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?

[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?

[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?

[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?

[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?

[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?

[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?

[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?

[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?

[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?

[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?

[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?

[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?

[ffreeloader]

How can he bypass Congress to implement it?

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

Re:We need scholars to tell us that?

[blueg3]

How did the patriot act pass?

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

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.

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?

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?

[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: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.

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.

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.

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

[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

[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: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

"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: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.)

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.

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.

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