So, we’ve shot down both the Stop Online Privacy Act (“SOPA”) and the Protect IP Act (“PIPA”); good news right? Well, not exactly. This past October, along with twenty two other European Nations, the United States became a signatory to the Anti-Counterfeiting Trade Agreement (“ACTA”).  Originally developed by the United States, Switzerland, and Japan in 2007, ACTA’s stated purpose is to create standards for the international enforcement of intellectual property rights (Electronic Frontier Foundation).

I think everyone would agree that the protection of intellectual property is an essential component of a functioning global economy, but “ACTA has several features that raise significant potential concerns for consumers’ privacy and civil liberties[,] for innovation and the free flow of information on the Internet[, for] legitimate commerce[,] and for developing countries’ ability to choose policy options that best suit their domestic priorities and level of economic development” (Id). While certainly substantial, I don’t want to focus this post on the substance of ACTA. (Feel free, of course, to explore these issues by commenting below.) What I really want to do here, is to discuss what one author describes as the “public policy moral hazard” of ACTA (Sean Flynn, ACTA’s Constitutional Problem: The Treaty is not a Treaty).

It’s ridiculous that it has taken five years for ACTA to come into public view. So, if you haven’t heard much about ACTA until now, “don’t be surprised. You see, you really weren’t supposed to hear anything about ACTA until well after it was ratified and far too late for the rabble to do anything about it” (Joe Brockmeier, Thought SOPA Was Bad? 10 Reasons to Oppose ACTA). Negotiations over ACTA have taken place in secret, outside institutions like the UN or the WTO. And, on the U.S. side, the actual text of ACTA has been kept so secret that “few lawyers outside of Washington have read it” (Pace Law School NewsWire, Prof. Ben Gershman comments on ACTA in Tech Week Europe).

Indeed, it has been more than three months since President Obama ratified ACTA on behalf of the United States- without so much as congressional debate. Wait a minute, you say, I thought that regulation of intellectual property and of domestic and foreign commerce are Article I powers. If the President is going to sign an International trade agreement, doesn’t he need congressional approval? You would ordinarily be correct, except here, President Obama ratified ACTA by signing an Executive Agreement.

Executive Agreements are the functional equivalents of Article III treaties. In fact, the difference between Executive Agreements and treaties have never been clearly defined. My murky understanding is that Executive Agreements are appropriate for matters considered less important than those requiring treaties. The bottom line, however, is that Executive Agreements allow the President to evade Senate consent requirements (See US Const. Art. II, § 2 [providing the President the power to make treaties with two-thirds vote of the Senate]).

Moreover, ACTA is constitutionally questionable even if we assume the legitimacy of Executive Agreements. In his article, ACTA’s Constitutional Problem: The Treaty is Not a Treaty (cited above), Sean Flynn argues that most Executive Agreements are “extensions of the President’s independent authority to act as Commander in Chief of the Army and Navy; to receive ambassadors from, and thereby recognize, foreign nations; or to issue pardons” (Id). In stark contrast, Flynn continues, ACTA exceeds the President’s constitutional authority because regulation of its subject matter rests in powers delegated solely to Congress. “Because the entry of ACTA unilaterally exceeds the President’s constitutional authority,” Flynn concludes that ACTA is not a binding international agreement under U.S. law (Id).

However, if the European Parliament ratifies ACTA, the United States may very well be bound by its provisions under international law. The Vienna Convention on the Law of Treaties, art. 2(1)(a), defines a “treaty” under international law as any written agreement between States where each party intends for the agreement to be binding. Because customary international law recognizes the ability for a State to bind itself to a treaty through the consent of its Executive, the “lack of constitutional authority of the [E]xecutive to enter ACTA on its own accord may not prevent the United States from being bound” under international law (Flynn). The only issue, then, is one of enforcement.  Given current international legal regimes, I doubt that enforcing ACTA against the United States is feasible. In other words, there is no real enforcement power to back up this otherwise binding agreement.

The United States, on the other hand, will likely enforce ACTA on its own accord. But, I don’t see a legal basis for this. First, President Obama signed this Agreement under what are, at best, constitutionally questionable circumstances. Second, it is the job of Congress to legislate. Some might argue that customary international law, in allowing the intent of the Executive to bind a State, operates as federal common law in the United States because the President is recognized as speaking for the United States on the international plane. It seems to me, however, that this is a clear violation of the separation of powers; the Executive cannot create federal common law.