8/2/2019 Anti-Counterfeiting Agreement Raises Constitutional Concerns

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25/12 Jack Goldsmith and Lawrence Lessig - Anti-counterfeiting agreement raises constitut ional concerns

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Ani-conefeiing ageemen aie

coniional concen

By Jack Goldsmith and Lawrence Lessig

Friday, March 26, 2010; A23

The much-criticized cloak of secrecy that has surrounded the Obamaadministration's negotiation of the multilateral Anti-Counterfeiting Trade

Agreement was broken Wednesday. The leaked draft of ACTA belies the U.S.

trade representative's assertions that the agreement would not alter U.S.

intellectual property law. And it raises the stakes on the constitutionally

dubious method by which the administration proposes to make the agreement

binding on the United States .

The goal of the trade pact is to tighten enforcement of global intellectual property rules. The leaked draft, though incomplete in

many respects , makes clear that negotiators are considering ideas and principles not reflected in U.S. law.

ACTA could, for example, pressure Internet s ervice providers -- such as Comcast and Verizon -- to kick users offline when they

(or their children) have been accused of repeated copyright infringement because of content uploaded to sites s uch asYouTube. It also might oblige the United States to impos e criminal liability on those who "incite" copyright v iolation. The draft

more generally address es " IP infringement" and thus could extend some of its rules to t rademark and possibly patent law in

ways that, after inevitable international compromises, will depart from U.S. law. It also contemplates creating an international

"oversight council" to supervise (and poss ibly amend) aspects of the agreement.

These proposals might or might not make sense. But they ought at least be subject to public deliberation. Normal constitutional

procedures would require the administration to submit the final text of the agreement for Senate approval as a treaty or to

Congress as a "congressional-executive" agreement. But the Obama administration has suggested it will adopt the pact as a

"sole executive agreement" that requires only the president's approval.

Such an ass ertion of unilateral executive power is usually reserved for insignificant matters. It has sometimes been employed in

more important contexts, such as when Jimmy Carter ended the Iran hostage crisis and when Franklin Roos evelt recognized and

set tled expropriation claims with the Soviet Union.

The Supreme Court, however, has never clarified the limits on such agreements . Historical practice and cons titutional structure

suggest that they must be based on one of the president's express constitutional powers (such as the power to recognize

foreign governments) or at least have a long historical pedigree (such as the president's claims settlement power, which dates

back over a century).

Joining ACTA by sole executive agreement would far exceed these precedents. The president has no independent

cons titutional authority over intellectual property or communications policy, and there is no long historical practice of making

sole executive agreements in this area. To the contrary, the Constitution gives primary authority over these matters to Congress

which is charged with making laws that regulate foreign commerce and intellectual property.

The administration has suggested that a sole executive agreement in this instance would not trample Congress's prerogativesbecaus e the pact would not affect U.S. domestic law. Binding the United States to international obligations of this sort without

congressional approval would raise serious constitutional questions even if domestic law were not affected. In any event, an

anti-counterfeiting agreement made on the president's own authority could affect domestic law in at least three ways:

First, the noncriminal portions of this agreement that contemplate judicial enforcement can override inconsistent s tate law and

poss ibly federal law. Second, the agreement could invalidate s tate law that conflicts with its general policies under a doctrine

known as obs tacle preemption, even if the terms are not otherwise judicially enforceable. Third, a judicial canon requires courts

to interpret ambiguous federal laws to avoid violations of international obligations . This means courts will cons true the many

ambiguities in federal laws on intellectual property, telecom policy and related areas to conform to the agreement.

If the president proceeds unilaterally here, ACTA will be challenged in court. But the best route to constitutional fidelity is for

8/2/2019 Anti-Counterfeiting Agreement Raises Constitutional Concerns

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25/12 Jack Goldsmith and Lawrence Lessig - Anti-counterfeiting agreement raises constitut ional concerns

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Po a Commen

Congress or the Senate to protect its constitutional prerogatives. When the George W. Bush administration s ugges ted it might

reach a deal with Russ ia on nuclear arms reduction by sole executive agreement, then-Sen. Joe Biden wrote to Secretary of State

Colin Powell ins isting that the Constitution required Senate consent and implicitly threatening inter-branch retaliation if it was

not given. The Bush administration complied.

Congress should follow Biden's lead. If the president succeeds in expanding his power of sole executive agreement here, he wil

have es tablished a precedent to bypass Congress on o ther international matters related to trade, intellectual property and

communications policy.

These mostly secret negotiations have already violated the Obama administration's pledge for greater transparency. Embracing

this deal by sole executive agreement would repudiate its pledge to moderate assertions of executive power. Congress should

resist this attempt to evade the checks es tablished by our Framers.

Jack Goldmih and Laence Leig ae pofeo a Haad La School. Goldmih i co-aho of "Who Conol he

Inene?" Leig i he aho of "Remi: Making A and Commece Thie in he Hbid Econom."

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