The following is an excerpt from Jack Goldsmith’s blog titled “The Doubtful Constitutionality of ACTA as an Ex Ante Congressional-Executive Agreement.” For the full blog, click here.
Dozens of scholars have written a letter to complain about the constitutional basis for President Obama to ratify the Anti-Counterfeiting Trade Agreement (ACTA). ACTA, for those who don’t know, is a controversial trade pact designed to tighten domestic enforcement of global intellectual property rules. The administration originally maintained that it had the authority to join ACTA for the United States as a sole executive agreement, without authorization from Congress or consent by the Senate. (Many argued that the Constitution did not authorize the president to join ACTA by sole executive agreement – including Larry Lessig and me, here.)
The Obama administration has apparently dropped the sole executive agreement argument and now claims that the Congress authorized him to enter into ACTA. In a letter a few months ago to Senator Wyden, Legal Advisor Harold Koh suggested that Congress had authorized the executive branch to negotiate and conclude ACT in Section 8113(a)(6) of the 2008 PRO-IP Act.
While I have not studied the history of statutory authorizations for ex ante congressional-executive agreements (and thus do not know whether thin and abstract congressional nods of the sort found in Section 8113(a) suffice in other contexts), I find the scholars’ response to this suggestion persuasive.