US Senator Questions Constitutionality Of ACTAPublished on 12 October 2011 @ 7:10 pm
By William New, Intellectual Property Watch
The Obama administration’s recent signing of the Anti-Counterfeiting Trade Agreement may face a US constitutional challenge as a member of the US Senate today called into question the administration’s power to negotiate and enter into such a trade agreement without Congress’s approval.
Sen. Ron Wyden, an Oregon Democrat often out front on technology issues, sent a 12 October letter addressed to President Obama taking issue the US Trade Representative (USTR)’s assertions that the ACTA is a “sole executive agreement” which can be entered into and implemented without the legislative branch’s involvement. USTR, which is part of the White House, has repeatedly said the agreement does not require changes to US law.
“[T]he executive branch lacks constitutional authority to enter into binding international agreements on matters under Congress’s plenary powers, including the Article I powers to regulate foreign commerce and protect intellectual property,” the letter states. “Yet, through ACTA and without your clarification, the USTR looks to be claiming the authority to do just that.”
Wyden demanded that the administration either declare that ACTA does not create any international obligations for the US and therefore is “non-binding,” or provide a legal rationale to the Congress and the public as to why ACTA should not be considered by Congress.
A number of law professors have doubts about the legality of the ACTA. A constitutional challenge can be launched if a member of Congress contests the agreement, according to sources.
Wyden’s press release and letter are here.
ACTA was signed on 1 October by a number of the negotiating countries (IPW, Bilateral/Regional Negotiations, 4 October 2011).
William New may be reached at firstname.lastname@example.org.