Only a Supreme Court Challenge Can Overturn ACTA

By Wayne Rash  |  Posted 2012-01-25 Print this article Print

Likewise, now that Congress is aware that they've been cut out of the loop, despite the Constitutional requirement that all such treaties and agreements be ratified by Congress, is attempting to take action. U.S. Sen. Ron Wyden (D-Ore.), the same senator who killed PIPA by putting a public hold on it, has written President Obama demanding an explanation.

The White House is trying to avoid Congressional hearings for obvious reasons. The President doesn't want to upset his donors at the RIAA and MPAA by having this agreement suffer the same fate as PIPA and SOPA. When the disclosures finally come out, you'll see just how big the donations by the movie and recording industry to the President's re-election PAC are. In a word, huge.

But just because it's secret doesn't mean the agreement isn't the same as a treaty. Nor does it mean that doing an end-run around the constitutional requirement to get the approval of Congress is legal. Chances are, it's not. According to Professor Bennett Gershman, a constitutional law expert at Pace University Law School, this executive agreement, like most others, is unconstitutional.

Professor Gershman said that these agreements have been a subject of discussion in the legal community for years. "There's strong agreement that executive agreements are a fraudulent means of avoiding congressional requirements," Professor Gershman said in an interview with eWEEK.

The problem is that doing something about unconstitutional actions on the part of the U.S. Trade Representative is a difficult task. The action clearly has the support of President Obama, who signed the agreement in October. The only overt action that Congress can take is to challenge ACTA in the U.S. Supreme Court.

But of course there are other things that can be done. For example, when the USTR budget comes before Congress, the agency's budget may find that all funds for any action related to ACTA are cut off. This means that the USTR can take no action of any kind regarding ACTA without incurring severe criminal penalties for misuse of funds. Or Congress can include action in some bill that the President really wants, so that by signing it, the President also agrees to submit ACTA to Congress for ratification. Theoretically, the House of Representatives could even impeach the President for doing something clearly prohibited by the Constitution, although that's really unlikely.

What's really sad is that there's a lot that's in the Anti-Counterfeiting agreement that's important, such as creating a means for fighting the traffic in fake prescription drugs or counterfeit aircraft parts. Had this agreement been open for public discussion, perhaps the parts that really are necessary would be there, but the parts that impinge on free Internet commerce would not. Now it's an all or nothing agreement.

This story was updated to correct the spelling of U.S. Sen. Ron Wyden's (D-Ore.) name.

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Wayne Rash Wayne Rash is a Senior Analyst for eWEEK Labs and runs the magazineÔÇÖs Washington Bureau. Prior to joining eWEEK as a Senior Writer on wireless technology, he was a Senior Contributing Editor and previously a Senior Analyst in the InfoWorld Test Center. He was also a reviewer for Federal Computer Week and Information Security Magazine. Previously, he ran the reviews and events departments at CMP's InternetWeek.

He is a retired naval officer, a former principal at American Management Systems and a long-time columnist for Byte Magazine. He is a regular contributor to Plane & Pilot Magazine and The Washington Post.

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