Comment by Thirty Law Professors:
SUMMARY: We write to call on the Obama administration to comply with the Constitution by submitting the Anti-Counterfeiting Trade Agreement (ACTA) to Congress for approval.
The executive branch lacks constitutional authority to enter international agreements on intellectual property without congressional consent. The regulation of intellectual property and of foreign commerce, which are at the heart of ACTA’s terms, are Article I Section 8 powers of Congress; the President lacks constitutional authority to enter international agreements in this area as sole executive agreements lacking congressional authorization or approval.
The unconstitutionality of the process by which the Obama Administration intends to implement ACTA is further highlighted by the fact ACTA will constrain U.S. law by locking in the policy choices ACTA makes and the requirements it imposes. The choice of whether to adopt substantive constraints on U.S. law must be made with Congressional participation. That participation is even more critical here, because ACTA was drafted and negotiated under unprecedented and deliberate secrecy — a non-accountable process that excludes the meaningful participation of a wide range of interests. The process by which ACTA was created and the means by which the Obama administration intends to implement it is undemocratic and unconstitutional. Together, they create a dangerous new process for international intellectual property lawmaking that should be rejected.
FULL SUBMISSION: ACTA Comment – Thirty Professors USTR-2010-0014