When the US signs ACTA tomorrow in Japan, the signing statement is likely to state something like “ACTA is entirely consistent with US law and therefore requires no implementing legislation.” This will be a defense of Obama’s new assertion of unilateral international law making power, dramatically expanding the scope of the president’s claimed authority to enter “sole executive agreements” in areas of policy assigned to Congress by the Constitution.
The statement will contain two wrong assertions.
The second part about requiring no implementing legislation is a bold assertion that the President can enter into binding international agreements on matters within Congress’s constitutional authority (including the Article I powers to regulate foreign trade and to protect intellectual property) without congressional authorization or approval. As reported previously, this assertion has been challenged by numerous legal scholars with no rebuttal by the Administration. Unfortunately, no one Congress seems concerned about this power grab yet. If they let this one go by, it could dramatically alter the balance of power between the President and Congress.
Binding the US to ACTA without Congressional consent is unconstitutional whether or not the agreement is entirely consistent with US law. But the assertion that ACTA is consistent with US law has been repeatedly challenged too, including in an analysis of an older version of ACTA by 75 law professors.
Since the final December text of ACTA was released, with the declaration from USTR that the drafting was finished and no more public comments on the substance would be received, there was a lull in critical analysis of the question of whether all the inconsistencies between ACTA and US law were resolved.
KEI has taken the task back up and published a blog today that analyzes several aspects of the injunctions and damages provisions in ACTA that appear to go beyond, and certainly are not “entirely consistent with” US law. White House Counsel should read it before they sign off on the President’s signing statement.