ACTA's Constitutional ProblemSean Flynn
November 15, 2010
Today, the USTR announced finalization of the ACTA text. It explained that, following a final meeting on "legal verification of the drafting," ACTA will "be ready to be submitted to the participants' respective authorities to undertake relevant domestic processes."
And that is where this story begins.
In many of the countries negotiating the agreement, including the EU, the normal procedures for entering a treaty, including consent by the legislative branch, will be used. But not in the US. The USTR has stated repeatedly that ACTA will enter into force in the US as an executive agreement that does not require any congressional role. Thus, USTR argues, the agreement will be binding on the US once Ambassador Kirk, as the US negotiating representative, agrees to it. Congress will not receive the opportunity to review and amend the agreement before it goes into effect, as it would in any traditional international agreement binding on the US. If USTR succeeds in this bold plan, it will dramatically expand presidential power to make law without congressional consent. But this success seems highly dubious. There appears to be no serious constitutional theory that would support USTR's claims. ACTA is clearly unconstitutional as applied to the US.
In a "sole executive agreement," the President binds the US to an international agreement unilaterally - with no formal ex ante or ex post authorization by Congress. This is the form of agreement that the USTR claims can bind the US to ACTA. But this claim is highly dubious because of the "strict legal limits [that] govern the kinds of agreements that presidents may enter into" without some form of Congressional consent.
Because sole executive agreements "lack an underlying legal basis in the form of a statute or treaty," they can be considered binding law in the US only if made within the restrictive set of circumstances in which the President has independent Constitutional authority. "The President cannot make an international agreement that exceeds his own constitutional authority without Congress's assent."
The authority to enter binding sole executive agreements can be most easily and commonly found in the parts of the Constitution that grant the President independent power to act without Congressional participation. Thus, many executive agreements are uncontroversial extensions of the President's independent authority to act as Commander in Chief of the Army and Navy, to "receive ambassadors" from (and thereby recognize) foreign nations, or to issue pardons.
There is also a large number of executive agreements grounded in recent years on the President's general power "to take Care that the Laws be faithfully executed." Under this general authority the administration issues hundreds of sole executive orders on a variety of "mundane" matters.
In a small number of other borderline cases, long historical practice of acquiescence by Congress has been used to justify sole executive action that otherwise appears to implicate congressional powers. This is the case, for example, with over 200 year history of the President unilaterally settling foreign claims and disputes, even in ways that alter the rights of US citizens or require appropriation of funds.
These are the settled cases, and none of them applies to the binding of the US to ACTA. If the agreement was composed only of the kind of coordination and information exchange between customs offices that was the original announced focus of ACTA, then perhaps the agreement could be justified as an incident to the his executive power to manage agencies in their implementation of law. But, as described above, ACTA does much more than that. The information sharing and international cooperation mandates of ACTA make up just a couple of ACTA's 24 pages of text. The majority of ACTA is composed of specific provisions on intellectual property remedies that the legislation of each country must adhere to. This cannot be justified as an implementation of mere executive power. "In the framework of our Constitution, the President's power to see to it that the laws are faithfully executed refutes the idea that he is to be a lawmaker."
Thus, the USTR must be locating the power to bind US legislation to ACTA's dictates to some unenumerated power in the Constitution. Here, of course, the President's case is necessarily weakest.
Claims to unenumerated powers to conduct foreign affairs without congressional participation reached its zenith in the George W. Bush administration. Those in favor of strong executive power argue that extensive unenumerated powers in matters of foreign affairs should vest in the sole discretion of the executive. But "uncertainties and the sources of controversy about the constitutional blueprint lie in what the Constitution does not say." Even the adherents to the strong executive theory accept that the President cannot use a sole executive agreement to usurp lawmaking functions from Congress in any area expressly delegated to Congress by Article I. And that is ACTA's big problem.
ACTA does not deal with issues that lie in the unenumerated lacunae of the Constitution. ACTA is a wide ranging international agreement mandating statutory minimum standards in areas of federal and state law. ACTA standards would place restraints on the development of rules that stem from the Constitution itself, such as in the 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 options available to federal law makers, including the large federal statutory enactments on patents, copyrights and trademarks.
As an agreement setting minimum legislative standards in these areas of intellectual property law and the regulation of IP-protected goods on the internet and in international trade, ACTA directly implicates Congress's Article I, Section 8 powers. These include, most specifically, those to "make all Laws which shall be necessary and proper for carrying into Execution" its powers "To regulate Commerce with foreign Nations" and "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." Other powers could also be implicated, ranging from the power of Congress to control spending for the "general Welfare," to the extent ACTA has fiscal implications, to its authority to constitute inferior tribunals to the extent ACTA's many evidentiary standards would require them. Indeed, the only mention of "piracies" and "counterfeiting" in the Constitution are in Article I, Section 8.
There is no residuum of power in these areas that the executive can claim, even under the broadest theories of the strong executive camp. Thus John Yoo, one of the leaders of the strong executive camp, explains:
In order to respect the Constitution's grant of plenary power to Congress, the political branches must use a statute to implement, at the domestic level, any international agreement that involves economic affairs. Otherwise, the mere presence of an international agreement would allow the treatymakers to assume the legislative powers so carefully lodged in Article I for Congress. . . . Congressional-executive agreements preserve Congress's Article I, Section 8 authority over matters such as international and interstate commerce, intellectual property, criminal law, and appropriations, by requiring that regardless of the form of the international agreement, Congress's participation is needed to implement obligations over those areas.
The USTR has made three assertions justifying entering ACTA as a sole executive agreement despite the lack of plenary authority of the President over its subject matter. USTR has argued: (1) the agreement will be consistent with existing U.S. law; (2) the President has "plenary" powers over foreign affairs; and (3) the President is authorized by virtue of the Trade Act of 1974. None of these arguments establishes an adequate constitutional basis for sole executive action on ACTA.
The first argument is wrong as a matter of both fact and law. Factually, it is not true that ACTA has been crafted in a way to avoid usurpations of congressional authority. As noted in the letter of 80 Law Professors to President Obama, ACTA fails "to explicitly incorporate current congressional policy," including through provisions that appear to conflict with US limitations and exceptions of copyright and trademark law damages and injunctions. In the he-said she-world of the public debate on ACTA with USTR, it simply denies the claim. ACTA, USTR officials say, is absolutely consistent with US law because the Administration has reviewed the agreement and not seen any problems, and if it is not correct, then ACTA's Article 1.2, leaving each member "free to determine the appropriate method of implementing" ACTA, saves any problem. Regardless of the merits of USTR's position on the substance of the issue, the position misses the point. If ACTA binds the US as a legitimate executive agreement, then compliance of US law to its dictates will not be for the Administration to decide.
For the question of whether ACTA binds US law, the issue of its compliance with present US law is irrelevant. The President does not have authority to enter binding international agreements in Congress's arena of enumerated powers without congressional consent regardless of whether the agreement's provisions conform to the contours of existing domestic law. The reason is obvious - the agreements, if binding, would restrain Congress's power to alter current law. The President cannot so tie Congress's hands through unilateral action any more than the Congress can pass legislation without the President's signature. It is Congress, not the executive, which is entitled to reach the decision of whether the agreement does in fact comply with the current sense of the legislative branch of what the law is and should be. For this reason,
USTR's second argument - that the President has "plenary" power to enter into international intellectual property agreements - is similarly misplaced. Here, USTR is drawing on a host of Supreme Court statements that the President sometimes acts as the "sole" or "exclusive" representative of the United States in the arena of foreign affairs. Indeed, the specific source of USTR's rhetoric appears to be the oft cited dicta of the Supreme Court in the Curtiss-Wright case, referring to the "very delicate, plenary, and exclusive power of the President as the sole organ of the federal government in the field of international relations."
Properly set in their context, the descriptions of the President as the "sole" and "plenary" voice in foreign affairs are undoubtedly true. The relevant distinction is between the role of the President as the voice and negotiator of the US in foreign negotiations, which the executive practices unilaterally, and President's ability to bind the US to internationally constructed laws and policies, in which the "constitutional power over foreign affairs is shared by Congress and the President."
The President and his appointees are the sole voice of the US in international affairs. The President appoints the US representatives to international law making institutions including the United Nations, the World Trade Organization and the World Intellectual Property Organization. In these capacities, and under the President's power to "make" treaties and represent the US, the executive branch regularly engages in the creation of international law and policy. But such external agreements do not bind US domestic law except in the strictly limited areas where the President has sole Constitutional authority. Because ACTA involves international legal obligations on Article 1, section 8 congressional powers, the President cannot bind the US to the agreement absent congressional consent.
Finally, USTR evokes the Trade Act of 1974 as an example of ex ante authorization for the President to negotiate trade agreements. This would be a cogent argument if fast track legislation was still in place. Fast track legislation was a delegation of Congress's authority to regulate international trade to the executive branch under circumscribed rules (including a final up or down vote). But that legislation lapsed. The Trade Act of 1974 does not delegate power to the President to bind the US to trade agreements absent congressional consent. ACTA, no less than the Trans-Pacific Partnership now being negotiated or the Korea, Panama and Peru free trade agreements the administration is seeking to bind the US to, must be approved by Congress as a regulation of foreign commerce regardless of whether it complies with current law.
 http://www.ustr.gov/about-us/press-office/press-releases/2010/november/us-participants-finalize-anti-counterfeiting-trad Leaked notes from the EU delegation show that there will be "a technical meeting to finalise the legal scrub of the ACTA text" in Australia the week of November 30, 2010. http://www.wcl.american.edu/pijip/go/blog-post/acta-leaked-notes-by-the-ec-directorate-general-on-trade-to-the-inta-committe-and-trade-policy-committee
 See European Parliament resolution of 10 March 2010 on the transparency and state of play of the ACTA negotiations (asserting that "as a result of the entry into force of the Lisbon Treaty, [the EU Parliament] will have to give its consent to the ACTA Treaty text prior to its entry into force in the EU"). http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P7-TA-2010-0058&language=EN&ring=P7-RC-2010-0154
 See Eddan Katz & Gwen Hinze, The Impact of ACTA on the Knowldge Economy, 35 Yale Journal of Inlt'l Law
 Oona A. Hathaway, Presidential Power over International Law: Restoring the Balance, 119 Yale L.J. 140, 146 (2009).
 Cong. Research Serv., S. Prt. 106-71, Treaties and Other International Agreements: The Role of the United States Senate 88 (Jan.2001) [hereinafter Senate Report].
 Restatement (Third) Of The Foreign Relations Law Of The United States § 303(4) (1986) (The President may enter a binding international agreement without congressional assent only for a "matter that falls within his independent powers under the Constitution."); see Youngstown Sheet & Tube, U.S. at __ (admonishing that when the President acts pursuant to an "express or implied authorization of Congress, his authority is at its maximum"; but "in absence of either a constitutional grant or denial of authority, he can only rely upon his own independent powers").
 Statement of Professor Oona A. Hathaway, Yale Law School, Before the House Committee on Foreign Affairs, Subcommittee on Middle East and South Asia and the Subcommittee on International Organizations, Human Rights and Oversight. March 4, 2008, http://www.internationalrelations.house.gov/110/hat030408.htm
 U.S. Const. Art. II, Sec. 2.
 U.S. Const. Art. II, Sec. 3.
 U.S. Const. Art. II, Sec. 2; See Hathaway, Presidential Power over International Law, supra note 4 (citing "defense" as the area of foreign policy with the most executive agreements); Bradford R. Clark, Domesticating Sole Executive Agreements, 93 Va. L. Rev. 1573, 1581-82 (2007) (describing the "vast majority" of sole executive agreements as "unobjectionable . . . means of exercising their independent statutory authority or constitutional powers, such as the power to receive ambassadors, to issue pardons, or to command the military forces") (citing examples).
 U.S. Const. Art. II, Sec. 3.
 Hathaway, Presidential Power over International Law, supra note 4 at 149-153 & n. 29 (finding 375 sole executive agreements between 1990 and 2000 on matters including "Agreed Minutes" and "Implementing Procedures"); Michael Van Alstine, Executive Aggrandizement in Foreign Affairs Lawmaking, 54 U.C.L.A. L. Rev. 309, 319 n. 61, 352, n. 285 (citing over 15,000 executive agreements between 1946 and 2004).
 See Pink v. United States, 315 U.S. 203 (1942); Senate Report, supra note 5 at 90; Clark, supra note 10 at 1582, 1615 & 1660 (noting examples including receiving ambassadors, issuing pardons, settling claims of American nationals against foreign governments, and conducting military exercises).
 See Anti-Counterfeiting Trade Agreement Informal Predecisional/Deliberative Draft: Oct. 2, 2010, Chapter 3: Enforcement Practices, Chapter 4: International Cooperation, PIJIP IP Enforcement Database, http://sites.google.com/site/iipenforcement/acta(follow “Official Text -- October 2, 2010” hyperlink) [hereinafter ACTA Draft – Oct. 2, 2010].
 Youngstown, 343 U.S. at 587.
 See VanAlstine at 312, n. 8; Curtis Bradley & Martin Flaherty, Executive Power Essentialism and Foreign Affairs, 102 Mich L. Rev. 545, 548 (2004).
 See Memorandum from John Yoo to John Bellinger, 13 (Nov. 15, 2001) ("the executive exercises all unenumerated powers related to treaty making"); see also John Yoo, War and the constitutional Text, at 1677-78; Van Alstine, 54 UCLA L. Rev ay 337-340 (describing the strong claim that Article II's "vesting clause" grants plenary powers to the President over foreign affairs).
 Louis Henkin. "A More Effective System" for Foreign Relations: The Constitutional Framework. 61 Virginia Law Review, no. 4 (1975) at 753.
753 (emphasis added).
 See John C. Yoo, Laws as Treaties?: The Constitutionality of Congressional-Executive Agreements 56 (2000) available at http://works.bepress.com/johnyoo/24[hereinafter Yoo Article]. [pages reference working paper version. Paper published in 99 Mich. L. Rev. 757]. See also Van Alstine at 342-43 ("[E]ven the strong claim to implied executive powers acknowledges, as it must, that the president's Article II powers are ‘residual' only. Whatever their general scope, they are qualified by, and otherwise must yield to, the more specific allocations of power elsewhere in Article II and in Article I.").  U.S. Const. Art. I § 8, cl. 8 gives Congress power "To define and punish Piracies and Felonies committed on the high Seas," "To provide for the Punishment of counterfeiting the Securities and current Coin of the United States."
 Yoo Article, supra note 19 at 56.
 See Letter from Senator Bernard Sanders and Senator Sherrod Brown to David Kappos, Director of Patent and Trademark Office (Oct. 19, 2010), available at http://keionline.org/sites/default/files/senator_sanders_brown_kappos_19oct2010.pdf (requesting analysis on the potential implications of ACTA on areas of U.S. law that appear in conflict with the facial language of the agreement, including in reference to sovereign immunity, Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999) (non-willful trademark violation, 15 U.S.C. § 114 (2), and in certain cases of infringement in the digital environment, 17 U.S.C. § 512).
 see James Love, USTR's implausible claim that ACTA Article 1.2 is an all purpose loophole, and the ramifications if true, http://keionline.org/node/990.
 For a critique, see Id.
 See United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936) (describing the President as the "sole organ" in foreign affairs); N.Y. Times Co. v. United States, 403 U.S. 713, 741 (1971) ("[I]t is beyond cavil that the President has broad powers by virtue of his primary responsibility for the conduct of our foreign affairs and his position as Commander in Chief."); Johnson v. Eisentrager, 339 U.S. 763, 789 (1950) (discussing the "conduct of diplomatic and foreign affairs, for which the President is exclusively responsible"); Chicago & Southern Air Lines v. Waterman Corp., 333 U.S. 103, 109 (1948) (describing the President as "the Nation's organ in foreign affairs").
 United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936).
 Itel Containers Intern. Corp. v. Huddleston, 507 U.S. 60, 85 (1993); See also Regan v. Wald, 468 U.S. 222, 262 (1984) (Powell, J., dissenting) ("It is the responsibility of the President and Congress to determine the course of the Nation's foreign affairs."); Zschernig v. Miller, 389 U.S. 429, 432 (1968) (discussing "the field of foreign affairs which the Constitution entrusts to the President and the Congress"); United States v. Minnesota, 270 U.S. 181, 201 (1926) ("Under the Constitution the treaty-making power resides in the President and Senate, and when through their action a treaty is made and proclaimed it becomes a law of the United States.").
 Am. Ins. Assoc. v. Garamendi, 539 U.S. 396, 414 (2003) ("Nor is there any question generally that that there is executive authority to decide what [international] policy should be.").
 See Youngstown, 343 U.S. at 635-36 & n.2 (Jackson Concurring) (the President may "act in external affairs without Congressional Authority"); Alston at 345 ("[T]he president requires the consent of Congress as a whole, or two-thirds of the Senate for treaties, to transform this external policy into domestic law").