INTRODUCTION:
The debate at hand concerns contrary interpretations of the constitutional allocation of foreign policy powers, treaty-making authority, and the scope of the Executive’s authority to bypass the Framers’ safeguards against tyranny. Evidence based on the Constitution, documentary evidence of the Framers' intent, and judicial precedents, supports the arguments on both sides, but it seems most probable that signing the Anti-Counterfeiting Trade Agreement (ACTA) as a sole executive agreement is unconstitutional.
FOUNDATIONAL PRINCIPLES:
In the wake of the American Revolution, the States were free to pursue their own international commercial and economic initiatives.[1] They negotiated directly with local Indian tribes and sent representatives abroad to negotiate trade agreements with foreign powers.[2] The resulting lack of national unity led the founding fathers to address this when they drafted Article I of the United States Constitution by stating that “[n]o State shall, without the Consent of Congress … enter into any Agreement or Compact with another State, or with any foreign Power.”[3] This clause explicitly recognizes that States may enter into Agreements or Compacts, limits their power to do so by enumerating a congressional power over the States in this area, and fails to mention the executive branch at all.[4]
The Framers were extremely cautious about empowering any one branch or individual to unilaterally conclude treaties. Consequently, the Framers engaged in vigorous debate over which procedures would thwart the new government “from undertaking unwise international obligations.”[5] Ultimately, they settled on the “Treaty Clause,” which states that the President “shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”[6] Nevertheless, the President may still enter into binding international Agreements on his own authority, but this power is limited to “matters that fall within his independent powers under the Constitution.”[7]
The question this article seeks to answer is whether executing and implementing ACTA as a sole executive agreement, without Senate ratification, falls within the President’s independent constitutional powers. If it does, then the Treaty clause is, for all practical purposes, meaningless and the interchangeability of Agreements and Treaties imbues the executive branch with virtually unlimited authority in the arena of foreign affairs.[8]
TREATIES DO NOT EQUAL AGREEMENTS:
The Obama Administration, through the Office of the U.S. Trade Representative (USTR), supported the negotiation and implementation of ACTA as a sole executive agreement without the approval of the Senate or an ex ante or ex post joint resolution of both houses of Congress.[9] ACTA cannot constitute a valid treaty without ratification by two thirds of the Senate. Likewise, an ex ante or ex post joint resolution of both houses would have made it a valid congressional-executive agreement. This unilateral action implies the Administration’s belief (and that of the Bush Administration which revealed the same intention) that setting United States policy in the area of intellectual property enforcement falls within the President’s independent constitutional powers, and is therefore appropriately executed and implemented as a sole executive agreement.[10]
There is no clear line delineating the precise circumstances requiring adherence to the procedures called for by the Treaty Clause and this dilemma is by no means a recent development. In 1818, President James Monroe negotiated the Rush-Bagot Agreements with Great Britain for the purpose of demilitarizing the Great Lakes.[11] Most, but not all, parts of the Agreement fell within President Monroe’s independent constitutional powers as Commander-in-Chief of the armed forces.[12] He nevertheless submitted the matter for the advice and consent of the Senate and included “the following message: ‘I submit it to the consideration of the Senate, whether this is such an arrangement as the Executive is competent to enter into, by the powers vested in it by the Constitution, or [one which] requires the advice and consent of the Senate.’”[13]
More recently, the Reagan administration employed the opposite approach in executing the Iran-Contra Affair. The Administration reasoned that its constitutional authority justified suspending what would have been legitimate tort and commercial claims against the government of Iran. Members of the Administration (somewhat brazenly) justified their actions by claiming that they “had merely done what Congress had refused to do.”[14] The Supreme Court later validated the action, but noted the narrowness of the ruling.[15] Of central importance in the Court’s reasoning were the exact circumstances under which the executive branch acted: under emergency conditions and in an area where Congress had failed to legislate previously.[16] Not only is it difficult to contend that signing ACTA constitutes an emergency, but the very nature of the Agreement concerns intellectual property, an area of law which Congress has treated extensively[17] pursuant to its enumerated Article I power to do so.[18]
President Monroe’s self-imposed restraint is commendable and should serve as a model for future Administrations where vague separation-of-power issues come into play. The history of ACTA nowhere demonstrates such restraint and a growing portion of academia goes so far as to brand its execution and implementation as a usurpation of congressional lawmaking authority by the executive branch, the likes of which the Framers specifically set out to prevent via our elaborate system of checks and balances.[19] The Framers recognized that Congress required the unique authority to create laws, reasoning from experience that such power is simply too great for any single President. Thus, Article I begins by vesting “All legislative Powers … in a Congress”[20] and later the Necessary and Proper Clause provides Congress with the power to “make all Laws which shall be necessary and proper for carrying into Execution” not only its own powers, but also “all other Powers vested by the Constitution in the Government of the United States, or in any Department or Officer thereof.”[21]Although the congressional power to delegate its legislative authority is nowhere enumerated in the Constitution, Congress is nonetheless entitled to do so and several contrasting Supreme Court decisions illustrate the controversial issue of the appropriate allocation of power in the arena of foreign affairs.
CONTRASTING JUDICIAL PRECEDENTS:
Supporters of the legislative-executive foreign policy partnership rely on The Youngstown Case as the standard that most closely approximates the proper relationship between the two branches of government.[22] In April of 1952, President Harry S. Truman unilaterally authorized the seizure of the majority of American steel mills, which were facing widespread shutdowns due to a national labor strike. He declared the situation a national emergency and a threat to national defense and justified the action by asserting that Congress had properly delegated him the authority to act in this area pursuant to his constitutional powers as Commander-in-Chief.[23] The Court rejected this argument and found that not only had Congress not validly delegated him the authority under which he claimed to be acting, but that Congress had gone so far as to pass legislation which conflicted with the very nature of the seizure itself. Moreover, Justice Black’s opinion concluded that when the President acts pursuant to an “express or implied authorization of Congress, his authority is at its maximum,” but absent “either a constitutional grant or denial of authority, he can only rely upon his own independent powers.”[24]
Advocates of a presidential prerogative, in foreign policy making, argue that the case of United States v. Curtiss-Wright is the controlling precedent.[25] In that case, Congress granted President Franklin D. Roosevelt the power to declare the sale of weapons to Bolivia illegal and the Curtiss-Wright Export Corporation, after being accused of violating the declaration, maintained this was an unconstitutional delegation of legislative authority.[26] The court disagreed and ruled that the President is the sole voice and representative of United States in foreign relations and should be afforded a degree of discretion otherwise not afforded domestically.[27] The Court reasoned that the Constitution implicitly grants the President the sole authority to manage all aspects of foreign affairs on behalf of the nation.[28]
Since the decisions in the two cases are difficult to reconcile, resolving this troublesome foreign policy powers question by reference to Supreme Court pronouncements has been unsuccessful. Parties on both sides of this dispute have attempted to defend their respective positions by discrediting, or at least reinterpreting, the rival court decision. Youngstown can be distinguished from Curtiss-Wright by noting that the seizure of domestic steel mills was a predominantly domestic matter which required congressional authorization. Whereas the sanctions on Bolivian arms dealings were foreign affairs which justified the President’s exercise of plenary power over foreign affairs without regard to Congressional authority. Thus, a primary concern raised by critics of ACTA hinges upon whether the impact of the Agreement will be sufficiently “domestic” to be governed by Youngstown, rather than Curtiss-Wright.
THE LETTER: 75 LAW PROFESSORS OBJECT:
Consequently, when the first official draft of the Agreement was released in 2010, a vocal group of academicians drafted an open letter to President Barack Obama.[29] The group, composed of more than seventy-five law professors, raised numerous public concerns including: the “intense but needless secrecy” surrounding the negotiations; the undemocratic failure to “invite [meaningful] comments on the text, public inspection, and comment;” the advisability of establishing a “new international framework” of rules governing intellectual property enforcement; the assertion that, contrary to the claims of the USTR, the Agreement is in no way “related to any standard definition of ‘national security’ or any other interest of the United States similarly pressing or sensitive.”[30]
The letter goes on to assert that signing, executing, and implementing ACTA as a sole executive agreement is unconstitutional and unwise, asserting that such action would “usurp congressional authority over intellectual property policy” in the following ways: by failing to “explicitly incorporate current congressional policy;” by locking in substantive law which may need future revision; by complicating “legislative efforts to solve widely recognized policy dilemmas” throughout the field of intellectual property law; and finally by likely affecting “courts’ interpretation of U.S. law.”[31] Finally, the letter ends by stating the following:
Nearly 100 international intellectual property experts from six continents gathered in Washington, DC in June, 2010 to analyze the potential public interest impacts of the officially released text. Those experts – joined by over 650 other experts and organizations – found that “the terms of the publicly released draft of ACTA threaten numerous public interests, including every concern specifically disclaimed by negotiators.[32]
The expert statement notes that ACTA: will interfere with citizens’ fundamental rights and liberties; is “inconsistent with the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS);” will increase domestic border searches and “interfere with cross-border transit of legitimate generic medicines;” and will “require ‘graduated response’ disconnections of people from the internet.”[33]
Other commentators have suggested that the USTR and the Obama Administration are relying on various flexibilities within the Agreement that would preclude enforcement of the terms against the United States. Article 1.2(1) of the Agreement ends with the following language: “Each Party shall be free to determine the appropriate method of implementing the provisions of this Agreement within its own legal system and practice.”[34] The language is virtually identical to that found in the TRIPS Agreement, is invariably invoked as a defense by all countries accused of violating their obligations under the treaty, and has repeatedly been proven unpersuasive as a “get-out-of-jail-free card.”[35] Indeed, there are at least two cases concerning TRIPS violation in which the United States was a party, “once as a Plaintiff and once as a Defendant.”[36] When the United States attempted to use the defense to defeat a suit filed by the European Union concerning overbroad copyright laws, the panel rejected the United States’ defense, stating “[w]e note that while the WTO Members are free to choose the method of implementation, the minimum standards of protection are the same for all of them.”[37]
CONCLUSION:
The consequences of joining ACTA are very real and will ultimately bind the United States to a framework of international standards which is inconsistent with established United States law. The overall approach to the negotiation, execution, and implementation of ACTA runs contrary to the principles which form the cornerstones of the American constitutional democracy. The United States runs the risk of subjecting itself to international treaty obligations, without having properly adhered to the Treaty Clause of the Constitution. By executing and implementing the Anti-Counterfeiting Trade Agreement as a sole executive agreement, rather than as a treaty or a congressional-executive agreement, the Obama Administration could arguably expand the separation of powers doctrine beyond the parameters deemed acceptable by the drafters of the Constitution. Given the lack of emergency circumstances and the domestic ramifications of the Agreement, the ruling in Youngstown suggests that cooperation between the executive and the legislative branches may be a more appropriate course of action to pursue.
Nevertheless, numerous commentators refer to the majority of sole executive agreements being consistent with the principles addressed above, but it remains to be seen if somewhere among the minority of those agreements the Obama Administration could find a precedential foothold to support its action as consistent with the history and traditions of the executive branch’s supremacy in the arena of foreign affairs.
WORD COUNT: 2,734
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[1] Patterson, T.E., The American Democracy, McGraw-Hill Publishing, 23 (New York, 1990). (New Hampshire even went so far as to establish a Navy to defend its 18 mile coastline).
[2] Id.
[3] U.S. CONST. art. I, § 10 cl. 3.
[4] Id.
[5] Clark, B., Domesticating Sole Executive Agreements, 93 VA. L. REV.1573, 1581-82 (2007); Rakove, J., Solving a Constitutional Puzzle: The Treatymaking Clause as a Case Study, 1 Persp. in Am. Hist., New Series 233, 243 (1984).
[6] U.S. CONST. art. II, § 2.
[7] RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 303(4) (1986); See U.S. CONST. art. II, § 2 (for a comprehensive list of enumerated Presidential powers).
[8] Clark, B., Domesticating Sole Executive Agreements, 93 VA. L. REV. 1573, 1583 (2007)
[9] Flynn, S., 2011. ACTA's Constitutional Problem: The Treaty That Is Not a Treaty (Or An Executive Agreement). PIJIP Research Paper no. 19, 4. American University Washington College of Law, Washington, D.C.; 75 Law Profs Call for Halt of ACTA, PIJIP BLOG (Oct. 28, 2010), http://www.wcl.american.edu/pijip/go/blog-post/over-75-law-profs-call-for-halt-of-acta.
[10] Id.
[11] Clark, B., Domesticating Sole Executive Agreements, 93 VA. L. REV.1573, 1580 (2007)
[12] Id.
[13] Message from President James Monroe to the Senate of the United States (Apr. 6, 1818), reprinted in 3 Journal of the Executive Proceedings of the Senate of the United States of America 131, 132 (Washington, Duff Green 1828); Clark, B., Domesticating Sole Executive Agreements, 93 VA. L. REV. 1573, 1580 (2007).
[14] Patterson, T.E., The American Democracy, McGraw-Hill Publishing, 60 (New York, 1990).
[15] Dames & Moore v. Regan, 453 U.S. 654, 675 (1984).
[16] Id.
[17] 35 U.S.C. § 101, et seq.
[18] U.S. CONST. art. I, § 8 cl. 8.
[19] See Clark, B., Domesticating Sole Executive Agreements, 93 VA. L. REV. 1573, 1580 (2007); Flynn, S., 2011. ACTA's Constitutional Problem: The Treaty That Is Not a Treaty (Or An Executive Agreement). PIJIP Research Paper no. 19, 4. American University Washington College of Law, Washington, D.C.; Over 75 Law Profs Call for Halt of ACTA, PIJIP BLOG (Oct. 28, 2010), http://www.wcl.american.edu/pijip/go/blog-post/over-75-law-profs-call-for-halt-of-acta; Jack Goldsmith and Lawrence Lessig, Anti-counterfeiting agreement raises constitutional concerns, WASH. POST, Mar. 26, 2010 available at http://www.washingtonpost.com/wpdyn/content/article/2010/03/25/AR2010032502403.html; E. Katz & G. Hinze, The Impact of the Anti-Counterfeiting Trade Agreement on the Knowledge Economy: The Accountability of the Office of the U.S. Trade Representative for the Creation of IP Enforcement Norms Through Executive Trade Agreements, 35 YALE J. INT’L L. 24 (Fall 2009).
[20] U.S. CONST. art. I, § 1.
[21] U.S. CONST. art. I, § 8 cl. 18.
[22] Youngstown Sheet & Tube, 343 U.S. 579 (1952).
[23] President Truman claimed that the requisite power to act was conferred upon him by Congress in the Defense Production Act of 1950.
[24] Youngstown Sheet & Tube, 343 U.S. 579 (1952).
[25] United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304 (1936).
[26] Id at 320.
[27] Id.
[28] Id.
[29] Over 75 Law Profs Call for Halt of ACTA, PIJIP BLOG (Oct. 28, 2010), http://www.wcl.american.edu/pijip/go/blog-post/over-75-law-profs-call-for-halt-of-acta
[30] Id.
[31] Id.
[32] Id.
[33] Id.
[34] Love, J., USTR's implausible claim that ACTA Article 1.2 is an all purpose loophole, and the ramifications if true, Knowledge Ecology International Blog: Attending and Mending the Knowledge Ecosystem (Oct. 22, 2010) available at http://www.keionline.org/node/990 (last visited Oct. 11, 2011).
[35] Id.
[36] Id.
[37] Id.
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