Senator Wyden Asks President Obama: Isn't Congress Required To Approve ACTA?

from the good-question dept

As the US Trade Rep (USTR) under the Obama administration has made it clear that it has no intention of allowing Congress to ratify ACTA, but instead believes it can sign it unilaterally, we’ve finally seen someone in Congress notice that this appears to be unconstitutional. Senator Wyden has sent President Obama a letter asking some basic questions. From the letter:


Although the USTR insists that current U.S. law, and its application, conform to these standards, there are concerns that the agreement may work to restrain the U.S. from changing such rules and practices. As you know, the executive branch lacks constitutional authority to enter binding international agreements on matters under Congress’s plenary powers, including the Article I powers to regulate foreign commerce and protect intellectual property. Yet, through ACTA and without your clarification, the USTR looks to be claiming the authority to do just that.

The letter also responds to the repeated claims of the USTR that it can have this signed as an executive agreement because it doesn’t require changes to US law, by pointing out that’s not the rule:


The statement by the USTR confuses the issue by conflating two separate stages of the process required for binding the U.S. to international agreements: entry and implementation. It may be possible for the U.S. to implement ACTA or any other trade agreement, once validly entered, without legislation if the agreement requires no change in U.S. law. But, regardless of whether the agreement requires changes in U.S. law, a point that is contested with respect to ACTA, the executive branch lacks constitutional authority to enter a binding international agreement covering issues delegated by the Constitution to Congress’ authority, absent congressional approval.

Wyden details the situations under which the US can take part in binding international agreements, and points out that: “ACTA appears to be none of these.” He then asks President Obama to make clear that ACTA creates no international obligations for the US:


Mr. President, if you allow the USTR to express your assent to ACTA, then the agreement can bind the U.S. under international law even without Congress’ consent, because international law, not U.S. law, determines the binding effect of international agreements. According to many international law scholars, customary international law recognizes the ability of the chief executive of a country to bind its nation to an international agreement regardless of domestic legal requirements.

I request that as a condition of the U.S. putting forward any official instrument that accepts the terms of ACTA that you formally declare that ACTA does not create any international obligations for the U.S. — that ACTA is not binding. If you are unwilling or unable to make such a clarification, it is imperative that your administration provide the Congress, and the public, with a legal rationale for why ACTA should not be considered by Congress, and work with us to ensure that we reach a common understanding of the proper way for the U.S. to proceed with ACTA. Thank you for your attention to this important matter.



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Comments on “Senator Wyden Asks President Obama: Isn't Congress Required To Approve ACTA?”

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91 Comments
Daddy Warbuckssays:

Law & Ignore

Too bad the Constitution is in the way with all its pesky laws, Obama is cutting off his nose (making it The Leader) to spite his face.

This President’s arrogance knows no bounds,
Kill Lists,
Telling Congress to F Off,
Pushing the DOJ to ignore the Laws (F&F, Wiretapping US Citizens, Writing its own Warrants, etc),
Starting a War without any consideration to the Constitution.

Just try and stop him. Even when Wyden is correctly acting in his capacity, he still gets lambasted by Obama groupies, the comments on this post are a perfect example.

Anonymoussays:

Re: Re: Law & Ignore

Too bad the Constitution is in the way with all its pesky laws, Obama is cutting off his nose (making it The Leader) to spite his face.

This President’s arrogance knows no bounds,
Kill Lists,
Telling Congress to F Off,
Pushing the DOJ to ignore the Laws (F&F, Wiretapping US Citizens, Writing its own Warrants, etc),
Starting a War without any consideration to the Constitution.

Just try and stop him. Even when Wyden is correctly acting in his capacity, he still gets lambasted by Obama groupies, the comments on this post are a perfect example.

Starting a war? I think I must have missed that one. What war did Obama start?

Anonymoussays:

Re: Re: Re: Re: Law & Ignore

Don’t forget Yemen…

(CBS/AP) WASHINGTON – The New York Times says the Obama administration has intensified the covert U.S. war in Yemen, hitting militant suspects with armed drones and fighter jets.

The newspaper says the accelerated campaign has occurred in recent weeks as conflict in Yemen has left the government there struggling to cling to power.

Read more: http://www.cbsnews.com/stories/2011/06/09/501364/main20070252.shtml#ixzz1OoccDVRf

Anonymoussays:

Re: Re: Re: Re: Re: Re: Law & Ignore

Don’t forget Yemen…

(CBS/AP) WASHINGTON – The New York Times says the Obama administration has intensified the covert U.S. war in Yemen, hitting militant suspects with armed drones and fighter jets.

The newspaper says the accelerated campaign has occurred in recent weeks as conflict in Yemen has left the government there struggling to cling to power.

Read more: http://www.cbsnews.com/stories/2011/06/09/501364/main20070252.shtml#ixzz1OoccDVRf

Outrageous. He should just invite them over to the White House for dinner and reason with them.

Anonymoussays:

Re: Re: Re:2 Re: Re: Re: Re: Law & Ignore

or mind his own business. just because someone asks for assistance doesn’t mean you have to give it. Usually, people consider their own situation before committing to spending millions of dollars on something.

Oh, you mean we are and have been operating in the red? For how long? Unemployment is at what percent? The banks are doing what?

I’m sorry mr leader of yemen, but we cannot help you at this time. THe most we can do is send you some advisors to teach you how to treat your populace so they don’t rise against you. Don’t expect it to work for too long, tho, [its not going so well for us back home]

Bergmansays:

Re: Re: Re: Re: Law & Ignore

Obama set a bit of a dangerous precedent for U.S. law in his assertion, if it is allowed to stand.

By Obama’s reasoning, if Al Qaeda had used drones or missiles instead of airliners on 9/11, they would not have committed an act of war nor a hostile act. Because bombing someone by remote control isn’t an act of war (since if it were, he’d need Congress to approve his doing it within a certain span of time).

DH's Love Childsays:

Re: Re: Re: Re: Proud, but skeptical

I’d like to order a couple of Wydens for my state, is Oregon going to be making any more or do you guys want the monopoly on politicians with heads outside their asses?

The problem isn’t politicians with their heads up their own asses, it’s that they have their heads up their corporate masters’ asses.

ps I’m glad to have recently moved to Oregon.

BearGriz72says:

Re: Re: Re: Re: Re: Re: Proud, but skeptical

Define: weather…

If “Today’s forecast, showers, followed by rain. Tomorrow: rain, followed by showers” doesn’t faze you, and/or you love the smell of rain, & you think people who use umbrellas are either wimps or people from California. Then you know you’re from Oregon.

Anonymoussays:

Re: Re: Obama's ignorance of the Constitution...

To be somewhat more fair, the overreach of executive authority is just a continuation of the last administration’s policy. Bush never intended to run this through Congress either, and the secret negotiations for ACTA were set up under his administration.

Obama can hardly be said to be ignorant of the Constitution. He’s just ignoring it willfully.

Anonymoussays:

Re: Re: Read the foreign affairs manual

This problem is bigger than ACTA. This is standard operating procedure.

Google for “11 FAM 721” and read the entire section 721 (it’s not that big). It grants great leeway in deciding what international agreements can be made without a treaty, and it doesn’t make much distinction regarding article I, or II issues (especially when there are no legislative hurdles to enactment) . The manual in a wishy-washy way says that it’s nice to consult congress sometimes in deciding what type of agreement to use. But it doesn’t require it, nor does it say that they have to listen or obey the opinions of congress during their consultation.

They’re playing by the book (unfortunately, it’s a book that they wrote).

Anonymoussays:

Re: Re: Re: Re: Read the foreign affairs manual

This problem is bigger than ACTA. This is standard operating procedure.

Google for “11 FAM 721” and read the entire section 721 (it’s not that big). It grants great leeway in deciding what international agreements can be made without a treaty, and it doesn’t make much distinction regarding article I, or II issues (especially when there are no legislative hurdles to enactment) . The manual in a wishy-washy way says that it’s nice to consult congress sometimes in deciding what type of agreement to use. But it doesn’t require it, nor does it say that they have to listen or obey the opinions of congress during their consultation.

They’re playing by the book (unfortunately, it’s a book that they wrote).

Oh goodness!!!! Why this would mean that Mike’s suggestion that there is a Constitutional issue is, is, ……. FUD??? Oh that couldn’t be….. could it?

Anonymoussays:

Re: Re: Re: Re: Re: Re: Read the foreign affairs manual

There’s still constitutional issues. Even if we were to assume that the manual is not giving out unconstitutional instructions (very arguable), you can still question the interpretation of the manual.

For instance, here’s the wording specifying which non-treaty agreements are allowable:


(2) Agreements Pursuant to Legislation

The President may conclude an international agreement on the basis of existing legislation or subject to legislation to be enacted by the Congress;
and
(3) Agreements Pursuant to the Constitutional Authority of the President

The President may conclude an international agreement on any subject within his constitutional authority so long as the agreement is not inconsistent with legislation enacted by the Congress in the exercise of its constitutional authority. The constitutional sources of authority for the
President to conclude international agreements include:
(a) The President’s authority as Chief Executive to represent the nation in foreign affairs;
(b) The President’s authority to receive ambassadors and other public ministers;
(c) The President’s authority as “Commander-in-Chief?; and
(d) The President’s authority to “take care that the laws be faithfully executed.”

I imagine that the administration could argue that ACTA could fit under either of these categories. However I would argue that #2 refers to actual instructions from congress to make an agreement, not just an agreement that doesn’t require additional laws. And # 3 requires that the subject be limited to matters within presidential responsibility. I suppose they could argue that this is just part of the president’s authority to see that the laws are faithfully executed.. But I would argue that that authority does not grant the president authority to hobble congress’s ability to change the law.

Bergmansays:

Re: Re: Re: Re: How long before Wyden is called a racist?

But the question is, if the President lacks the lawful authority to sign ACTA into effect, how would his signing it be any different, in a binding and/or legal sense than, say, you or I signing it?

To implement it, Congress must be involved. Unless Obama’s next “refinement” to extraordinary rendition will be to allow foreign police forces to enter the U.S. to make arrests for ACTA violations?

In case you didn’t notice, that would meet all of the legal criteria for a Treason charge.

Anonymoussays:

Re: Re:

Regardless of whether the White House can, should, or will sign the agreement, they’ll have a hell of a time implementing or enforcing it without Congressional cooperation.

What makes you think anyone in the Senate other than Wyden has an issue. You may note from the vote on the jobs bill that they’re not exactly reticent when it comes to bitch-slapping the President.

Wyden is Google’s pet senator and they wind him up and send him out as their messenger boy on issues that may affect there business.

Re: Re: Re: Re:

Wyden is Google’s pet senator

Not surprisingly, this is a total lie. Let’s look at Wyden’s contributors:

1. Nike Inc – $42,200
2. FoxKiser – $33,600
3. Berkshire Hathaway – $30,625
4. Intel Corp – $24,850
5. Ospraie Management – $24,000
6. Blue Cross/Blue Shield – $23,650
7. McKool Smith PC – $23,500
8. Mary Kay Holding Corp – $21,600
9. Oregon Health & Science University – $20,700
10. Providence Health & Services – $20,450
11. Akin, Gump et al – $19,868
12. M Financial Group – $19,650
13. Amir Development – $19,200
13. Apollo Advisors – $19,200
15. Steptoe & Johnson – $18,645
16. Platt Electric – $18,600
17. Patton Boggs LLP – $18,450
18. Tonkon Torp – $17,750
19. Banfield Pet Hospital – $17,700
20. Oaktree Capital Management – $16,900

Google isn’t even in the Top 20; in fact, no internet idustry is.

On the other hand, his #1 contributor is Nike – one of the companies who instructed ICE to seize websites, and a notoriously overreaching IP protectionist. If Wyden really was the “pet senator” of his contributors, he wouldn’t be standing up against ACTA, the seizures, or PROTECT IP.

“Pet senator” more accurately describes Patrick Leahy, the Democratic senator from Vermont who sponsored the PROTECT IP act. Let’s take a look at his top 20 contributors:

1. Technet – $81,961
2. Girardi & Keese – $72,000
3. Time Warner – $62,150
4. Walt Disney Co – $45,150
5. Vivendi – $35,706
6. Microsoft Corp – $31,750
7. Law Offices of Peter G Angelos – $29,050
8. Intellectual Ventures LLC – $28,400
9. Comcast Corp – $25,250
10. National Amusements Inc – $23,500
11. Google Inc – $21,100
12. Oracle Corp – $21,000
13. Nix, Patterson & Roach – $20,181
14. Sony Corp – $19,000
15. NorPAC – $18,962
16. Warner Music Group – $17,150
17. General Electric – $16,750
18. Bergman, Draper & Frockt – $16,400
19. National Fraternal Order of Police – $16,250
20. DLA Piper – $15,550

In other words, out of his top 20 contributors, fully half of them are companies that are directly pushing for stronger IP laws.

Of course, Google also makes Leahy’s list… unlike Wyden’s. Ironic that you don’t call Leahy “Google’s pet senator.” I guess you only make that accusation when that Senator doesn’t agree with you.

Anonymoussays:

Re: Re: Re: Re: Re: Re:

Perhaps you need to also consider that Facebook is opening a huge data center in Prineville and Google’s server farm is located in The Dalles.

http://oregonbusinessreport.com/2010/12/transcript-sen-wyden-business-summit-remarks/

There are more effective ways t grease the skids than maxing out on campaign contributions.

Re: Re: Re:2 Re: Re: Re: Re:

Perhaps you need to also consider that Facebook is opening a huge data center in Prineville and Google’s server farm is located in The Dalles.

Interesting, especially as the link you posted only mentioned this in passing, as evidence of job creation there. It did not mention anything about any bills that helped this along – unlike the logging or biomass industries, which Wyden explicitly connected to Washington policies.

It’s also interesting how this would make Wyden a “pet senator” of Google, and not Jeff Merkley, the other Senator from Oregon. Nor, for that matter, do you mention Greg Walden, Earl Blumenauer, Peter A. DeFazio, or Kurt Schrader – the House members from Oregon.

You also fail to mention that Google has data centers in Seattle, Chicago, Houston, Miami, two in Atlanta, four in California, and three in Virginia. I guess all the Senators in those states are also “pet senators,” right?

And besides – who cares what Google thinks? The outrage over ACTA is not driven primarily by Google, or any other tech company. The ones who have the biggest concerns are civil liberties and consumer rights groups: the EFF, the Electronic Privacy Information Center, the Future of Music Coalition, the Liberty Coalition, the CDT, the Open Content Alliance, the Sunlight Foundation, OpenTheGovernment.org, Public Knowledge, and Change Congress. Op-ed’s against it have appeared even in conservative magazines like Forbes. Not to mention the huge opposition to the treaty from the European Union, Mexico, China, and pretty much the entire Third World.

Presenting everyone who is opposed to ACTA as “a tool of Google” is spreading FUD, pure and simple.

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