US Legal Academics Call For Congressional Review Of ACTA

An open letter was sent yesterday from 50 American legal academics encouraging members of the United States Senate Finance Committee to exercise their Constitutional responsibility to ensure that the Anti-Counterfeiting Trade Agreement (ACTA) is treated as a binding international agreement requiring legislative ratification and sent to Senate for approval.

“[I]t is our studied opinion that the administration has failed to identify ex ante authorization of ACTA by Congress, and that these are thus the only Constitutional bases for U.S. entry into ACTA,” they wrote.

This letter is in response to the Department of State Legal Advisor Harold Koh’s claim that ACTA was authorized by Section 8113(a)(6) of the 2008 PRO-IP Act (IPW, US Policy, 14 October 2008).

The letter argues that Koh’s claim fails on two counts:

“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,” they said. “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).”

“Second,” they continued, “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….”

The letter concludes that inducting ACTA without ex post Congressional approval would be unconstitutional.

The Constitution dictates that the United States can bind itself international agreements in one of three ways, by:

1) ratification through the Treaty Clause, requiring approval by a two-thirds vote of the Senate;
2) an ex ante Congressional-Executive Agreement, in which the Executive is granted the power to craft and enter the agreement following approval from both houses of Congress and the President;
or
3) an ex post Congressional-Executive Agreement, in which an Executive-negotiated agreement is passed onto both houses of Congress for approval and signed into the law by the President.

The letter goes on to explain that “[r]egardless of whether ACTA requires changes in U.S. law (many claim that it does), these are matters subject to the legislative power vested in the Congress, not in the sole executive province of the President.”

Furthermore, they contend that “[t]he present issue reaches far beyond the topical matters covered by ACTA, into the fundamental Constitutional issue of separation of powers.” If Congress were to allow the Executive to claim that ACTA was authorized by Section 8113(a), it would be surrendering unprecedented power to the Executive.

The full text of the letter can be found here.

[Update:] The Electronic Frontier Foundation has also questioned the USTR’s authority to enter into ACTA, specifically the failure to undergo the Circular 175 procedure necessary to sign a binding treaty.

Nancy Situ is a researcher with Intellectual Property Watch. She is a JD Candidate at Osgoode Hall Law School in Toronto. Her interests lie within copyright and trademark policy, especially pertaining to freedom of expression and challenges in an online environment. She is currently an IPilogue editor and the Senior Editor-in-Chief of Obiter Dicta.