's period in office. But find a definition of "Executive Agreement." I've never seen it used before in our system of government.

If your reply was to my comment that it would be shot down. I guarantee that any executive order imposing ACTA would be quickly challenged and declared unconstitutional, as it would be attempting to impose a treaty while avoiding the constitutional requirement for Senate ratification.

Re:Executive Agreement vs Treaty

[Attila Dimedici]

The country that those arms control treaties were with no longer existed at the time. The arms control treaties that George W. Bush ignored were signed with the Soviet Union. The Soviet Union no longer exists.

Copyright Law

[Anonymous Coward]

I wouldn't put much hope in the senate. Copyright is a subject on which democrats and republicans are equally assholes.

Re:Bad move

[Anonymous Coward]

Ack, 4th and 5th, sorry.

Wait for the Supreme Court Case

[jasenj1]

Unless the Republicans take control of the Senate in a few days, the Senate is unlikely to question the President's authority. He can call it an Executive Agreement, or whatever he wants; a Senate controlled by his political party will most likely let him do what he likes. Then these law professors and whoever can file a law suit of some sort, it can wend its way through the court system for several years until the current players are out of office, and eventually 5-10 years (or more) from now the Supreme Court can decide if ACTA is really a Treaty that requires Senate approval or not.

We are not a nation of laws, but a nation of political parties. Whichever party is in charge will pass whatever laws they want regardless of Constitutionality.

Cynical? Just a bit.

- Jasen.

Re:Wait for the Supreme Court Case

[shentino]

I would rather say you are optimistic, because this is positively rosy compared to how the future is going to wind up.

Re:Wait for the Supreme Court Case

[langelgjm]

Even if Republicans take control of the Senate, it won't matter for ACTA. Intellectual property policy is one of the few truly bipartisan issues in Washington. ACTA is just not that big of a political issue for Republicans to want to halt for the purpose of obstructing Obama, and Republicans would have their own reasons for supporting it. There are only a couple of people who have been critical of ACTA in the Senate... Bernie Sanders, Sherrod Brown. Aside from that, not many other people are paying attention to it.

Another indication it's bipartisan - remember, ACTA talks were started under the Bush administration. Then they continued, pretty much without a hitch, under the new Obama administration. Honestly that's pretty impressive, there aren't too many issues where you get that kind of continuity with a party change.

Re:Wait for the Supreme Court Case

[jfengel]

a Senate controlled by his political party will most likely let him do what he likes.

I admire your cynicism, but you need to apply a double layer of it here. The Democrats in the Senate have a miserable track record on doing what the President wants. They encompass a massive ideological range from Bernie Sanders (an independent who left the Democrats because they were too conservative) to Joe Lieberman (who left because they were too liberal).

The President had a very hard time getting them all to agree, and legislation he proposed was heavily compromised by the time it was done. If the Democrats had unified to pass one agenda they would likely be in less of a mess now. As it is, they're all running away from what accomplishments they did make because the compromised versions are less coherent and easily attacked.

I'm speaking politically here, not in terms of what would be the best legislation. Regardless, you need to be extra-cynical: the Democrats in Congress will not automatically pass it.

Besides, it takes a 2/3 vote. If 59 Democrats were for it, 41 Republicans would be automatically against it, even if it were the "Puppies Are Cute" international treaty.

Independents may think they're cynical, but nobody's got cynicism like a Democrat ;-)

Re:Wait for the Supreme Court Case

[SuricouRaven]

The republicans support ACTA just as much - they wouldn't want to draw attention to it by objecting. They'll just find some other policy of his to disagree with. Most likely his desire to allow homosexuals to serve openly in the military. That one has sex in it, which is sure to grab the headlines.

Re:Wait for the Supreme Court Case

[dwillden]

But it requires a 2/3 majority vote to ratify. President Obama has a difficult time even getting the 60 votes needed to end a filibuster, let alone an additional 6 votes to reach the 2/3rds margin required under the Constitution.

Now that's not denying the fact that many republicans may support it, but with the current Tea Party movement kicking out many incumbents, that becomes less likely.

And we have a Supreme Court that could even then nullify it on constitutional grounds. We have many problems and flaws in our system of government, but unlike most the rest of the world, those problems do not include recognizing international law as superseding our Constitution.

Re:Wait for the Supreme Court Case

[brainboyz]

I agree 100%, and thank you for giving me a great way to explain it.

Re:Wait for the Supreme Court Case

[dkleinsc]

Well, you're missing the cases in which both parties get together to screw the little people over, such as the USA Patriot Act (the major reason I seriously hope Russ Feingold keeps his seat).

Re:Wait for the Supreme Court Case

[Surt]

The democrats will pass it, and so will republicans. They are in pretty universal agreement on strict copyright law, and it would likely pass with 95+ votes.

Re:Wait for the Supreme Court Case

[DragonWriter]

Unless the Republicans take control of the Senate in a few days, the Senate is unlikely to question the President's authority.

The Republican Party isn't exactly known for favoring either limits on draconian measures to support copyright holders exclusive rights or limits on executive authority in international affairs, so, unless you are just hoping that they'll decide that this particular issue is something to hold up on the basis of "Obama wants it so we must oppose it", I wouldn't put much hope in Republicans being more likely to stop this than Democrats.

In fact, given that this agreement is one that was initiated by a Republican Administration that the main thing that Obama appears to have done is accept some foreign demands to reduce the scope, expecting Republicans to scuttle the deal seems to rest on the assumption that they'd rather have none of what they want in this area than half of what they want. Which, if it was domestic law on a matter that it would be easy to rally the public around, might make some sense since they could use it as a campaign issue more if there was no progress than slight progress and then use increased legislative clout to get everything, but since its an international agreement where that kind of tactic doesn't seem likely to work and scuttling the deal isn't likely to get them a deal that does more of what they want, that doesn't seem all that likely.

Re:Wait for the Supreme Court Case

[sac13]

Unless the Republicans take control of the Senate in a few days, the Senate is unlikely to question the President's authority. He can call it an Executive Agreement, or whatever he wants; a Senate controlled by his political party will most likely let him do what he likes. Then these law professors and whoever can file a law suit of some sort, it can wend its way through the court system for several years until the current players are out of office, and eventually 5-10 years (or more) from now the Supreme Court can decide if ACTA is really a Treaty that requires Senate approval or not.

Actually, that's the nice thing about the senate (if there is such a thing). It requires 2/3 to ratify a treaty. Since the D's only have 59 seats, that means they at least need 8 R's to make that sort of move.

Of course, on this particular issue, I'd be surprised if it got less than 85 votes anyway... Both sides are owned by the "intellectual property" camp.

At least conceptually, this sort of thing is a good example of why supermajority requirements are a "good" thing... actually, everyone loves it when there's something that they don't want passed up for a vote. It's only when the other side is in the simple minority that people start bitching about filibusters and such...

Re:Wait for the Supreme Court Case

[swillden]

And we have a Supreme Court that could even then nullify it on constitutional grounds.

Wouldn't even require the Supreme Court, and whichever federal court shot it down wouldn't have to appeal to the Constitution.

An Executive Agreement has the same legal standing as an Executive Order -- meaning it can only address things that are within the president's scope of authority. If the agreement were about, say, the positioning of US air craft carriers, then the president could sign that because he has the authority to order our air craft carriers to go wherever he likes. He can also tell various federal bureaucracies what to do. But when it comes to defining copyright and patent terms, the president has no authority.

I guess that's sort of an appeal to the Constitution, in that it goes back to the constitutional division of powers.

If Obama signs this, I expect it to get challenged and the first federal court to strike it down immediately. I doubt the Supreme Court would ever see it, either because the government would be smart enough not to appeal the first ruling or because the Supremes would just decline certiorari and let the lower court ruling stand.

Re:Wait for the Supreme Court Case

[Tycho]

Granted, ACTA also must exist in a "final" form for anything to happen. I'm not sure I've heard anything concrete, plausible, or credible about the existence of ACTA in the first place. When I might be concerned, but the amount of "secrecy" involved with ACTA as well as the required size of such an operation doesn't seem to be a conspiracy that is within the range of people. So a more probable conclusion needs consideration: the bits and pieces of information that are being attributed to ACTA are no more than idiots leaping at shadows.

There is also the matter of the "patriots" and such that seem to feel quite strongly on certain issues and conflate these issues with the Constitution. However, the number of /. posters that don't seem to know about the two-thirds Senate vote requirement for ratifying treaties appears to be astounding. Granted, this is not as astounding as the number of "patriots" that don't actually understand how the Constitution has been interpreted, which is important, as opposed to what these same individuals would like it to mean, which is irrelevant.

Re:Bad move

[gtall]

I think it comes down to far can an executive order be enforced. What legal power does it have were a case to be brought up in court. I cannot imagine it would stand up very well. If that is the case, does it really matter whether Obama signs it or not?

Re:Bad move

[xnpu]

Indeed. Source please. It makes no sense at all. Anything not in the constitutions can be nullified by any state who wishes to do so. The only way treaties can be superior is if it says so in the constitution, which it doesn't.

Of Course

[mbone]

Of course this is a treaty and of course it needs Senate approval, which it is highly unlikely to get.The attempt to do an end-run around this obligation is, frankly, sleazy and sufficient reason to oppose ACTA all by itself, even if all it did was support Mother's Day.

Re:Of Course

[Surt]

Unlikely to get? If ACTA goes to the Senate it will pass with 95+ votes. Everyone in both parties supports strict copyright enforcement.

Re:Of Course

[mbone]

Everybody supports all sorts of things in principle, but, in the country I live in, Republicans in practice rarely support Democratic initiatives, which this now is.

And, it needs a 2/3 vote, so it wouldn't take much opposition to stop it.

Re:Of Course

[Surt]

They don't support it on principle, they support it on financing, and since this was started under GWB, I'm sure they can find a way to explain voting for it.

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.

"Scholars say"

[MikeRT]

People shouldn't trust "scholars" on this subject. Just read the Constitution, it's right there. Here's a list of some great reasons why "legal scholars" are full of shit:

1) The 2nd amendment is composed of two halves: a prepositional phrase (the part about a militia and a free state) and legal language. Scholars, for years, have argued that a damn prepositional phrase, which only served to explain some of the thought process the founding fathers had, trumps the actual command enforced against Congress (the right to keep and bear arms shall not be infringed).

2) Legal scholars incorporated the first amendment against the states through the fourteenth amendment's privileges and immunities clause claiming it was as natural as breathing. For over a century they refused to acknowledge the same with the 2nd amendment. Ironic, since the first amendment explicitly mentions Congress in who shall not do the prohibiting, while the second amendment is already worded in such a way that it fits neatly against the states as well (as it does not mention Congress, in favor of a blanket prohibition).

3) Dred Scott.

4) Kelo v. New London's giant ass-raping of the public purpose clause of the 5th amendment.

Re:"Scholars say"

[TheoMurpse]

You're making an awfully damn fallacious assumption that all scholars agree with Dred Scott, Kelo, and one interpretation of the 2nd Amendment.

And if you can't understand how it is even plausible that A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed couldn't possibly mean the right to bear arms is guaranteed because [and, therefore, only so long as] a well regulated militia is necessary to the security of a free state, then I don't really care to give your opinions any consideration, as you seem unreasonably rigid. The Constitution is uncommonly terse, so it seems "A well regulated . . . free State" is an anomalous superfluity.

(For what it's worth, I don't think the Second Amendment applies only to militias, but I can at least see how reasonable people can disagree on that fact.)

Re:Bad move

[Colonel Korn]

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

Mod parent up, GP down, case closed.

Re:Bad move

[dwillden]

This court is most definitely NOT in his pocket. He's been able to nominate two justices, but the replaced justices were leaned heavily to the left (even if one of the two was appointed by a republican president) and their selection did nothing to change the balance which is currently 5-4 in favor of a more conservative viewpoint. Thus the Heller and McDonald decisions affirming the right of the individual to keep and bear arms. A court in Obama's pockets would most certainly not have ruled that way.

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.

I Bet the Senate Gets THAT Done

[Greyfox]

While the Senate has lately been a cock-blocking do-nothing institution, I have a feeling they'd put aside party differences to ratify that document. Both sides are suckling at the teats of Big Entertainment, something a quick browse through Opensecrets.org will prove conclusively. So if you're planning to look to the Senate to shut that thing down, you're in for a big disappointment.

Re:Bad move

[Anonymous Coward]

And here

Ratified Treaties vs. Executive Agreements

[I_Voter]

Sonny Yatsen wrote:
Nowadays, Executive Agreements are the norm in foreign policy and not Treaties.

A treaty that is ratified by 2/3rds of the Senate gains constitutional authority. Among other things it allows the federal government to legislate in areas which would otherwise fall within the exclusive authority of the states.

My interest in this subject stems from being a democracy activist. Most U.S. states have effectively outlawed private member based citizen parties.
SEE Quote from 1927

"Here in the last generation, a development has taken place which finds an analogy nowhere else. American parties have ceased to be voluntary associations like trade unions or the good government clubs or the churches. They have lost the right freely to determine how candidates shall be nominated and platforms framed, even who shall belong to the party and who shall lead it. The state legislatures have regulated their structure and functions in great detail."

Source: American Parties and Elections,
by Edward Sait, 1927 (Page 174)
Quoted from: The tyranny of the two-party system,
by Lisa Jane Disch c2002

George H.W. Bush signed the Copenhagen Document of the Helsinki Accords that states in part: (7.6) - respect the right of individuals and groups to establish, in full freedom, their own political parties or other political organizations and provide such political parties and organizations with the necessary legal guarantees to enable them to compete with each other on a basis of equal treatment before the law and by the authorities;... However it has not been ratified by the Senate.

Ref. Treaty Clause
One of three types of international accord.
http://en.wikipedia.org/wiki/Treaty_Clause

In Missouri v. Holland, the Supreme Court ruled that the power to make treaties under the
U.S. Constitution is a power separate from the other enumerated powers of the federal
government, and hence the federal government can use treaties to legislate in areas which
would otherwise fall within the exclusive authority of the states.

Re:Ratified Treaties vs. Executive Agreements

[DragonWriter]

A treaty that is ratified by 2/3rds of the Senate gains constitutional authority. Among other things it allows the federal government to legislate in areas which would otherwise fall within the exclusive authority of the states.

Which is pretty much irrelevant in the case of ACTA, since Copyrights are an enumerated federal power, so federal authority to legislate to protect copyrights is already established and the Treaty Power isn't needed to overcome exclusive authority of the states in this area.

Re:Ratified Treaties vs. Executive Agreements

[I_Voter]

Yes I mostly agree. My information was mostly to help clear up confusion about whether a treaty overruled the constitution or not. I guess if there was no national law, then new state laws might prevail. However, that is just a guess.

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

Wise men say it needs Senate disapproval

[Mathinker]

"Scholars Say ACTA Needs Senate Approval" : Wise men say it needs Senate disapproval.

It's a sign!

[Wowsers]

The US President can sign ACTA if he likes, but it doesn't mean the other 200+ countries have to slit their throats and sign ACTA - just to help out the USA's sinking economy.

Re:Bad move

[DeadDecoy]

Confirmed. It's pumpkin/jackolantern goatse, but goatse nonetheless.

Re:But public approval, not needed at all!

[MadKeithV]

You elected the senate. They are your "public approval".

Re:Treaties are not above to the US constitution B

[xnpu]

The original poster said Treaties are superior to the CONSTITUTION, not state laws.

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:Bad move

[TheEyes]

This court is most definitely NOT in his pocket. He's been able to nominate two justices, but the replaced justices were leaned heavily to the left (even if one of the two was appointed by a republican president) and their selection did nothing to change the balance which is currently 5-4 in favor of a more conservative viewpoint. Thus the Heller and McDonald decisions affirming the right of the individual to keep and bear arms. A court in Obama's pockets would most certainly not have ruled that way.

Or, for that matter, Citizen's United. Sure, Obama may not have entirely objected to a "documentary" which openly mocked and derided Hilary Clinton, but he certainly wouldn't have approved of a ruling that says large corporations--which heavily favor Republicans--can spend freely and anonymously on electioneering.

Re:signing vs ratification

[cheekyjohnson]

"What really sucks is the influence of the public"

The public having influence? What world do you live in? All they have is their measly votes.

Re:But public approval, not needed at all!

[cheekyjohnson]

They can spout whatever they like at election time, but that doesn't mean they have to follow through with it. In reality, if the government is allowed to continue making so many decisions without the consent of the people, this blatant corruption will continue.

Who cares?

[rcharbon]

Do you really think that the Senate,the same Senate that passed the Patriot Act and DMCA, won't happily pass ACTA too?