[Ip-health] Law Professors Declare Anti-Counterfeiting Trade Agreement Unconstitutional Without Congressional Approval

Michael Palmedo mpalmedo at wcl.american.edu
Wed May 16 07:29:52 PDT 2012

May 16, 2012

Sean Flynn, American University
202-274-4527, sflynn at american.edu 
Margot Kaminski, Yale University 
margot.kaminski at yale.edu 


Law Professors Declare Anti-Counterfeiting Trade Agreement
Unconstitutional Without Congressional Approval 

Today, fifty U.S. legal scholars sent an open letter to the Members of
the Senate Finance Committee, asking each of them to "exercise your
Constitutional responsibility to ensure that the Anti-Counterfeiting
Trade Agreement (ACTA) is submitted to [Congress]."

The full letter is available at infojustice.org/senatefinance-may2012  

The letter responds to the Department of State Legal Advisor Harold
Koh's March 6, 2012, letter to Senator Ron Wyden, which claims that ACTA
did not require Congressional approval because it received prior
authorization by the 2008 PRO-IP Act. The letter explains:

"First, the plain language of [the PRO-IP Act] does not authorize USTR
to bind the US to any international agreement. Rather, the section
merely describes the purposes of a "Joint Strategic Plan against
counterfeiting and infringement," to be coordinated among multiple
agencies by the Intellectual Property Enforcement Coordinator (IPEC). .
. . 

"Second, the PRO-IP act cannot be an ex ante authorization for ACTA
because it was not temporally ex ante. The ACTA negotiation began in
2007. PRO-IP was not passed until 2008[.]"

The letter thus concludes that "the Administration currently lacks a
means to Constitutionally enter ACTA without ex post Congressional

PIJIP Associate Director Sean Flynn explains the context of the letter
in a blog posted this morning at infojustice.org/archives/23390 

Also today, the Electronic Frontier Foundation released documentation
that ACTA never was submitted to the normal State Department review
process to determine its legality before it was signed by the United
States, available at www.eff.org/deeplinks.


"Unfortunately, these kind of Constitutional issues over whether
Congress, in fact, provided ex ante authorization for a specific treaty
are hard (perhaps impossible) to litigate. The real solution, if
Congress thinks the executive has overstepped its authority, is exactly
what Senator Wyden has proposed - revoke any claimed ex ante
authorization so that, to bind the U.S., the agreement must pass through
Congress. Then we can finally have a public debate over the desirability
of that set of policy choices that we were denied through the secretive
negotiation process."

-          Sean Flynn, Associate Director, Program on Information
Justice and Intellectual Property, American University Washington
College of Law


"USTR knows that if ACTA goes to Congress, there's a risk that ACTA will
be amended or rejected. So USTR keeps offering inadequate justifications
for keeping Congress away. First, USTR claimed the President could go it
alone; now, they claim that Congress already authorized ACTA. Neither of
these things are true. The Constitution requires Congress to be involved
in ACTA. We aim to encourage Congress to execute its Constitutional
responsibility, rather than permit the executive branch to pretend that
Congress has already had its say."

-          Margot Kaminski, Executive Director, Information Society
Yale Law School


"These professors are sending a powerful message to the Senate and to
the Obama Administration. We hope they will listen to it and act
accordingly, the Administration by submitting ACTA to the Senate and the
Senate by taking it up."

-          Rashmi Rangnath, Director, Global Knowledge Initiative
Public Knowledge


"ACTA was negotiated with unprecedented secrecy, in a process intended
to evade Congressional review. This is particularly troubling because
ACTA contains broad IP enforcement powers that will impede Congress'
ability to engage in domestic law reform, and gives the final say on
ACTA's implementation in U.S. law to an unelected ACTA Committee. We
welcome the call for Congressional oversight to rectify this
unconstitutional power grab, and to preserve the fundamental separation
of powers embodied in the US Constitution."

-          Gwen Hinze, International IP Director
Electronic Frontier Foundation




More information about the Ip-health mailing list