Scholars Say ACTA Needs Senate Approval

suraj.sun passes along this excerpt from Wired: "More than 70 academics, mostly legal scholars, are urging President Barack Obama to open a proposed international intellectual-property agreement to public review before signing it. The likely route for that is bringing the [Anti-Counterfeiting Trade Agreement] to the Senate for ratification. ... the intellectual property accord, which Obama could sign by year's end, has pretty much been hammered out in secret between the European Union, Japan, the United States and a few other international players, including Canada and Australia. Noticeably absent is China. That said, these academics suggested that Obama does not have the authority to unilaterally sign the accord, which has been in the works for three years and is nearly final. Instead, they said, it should be considered a treaty, necessitating two-thirds Senate approval."

We need scholars to tell us that?

[bonkeydcow]

Doesn't anyone read the constitution anymore? Animal Farm here we come.

Re:We need scholars to tell us that?

[mcvos]

I don't understand why Obama is so hung up on the ACTA. The negotiations started before he came to power, didn't they? Why is it his baby? Or is he just talking with the same lobbyists?

Re:We need scholars to tell us that?

[VGPowerlord]

The question comes down to whether this is a Treaty, which would require the advice and consent of 2/3rds of the Senate, or whether it's an Executive Agreement, which ultimately comes down to just an agreement between the executive branches of other agreeing nations and signed by the Executive. Nowadays, Executive Agreements are the norm in foreign policy and not Treaties.

er... yeah:

The Congress shall have Power... 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

-- US Constitution [archives.gov], Article I Section 8.

That would prevent an executive order from changing Copyright or Patent laws.

Wise men say it needs Senate disapproval

[Mathinker]

"Scholars Say ACTA Needs Senate Approval" : Wise men say it needs Senate disapproval.

Re:We need scholars to tell us that?

[Sonny Yatsen]

Executive Agreements can have essentially the same scope as a Treaty. The primary difference between a Treaty and an Executive Agreement in its effect is the priority of supremacy they are applied.

We know from the Supremacy Clause of the Constitution that:

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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. - Art. VI, Sec. 2

However, within the federal laws themselves, there is a further priority of supremacy. Federal laws cannot be made in contradiction of the Constitution - for the Constitution is Supreme. Similarly, a federal statute can't be made in contradiction of a Treaty, because a Treaty is considered higher in supremacy to a Federal statute, but lower than the Constitution. (And federal rules and regulations fall below that of all Federal statutes, treaties, Constitution, etc.)

An Executive agreement tends to sit just slightly above federal laws, but they cannot contradict any treaties or the Constitution itself. What's the practical effect of this? Not much - but it is easier to strike them down in a court, I suppose.

Re:We need scholars to tell us that?

[DragonWriter]

Treaties of the United States have to be ratified by the Senate.

Sure, that's not controversial.

Its also not controversial that there are international agreements that are not treaties, and that do not require ratification by a 2/3 vote of the Senate, particularly executive agreements that can be entered into unilaterally, and agreements that are implemented by adoption of normal legislation (which, while they require action in both houses of Congress, don't require a 2/3 vote in either.)

Whether a particular agreement is within the scope of executive authority or is something that can only be done as a treaty or legislation (or whether, if its accepted as a treaty, it is self-executing or requires additional implementing legislation) is, OTOH, often controversial.

In fact, that is particularly what is controversial here.

Even further, whether something that is accepted as being within the existing scope of the authority for executive agreements is inherently Constitutionally within executive authority or whether it is merely within the scope of executive authority given the existing statutory framework and could be withdrawn by simple legislation is also often controversial.

Re:We need scholars to tell us that?

[imthesponge]

The Republicans are corporatist, not constitutionalist. The "Tea Party" thing is just a front. Not that the Democrats are much better.

Re:We need scholars to tell us that?

[AK Marc]

No executive order has ever been held to have the force of law unless it was a specific direction of an existing law. No new law has ever been enforced by signing statement or executive order.

I can see how people fearing the worst will assert all manner of evil to someone they don't like, but I fail to see how he's going to get away with something that everyone who's ever even wiped their ass with the Constitution knows is illegal. If Obama is correct, that the treaty is exportation of US law and thus needn't have the force of law in the US, then we would be living under it because the DCMA passed. If there is anything at all in the treaty that isn't already in US law, signing it will not make those provisions enforcible unless ratified. I've seen nothing that's indicated that Obama thinks anything other than that will happen. Well, other than insane ramblings of conspiracy theorists. Not that I'm defending him, his position, his policies. I'm just stating that all the conjecture I've seen on this subject appears to be 100% false.