The conflict between Senator Wyden and the administration over the constitutionality of ACTA continued anew last week.

As previously reported, Senator Wyden wrote a letter to President Obama in October, 2011, challenging USTR’s claimed authority to bind the United States to ACTA without Congressional consent. The complaint, echoing several academic commentators (Flynn, Lessig & Goldsmith, Hathaway & Kapczynski) and a submission to USTR signed by 30 law professors, is that Congress must approve any binding international agreement on intellectual property minimum legislative standards because the regulation of intellectual property and of international trade are Article I section 8 powers of Congress. The President can only constitutionally use a sole executive agreement to bind the country on matters that within the sole executive province of the President, which making IP law is not. So Wyden demanded the Administration submit the agreement to Congress or explain why it does not have to.

We now have the administration’s response, and it is pretty flimsy. Without describing the constitutional basis for its action, Ron Kirk, on behalf of the administration, basically explained that administrations have done other agreements on IP and other issues without submitting them to Congress before, so it can do it again now. This is not a constitutional justification, of course. I speed on my way to work every day, but that does not get me out of the ticket when I get caught.

The response is also telling in the precedents cited by Kirk. As any observer of international trade agreements knows well, nearly every IP minimum standards agreement from TRIPS and NAFTA to the KOREA FTA was submitted to Congress for its approval, normally as a congressional-executive agreement subject to approval by a majority of both houses (rather than the two thirds vote of the senate required for treaties). The last four agreements cited as precedents by Kirk do not alter this history. They appear to be traditional subjects of sole executive agreements. They implement administrative (as opposed to legislative) rules and practices or, in the last case, settle an ongoing trade dispute. But the first five agreements in Kirk’s list do indeed appear to be other IP agreements binding the US to a particular course of legislation without any approval by Congress. It is notable that the first of these was labeled a “memorandum of understanding,” perhaps attempting to signal that it is not intended as a binding international agreement. But the terms of the agreements do appear to tie Congressional hands in the forming of US legislation, without any consent by Congress.

This should lead Congress to ask more, not fewer, questions. Which is exactly what Wyden has done in new letter to the administration, this time addressed to its top international law expert – Department of State Legal Advisor and former Yale Law School Dean Harold Koh. Wyden asks:

If ACTA is entered by the President without Congressional consent, what will be the nature of the agreement and its legal implications under U.S. and international law? For example, is it the Department of State’s opinion that ACTA will be equivalent to a nonbinding “memorandum of understanding,” like some of the intellectual property agreements cited by USTR in the attached letter? Can ACTA be a valid and binding “sole executive agreement” under the U.S. Constitution, even though the regulation of intellectual property is not a sole executive function under the Constitution? Or must ACTA, to be binding, be a form of Congressional-executive agreement by virtue of ex ante or ex post congressional approval? What is the nature of the international legal obligations that ACTA would create? Would the U.S. be in violation of the agreement if the Congress changed federal law in a way not consistent with the agreement, for example by ridding our law of statutory damages for online copyright infringement? What would be the implications of such a violation? What are the constitutional limits on the President binding the U.S. to legislative minimum standard agreements over matters delegated to Congress under Article I Section 8 of the Constitution? Is the President free to bind the U.S. to any international agreement he chooses merely because he deems them to be consistent with U.S. law? (It is worth noting that many experts believe that ACTA is not, in fact, consistent with current U.S. law.)

Perhaps we will receive a more substantive explanation from Dean Koh.

AGREEMENTS CITED BY USTR AS PRECENDENTS FOR ACTA AS A SOLE EXECUTIVE ORDER

1. Trinidad And Tobago Intellectual Property Rights Agreement http://tcc.export.gov/Trade_Agreements/All_Trade_Agreements/exp_005407.asp

2. Jamaica Intellectual Property Rights Agreement http://tcc.export.gov/Trade_Agreements/All_Trade_Agreements/exp_005444.asp

3. Ecuador Intellectual Property Rights Agreement

http://tcc.export.gov/Trade_Agreements/All_Trade_Agreements/exp_002812.asp

4. Hungary Intellectual Property Rights Agreement http://tcc.export.gov/Trade_Agreements/All_Trade_Agreements/exp_005349.asp

5. Nicaragua Intellectual Property Rights Agreement http://tcc.export.gov/Trade_Agreements/All_Trade_Agreements/exp_005869.asp

6. Mexico Agreement Regarding Test Data Acceptance http://tcc.export.gov/Trade_Agreements/All_Trade_Agreements/exp_005750.asp

7. European Union Distilled Spirits And Spirit Drinks Agreement http://tcc.export.gov/Trade_Agreements/All_Trade_Agreements/exp_002818.asp

8. Memorandum of Understanding Between the Department of Transportation of the United States of America and the Secretaria de Comunicaciones y Transportes of the United Mexican States on International Freight Cross-Border Trucking Services http://www.fmcsa.dot.gov/documents/Mexican_MOU_Eng.pdf

9. Press release on the EU Beef agreement http://www.ustr.gov/about-us/press-office/press-releases/2009/may/ustr-announces-agreement-european-union-beef-hormones-