Obama Administration To Use ACTA Signing Statement To Defend Why It Can Ignore The Constitution In Signing ACTA

by Mike Masnick, Techdirt

While the EU, Mexico and Switzerland are apparently not yet ready to sign ACTA, a lot of others are apparently planning to sign the document this weekend, despite questions about its legality. Because of that Sean Flynn has written up an analysis suggesting that, even if the document is signed it's not clear that the treaty can actually go into effect anywhere. Whether or not that's accurate, what I wanted to focus on was a separate tidbit of info suggesting that, while the Obama administration is very much aware of the very serious Constitutional questions raised by the signing, it's going to issue a "signing statement" that defends its right to ignore the Constitution here.

In the US, there is no plan to constitutionally ratify the agreement. Indeed, this will likely be the main focus of the US signing statement. The document will be an argument to Congress that the executive can pass this agreement alone – legally binding the US to a trade agreement without no congressional authorization – because, according to the Executive, ACTA is fully consistent with current US law.

Thus, the administration argues that there doesn't need to be a Senate review because no laws will be changed. This is, of course, wrong, since ACTA (1) does not align itself fully with US laws and (2) massively constrains Congress's ability to change certain intellectual property laws in the future. Furthermore, this basic argument is ridiculous. The President is only allowed to sign executive agreements that cover items solely under the President's mandate. Intellectual property is not. It's clearly given to Congress under the Constitution.

Of course, I'm quite curious as to how the Administration, with Joe Biden as VP, can defend this action. After all, as well chronicled, when Joe Biden was still Senator Biden in 2002, he went ballistic against then-President George W. Bush for trying to sign an arms control agreement with Russia as an executive agreement, rather than a treaty with Senate ratification. He actually sent a letter to the President demanding that the agreement be submitted as a treaty for ratification in the Senate. The letter apparently "defend[ed] the institutional prerogatives of the Senate." Of course, if we had any real reporters out there who actually asked the administration real questions, they might question this obvious hypocrisy within the administration. But, instead, expect almost no one to cover this story.

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Posted: Oct 02 2011, 3:59 PM

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