U.S. Senator Wyden Raises Constitutional Questions About ACTA

bs0d3 writes "In a written letter which can be found here, U.S. Senator Ron Wyden questions President Obama's authority to sign ACTA without Congressional approval. 'It may be possible for the U.S. to implement ACTA or any other trade agreement, once validly entered, without legislation if the agreement requires no change in U.S. law,' Wyden writes. 'But regardless of whether the agreement requires changes in U.S. law ... the executive branch lacks constitutional authority to enter a binding international agreement covering issues delegated by the Constitution to Congress' authority, absent congressional approval.'"

Comments

I actually agree with the Democrat here

[DesScorp]

Trade agreements are a form of treaty, and treaties have to be voted on by the Senate. The Constitution does this for a good reason, preventing the President from unilaterally committing the United States to international agreements. Wyden is right on this. And ACTA is clearly a trade agreement. Send this to the Senate first for a vote.

Re:I actually agree with the Democrat here

[AmElder]

I disagree, ACTA is not, at heart, a trade agreement at all. It's a law enforcement treaty focusing on intellectual property. It aims to harmonise the enforcement measure with regard to intellectual property across the signatories. There's evidence for this in every portion of ACTA, but you just have to look at the headings for the two substantive chapters:

• Chapter II: Legal Framework for Enforcement of Intellectual Property Rights
• Chapter III: Enforcement Practices

This doesn't diminish your point or Senator Wyden's. To quote an excellent article by Sean Flynn, ACTA would affect:

"evidentiary standards required for property seizures and criminal prosecution. It would affect state common law, where many trade secret obligations reside. And primarily it would affect the evolution of federal law, including the large federal statutory enactments on patents, copyrights and trademarks."

The president doesn't have any enumerated (or un-enumerated) powers that cover this territory, indeed, the power to regulate intellectual property, I understand, is an enumerated power of congress (Article I, sec 8 of the constitution). Therefore the agreement should be submitted to congress by the president and more specifically by the USTR under his authority.

Re:I actually agree with the Democrat here

[DesScorp]

You assume the Senate is functioning...

But what about cases where it is not, like now?

The Senate is functioning as it was designed to, as a break on both the House and the Presidency. The Senate was never supposed to be a rubber-stamp, for either the President or the House.

  The whole point of a Senate is to have a group of men to take a deep look at what the House (which was always supposed to be the popular voice of the people) passes in the heat of the moment, and it was designed to prevent the President from becoming a Caesar. This is why treaties have to be voted on by the Senate, and why the President's appointments to his cabinet and to SCOTUS have to be reviewed, scrutinized, and voted on by the Senate. This is also why Senators were not popularly elected when the Constitution was written, but appointed by state legislators. The whole idea of the founders was to put a second party into the Congress that was indirectly responsible to the people (via their elected state houses), but not popularly elected, and thus less subject to the passions of the moment. I used to support popular election of Senators, but the older I've gotten, the more I think the founders had it right in the first place, and that the 17th Amendment was a mistake.

Also, if you want things to pass easier in the Senate... the way they do in the House, with a simple majority vote, well, the way is clear here. Just demand that the Senate drop their unique rules requiring 60 votes. That rule is not in the Constitution, but an internal Senate rule (which the Constitution permits).

Just be careful before you demand this. Because if the Senate goes to simple-majority vote, so can future Senates... ones where the other party is the majority.

Re:I actually agree with the Democrat here

[eepok]

I believe the person to whom you reply would contest that your interpretation of the goings-on in Congress is naive. While everyone would agree with the principal as you state:

"The whole point of a Senate is to have a group of men to take a deep look at what the House (which was always supposed to be the popular voice of the people) passes in the heat of the moment," ... few people believe that's what actually happening. We have seen *many* acts and bills passed in the heat of the moment and it's hard to argue that our Senators are as much philosophers as they are self- and party-interested tacticians.

People don't complain about the difficulty of things passing in any house of Congress nearly as much as they do the severe biases that allows some things to pass and others not.

Re:I actually agree with the Democrat here

[Obfuscant]

The whole idea of the founders was to put a second party into the Congress that was indirectly responsible to the people (via their elected state houses), but not popularly elected, and thus less subject to the passions of the moment.

The reason they weren't elected, and why there are two for every state, is that they were intended to be the body that looked out for the interests of the country as a whole and not the specific interests of the state they came from or the voters therein. Ratification of treaties falls squarely under that baliwick, since treaties tend to have an impact on the entire country and not just one or two states. Ditto federal appointments.

The 17th amendment was a big mistake, because now all we have are people looking out for their own skins and getting re-elected instead of looking out for the US. This has turned the Senate into nothing more than a posh version of the House.

Re:I actually agree with the Democrat here

[blair1q]

The whole point of a Senate is to have a group of men to take a deep look at what the House (which was always supposed to be the popular voice of the people) passes in the heat of the moment, and it was designed to prevent the President from becoming a Caesar.

Well, no. The point of Congress and the judiciary is to keep the President from becoming a Caesar. The point of the Senate was to give property a voice in Congress to go with the voice of the people over in the House. About a hundred years ago, we got wise to that and changed Senate appointment to a democratic vote of the people, so now it's just a harder way to get into Congress and attracts those who have enough political clout they could wipe their nose on a House seat. They tend to be the more experienced types, and, some time in the past, more deliberate. So it got that reputation as a body.

Now, however, owing to the resurgence of pettiness as the primary means of political discourse, it's indistinguishable from the House except in the cost incurred in stealing the votes necessary to enter it.

Re:I actually agree with the Democrat here

[geekoid]

Bush broke the law, and people died.

Obama graciously said he didn't think he deserved the medal. HOWEVER, he immediatly started taknig action to improve our international relations.

So, don't compare the two.
"George Washington's advice and STOPS making treaties, "
wtf are you talking about? Washington signed several treaties.

Re:I actually agree with the Democrat here

[sconeu]

I read somewhere that the primary function of a Senator from Oregon is to drive all the rest of the Senate crazy.

Note. This is a *GOOD* thing.

Thank you, Senator Wyden.

Re:I actually agree with the Democrat here

[turgid]

Obama for doing nothing gets a Nobel prize, Bush gets an arrest warrant.

This was a message from the rest of the world to the USA: thank you at last for electing a leader with a shred of humanity who isn't hell-bent on destroying the rest of world for America's short term gain and who isn't interested in making enemies of foreigners simply for being foreign.

What's so hard to understand about that?

The Constitution?

[ShakaUVM]

The Constitution? Pfft.

We've moved past that a long time ago.

Asset forfeiture, warrantless search and seizure, restrictions on the freedom of the press on the internet...

Re:This President...

[bryan1945]

Yeah, except you didn't have to listen to anything Jobs said. Obama says you have to buy insurance, better buy insurance or you get fined. But I do see you underlying point, the difference being between a toddler whining "Give me cookies" and a 6'10" thug with a gun saying "Give me your money."

(oh, can't wait to feel the heat on this one)

Re:This President...

[Grishnakh]

No, he's not. He's a pawn for his corporatist handlers, just like Bush was.