[Ip-health] IP Watch: US Senator Questions Constitutionality of ACTA

Krista Cox krista.cox at keionline.org
Wed Oct 12 10:25:11 PDT 2011


US Senator Questions Constitutionality Of ACTA
Published on 12 October 2011 @ 7:10 pm

By William New, Intellectual Property Watch

The Obama administration’s recent signing of the Anti-Counterfeiting Trade
Agreement may face a US constitutional challenge as a member of the US
Senate today called into question the administration’s power to negotiate
and enter into such a trade agreement without Congress’s approval.

Sen. Ron Wyden, an Oregon Democrat often out front on technology issues,
sent a 12 October letter addressed to President Obama taking issue the US
Trade Representative (USTR)’s assertions that the ACTA is a “sole executive
agreement” which can be entered into and implemented without the legislative
branch’s involvement. USTR, which is part of the White House, has repeatedly
said the agreement does not require changes to US law.

“[T]he executive branch lacks constitutional authority to enter into binding
international agreements on matters under Congress’s plenary powers,
including the Article I powers to regulate foreign commerce and protect
intellectual property,” the letter states. “Yet, through ACTA and without
your clarification, the USTR looks to be claiming the authority to do just

Wyden demanded that the administration either declare that ACTA does not
create any international obligations for the US and therefore is
“non-binding,” or provide a legal rationale to the Congress and the public
as to why ACTA should not be considered by Congress.

A number of law professors have doubts about the legality of the ACTA. A
constitutional challenge can be launched if a member of Congress contests
the agreement, according to sources.

Wyden’s press release and letter are here.

ACTA was signed on 1 October by a number of the negotiating countries (IPW,
Bilateral/Regional Negotiations, 4 October 2011).

Krista Cox
Staff Attorney
Knowledge Ecology International
(202) 332-2670

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