ACTA, Executive Agreements, and the Bricker Amendment

by Stephan Kinsella on October 16, 2011

For months now we’ve warned that the Anti-Counterfeiting Trade Agreement (ACTA) was on its way to being approved. This agreement is intended to strengthen international patent and copyright protection and to fight piracy and counterfeiting–for example, by imposing on other countries American DMCA-style provisions that prohibit technology that can be used to “circumvent” DRM technologies. As science fiction author Corey Doctorow observed, ACTA is a “radical rewriting of the world’s Internet laws taking place in secret without public input.”¹

As noted in my post Progress on ACTA, Public Knowledge president Gigi Sohn’s has some eye-opening remarks about ACTA in a Federalist Society panel discussion, Federalist Society’s Intellectual Property Practice Group National Lawyers Convention Panel Online, from 1:20:10-end. Sohn explains that normally the subject matter of ACTA would be negotiated in an open manner under the auspices of WIPO; but it was negotiated instead by the USTR as a trade agreement so that it could be done more quickly, and in secret.

In any case, the US and several countries signed the agreement earlier this month.² Also President Obama signed the agreement on behalf of the US, there are no plans to submit it to Congress for congressional approval.³ The Obama administration has long argued that the President has the authority to “implement” ACTA by “Executive Agreement” alone, and that Congress’s ratification is not needed, because ACTA is already fully consistent with current US law and would not require Congress to enact implementing legislation.

As others have pointed out, however, there are several problems with this argument. First,

The regulation of intellectual property and of foreign trade through international agreements is an “Article 1” Congressional power. That means that the executive cannot bind the US to agreements in this area without congressional consent. The President lacks the authority to enter a “sole executive agreement” in this area, even if the agreement does no more that require the US to continue follow the contours of current US law. That is because the agreement purports to bind the US not to change its law, and changing US law in this area is a congressional power. This point has been made repeatedly by US law professors with no effective rebuttal. ((ACTA to Be Signed – But Can it Enter into Force?, citing Submission to USTR of 30 Law Professors, Sean Flynn, ACTA’s Constitutional Problem, editorial by Creative Commons founder Lawrence Lessig and Bush AAG Jack Goldsmith, article by Yale Law Professor Oona Hathaway and Berkeley Law Professor Amy Kapczynski, and Mike Masnick’s apt description of the issue.))

Second, if ACTA gets the minimal six ratifications it needs, then it is a treaty that could bind the US under international law to have its municipal law (e.g. intellectual property and foreign trade) comply with ACTA’s terms. “This triggers the possibility of trade sanctions for non-compliance with ACTA, even though Congress never entered into the agreement.”

Further, it appears that ACTA is not completely consistent with US law anyway.⁴

We are seeing the danger here of the use by the President of “executive agreements” as a substitute for treaties, but in a way that binds the US under international law and that might even effectively amend the Constitution via the Supremacy Clause, which reads:

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, anything in the constitution or laws of any state to the contrary notwithstanding.

The treaty clause to the Constitution ostensibly requires the approval of a two thirds vote in the Senate, but executive agreements have been used as a way around this–to enter into commitments binding under international law–treaties–without getting Congressional approval. And because treaties are “the supreme law of the land,” the fear is that the President could in effect amend the Constitution by simply signing an executive agreement with terms contrary to other parts of the Constitution. This is one reason the Bricker Amendment was debated and almost passed in the 1950s.⁵ Too bad it failed.

[Mises]