Harvard Profs Challenge ACTA Constitutionality

Sean Flynn
March 26, 2010

An article published today by two Harvard Law professors argues that ACTA's planned implementation by an executive order not passed through Congress would likely be unconstitutional.


The professors explain:
"Normal constitutional procedures would require the administration to submit the final text of the agreement for Senate approval as a treaty or to Congress as a 'congressional-executive' agreement. But the Obama administration has suggested it will adopt the pact as a 'sole executive agreement' that requires only the president's approval...
...The Supreme Court, however, has never clarified the limits on such agreements. Historical practice and constitutional structure suggest that they must be based on one of the president's express constitutional powers (such as the power to recognize foreign governments) or at least have a long historical pedigree (such as the president's claims settlement power, which dates back over a century)."
But ACTA is not based on such long standing constitutional powers, the professors point out.
"The president has no independent constitutional authority over intellectual property or communications policy, and there is no long historical practice of making sole executive agreements in this area. To the contrary, the Constitution gives primary authority over these matters to Congress, which is charged with making laws that regulate foreign commerce and intellectual property."
The article notes that the leaked ACTA text makes clear that in various ways the agreement would change US law is adopted by the President. But even an agreement that 'colors within the lines' of US law would change that law in various ways, they explain.
"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."




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