The occasion of Senator’s Wyden’s proposed amendments halting the US ratification of ACTA without express (ex post) congressional approval provides a fine time to analyze the legal justification the administration has offered thus far for entering ACTA without congressional approval. The recent justification by the State Department abandons the “sole executive agreement” rationale for ACTA. But it still fails to point to a clear authorization for entering ACTA without congressional approval.

The administration’s justification took an about face on March 6, 2012, when Department of State Legal Advisor Harold Koh refused to back USTR’s theory that it could enter any agreement that does not change US law (but binds Congress not to change it) without Congressional consent. Instead, Koh described ACTA as a ‘congressional-executive agreement’ that Congress approved of ex ante (my words, not his). He cited as authority for entering ACTA without further Congressional approval — “legislation explicitly calling for the Executive Branch to work with countries to enhance enforcement of intellectual property rights.” For example, he noted, the PRO IP Act (15 U.S.C. 8113(a)) “calls for the Executive Branch to develop and implement a plan aimed at ‘eliminating . . . international counterfeiting and infringement networks” and to “work[] with other countries to establish international standards and policies for the effective protection and enforcement of intellectual property rights.”

If Congress in fact delegated authority to the executive to negotiate a new international treaty binding U.S. legislation without further Congressional action, then, indeed, the Executive would have the power to do so. But is that what Congress did in the Pro-IP Act? Given the robust debates that surround granting the executive circumscribed “fast track” authority to negotiate agreements subject only to an up or down vote by Congress (which the executive currently lacks), it might seem odd that Congress so willfully gave complete power to the executive to negotiate new intellectual property treaties without even an up or down vote to follow.

A closer look at the language cited by Koh shows a lot more ambiguity. Section 8111 creates the office of the Intellectual Property Enforcement Coordinator, puts her in charge of “the interagency intellectual property enforcement advisory committee” and orders the committee to “coordinate the development of the Joint Strategic Plan against counterfeiting and infringement.” The parts quoted by Koh are elements required to be in the plan. So the law says that the administration has to have a “plan” to “work[] with other countries to establish international standards and policies for the effective protection and enforcement of intellectual property rights.” The Administration is now taking this as authority to make the treaty itself and to bind the US to it without any further congressional action. This seems to be quite a leap.

Unfortunately, these kind of constitutional issues over whether Congress in fact provided ex ante authorization for a specific treaty are hard (perhaps impossible) to litigate. The real solution if Congress thinks the executive has overstepped its authority is exactly what Senator Wyden has proposed – revoke any claimed ex ante authorization so that, to bind the US, the agreement pass through Congress. Then we can finally have a public debate over the desirability of that set of policy choices that we were denied through the secretive negotiation process.