The Doubtful Constitutionality of ACTA as an Ex Ante Congressional-Executive Agreement

Dozens of scholars have written a letter to complain about the constitutional basis for President Obama to ratify the Anti-Counterfeiting Trade Agreement (ACTA).  ACTA, for those who don’t know, is a controversial trade pact designed to tighten domestic enforcement of global intellectual property rules.  The administration originally maintained that it had the authority to join ACTA for the United States as a sole executive agreement, without authorization from Congress or consent by the Senate.  (Many argued that the Constitution did not authorize the president to join ACTA by sole executive agreement – including Larry Lessig and me, here.) The Obama administration has apparently dropped the sole executive agreement argument and now claims that the Congress authorized him to enter into ACTA.  In a letter a few months ago to Senator Wyden, Legal Advisor Harold Koh suggested that Congress had authorized the executive branch to negotiate and conclude ACT in Section 8113(a)(6) of the 2008 PRO-IP Act. While I have not studied the history of statutory authorizations for ex ante congressional-executive agreements (and thus do not know whether thin and abstract congressional nods of the sort found in Section 8113(a) suffice  in other contexts), I find the scholars’ response to this suggestion persuasive:

First, the plain language of Section 8113(a) of the PRO-IP Act does not authorize USTR to bind the U.S. to any international agreement.  Rather, the section merely describes the purposes of a ―Joint Strategic Plan against counterfeiting and infringement, to be coordinated among multiple agencies by the Intellectual Property Enforcement Coordinator (IPEC).  The purposes of the Plan include ―working with other countries to establish international standards and policies for the enforcement of intellectual property rights.  Nowhere in Section 8113 does the PRO-IP Act mention the negotiation of international agreements.  Rather, subsection (f), which describes specific means for ―enhancing enforcement efforts of foreign governments, requires only ―programs to provide training and technical assistance to foreign governments for the purpose of enhancing the efforts of such governments to enforce laws against counterfeiting and infringement.  Read in its context, the language cited by Koh as justifying ACTA does no more than require a multi-agency plan to provide technical assistance to foreign governments.  Indeed, the cited passage is not addressed to USTR. Second, the PRO-IP Act cannot be an ex ante authorization for ACTA because it was not temporally ex ante.  The ACTA negotiation began in 2007.  PRO-IP was not passed until 2008, and was passed at a time Congress was being told that ACTA would be entered as a Sole-Executive Agreement – requiring no Congressional approval at all. The administration did not seek, and Congress has not given, ex ante authorization to bind the U.S. to ACTA.

If this letter is persuasive, the only constitutional methods for the president to enter into ACTA are ex post approval from Congress (thereby making ACTA an ex post congressional-executive agreement) or consent from the 2/3 of the Senate (thereby making it a treaty in constitutional terms). There is a great deal at stake in the required constitutional method for approving ACTA, even if, as the government claims, ACTA requires no change in domestic law.  As Lessig and I explained in the context of a similar argument when ACTA was to be approved as a sole executive agreement:

Binding the United States to international obligations of this sort without congressional approval would raise serious constitutional questions even if domestic law were not affected.  In any event, an anti-counterfeiting agreement . . . could affect domestic law in at least three ways:  First, the noncriminal portions of this agreement that contemplate judicial enforcement can override inconsistent state law and possibly federal law.  Second, the agreement could invalidate state law that conflicts with its general policies under a doctrine known as obstacle preemption, even if the terms are not otherwise judicially enforceable.  Third, a judicial canon requires courts to interpret ambiguous federal laws to avoid violations of international obligations. This means courts will construe the many ambiguities in federal laws on intellectual property, telecom policy and related areas to conform to the agreement.

While there is much at stake here, and while I think the scholars have the better of the legal argument, it is unlikely that a court will rule against the government.  If the matter ever reaches court (which is not certain), the government will rely not only on Section 8113(a), but also on residual power under Article II, as well as what Koh described as a “long line of trade agreements that were similarly concluded by successive administrations.”  Such an argument will be hard for courts to resist, especially in light of the traditional deference that courts give the president in this context, and decisions like Dames & Moore. If I am right about courts, then only Congress or the Senate can protect their constitutional prerogatives.  As the scholars wrote:

If Congress allows the Executive to claim that ACTA was authorized by language that clearly does not authorize the agreement, it will be ceding unprecedented power to the Executive.  Remedying this state of affairs is uniquely within Congress’s province.  Congress, and specifically the Senate, as the Constitutionally recognized chamber with responsibilities for the approval of treaties, should secure from the Administration a public pledge to send ACTA to the Senate as a treaty, or to the Congress as an ex post Congressional-Executive Agreement. Absent a pledge to this effect, we encourage the Committee to hold hearings and to pass legislation that would prevent the United States from binding itself to ACTA without express Congressional consent.