[A2k] Inside US trade on Wyden ACTA letter

Sean Flynn sflynn at wcl.american.edu
Mon Oct 17 06:34:29 PDT 2011

Inside U.S. Trade - 10/14/2011

Wyden Questions Constitutionality Of USTR's Final Approval Of ACTA

Posted: October 13, 2011


Sen. Ron Wyden (D-OR), in a letter sent this week to President Obama,
warned that the constitutional authority of Congress to regulate matters
related to international commerce and to protect international
intellectual property could be circumvented if the administration gives
final approval to the Anti-Counterfeiting Trade Agreement (ACTA).


Wyden, who chairs the Senate Finance trade subcommittee, stopped short
of demanding that the White House submit ACTA to Congress for approval
in the Oct. 12 letter. But he did request that the administration
formally declare the agreement is not binding on the United States
before formally depositing its instrument of ratification, which is the
final step for the United States in its approval process.


If this request is not met, Wyden demanded that the administration
provide Congress and the public with a legal rationale for why ACTA does
not fall under the purview of Congress, and that the administration work
with Congress "to ensure that we reach a common understanding of the
proper way for the U.S. to proceed with ACTA."


Contrary to the claims of the Office of the U.S. Trade Representative,
Wyden argued in his letter that ACTA is not a "sole executive agreement"
that does not need congressional approval. USTR argues that ACTA does
not need congressional approval because its implementation does not
require any changes to U.S. law.


But Wyden argued that ACTA is not a sole executive agreement because
such agreements only govern matters delegated by Article II of the
Constitution to the sole province of the president. Article II covers
the president's authority over troop movements as commander in chief of
the armed forces; to grant pardons; and to nominate ambassadors, judges
and other officials. Article II also gives the president the authority
to "make" treaties but still requires a two-thirds approval from the


ACTA, by contrast, covers matters of foreign commerce and intellectual
property, which appear to relate to Article I powers of Congress and are
"not issues lying within the president's sole constitutional authority,"
according to the letter.


In a fact sheet released last week, USTR stated that ACTA "is consistent
with U.S. law and does not require the enactment of implementing
legislation. The United States may therefore enter into and carry out
the requirements of the agreement under existing legal authority, just
as it has done with other trade agreements."


Wyden contended in his letter that this USTR statement is "conflating
two separate stages of the process." He concedes that, once the United
States has "entered" into an international agreement like ACTA, it does
not need to seek congressional approval to implement the agreement if it
requires no changes to U.S. law.


But Wyden added that the administration lacks the authority to
unilaterally "enter" into an agreement like ACTA in the first place
because it covers issues that fall under congressional authority and
that are not delegated to the president under Article II of the


At the same time, Wyden agreed with USTR statements that ACTA, because
Congress did not approve it, will not alter U.S. law. He also agreed
that ACTA does not limit Congress' authority to change U.S. law as it
sees fit, even if this means changing U.S. laws so that they no longer
comply with ACTA as negotiated.


Wyden pointed out, however, that while ACTA will not constrain Congress'
powers to change U.S. laws, it could make it more difficult to do so. If
Congress were to change U.S. laws in a way such that the United States
no longer complies with ACTA, it could breach its obligations under the
agreement and therefore subject the U.S. to sanctions or other


Sean M Fiil Flynn

Associate Director

Program on Information Justice and Intellectual Property (PIJIP) 

American University Washington College of Law
4801 Massachusetts Ave., NW 
Washington, D.C. 20016
(202) 274-4157            


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