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Please join fellow legal academics in signing this draft statement to the administration on the constitutional problem with ACTA. The submission is open for editing comments and signatures until FRIDAY FEBRUARY 11 AT 4PM eastern standard time. The submission is open to any self identified “legal academic.” We welcome part time teachers and such and also academics from other disciplines that work on international trade law (international relations, etc.).
FULL TEXT – Statement to the Obama Administration on the Constitutional Problem with ACTA
To sign on or edit, send an email to me and cc Mike Palmedo (mpalmedo@wcl.american.edu). Please indicate if your signature relies on acceptance of any suggested edits.
The initial signatories to the statement include myself, Brook Baker, Anthony Falzone, Lawrence Lessig, David Levine, Kevin Outterson, Frank Pasquale and Christopher Sprigman.
The summary of the argument of the submission is pasted below.
SUMMARY OF ARGUMENT
We write to call on the Obama administration to comply with the Constitution by submitting the 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 that 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.
