Scholars Say ACTA Needs Senate Approval 204
suraj.sun passes along this excerpt from Wired:
"More than 70 academics, mostly legal scholars, are urging President Barack Obama to open a proposed international intellectual-property agreement to public review before signing it. The likely route for that is bringing the [Anti-Counterfeiting Trade Agreement] to the Senate for ratification. ... the intellectual property accord, which Obama could sign by year's end, has pretty much been hammered out in secret between the European Union, Japan, the United States and a few other international players, including Canada and Australia. Noticeably absent is China. That said, these academics suggested that Obama does not have the authority to unilaterally sign the accord, which has been in the works for three years and is nearly final. Instead, they said, it should be considered a treaty, necessitating two-thirds Senate approval."
We need scholars to tell us that? (Score:2, Interesting)
Re:We need scholars to tell us that? (Score:5, Informative)
For the curious, Article 2, Section 2:
"[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur."
Treaties of the United States have to be ratified by the Senate. This is hardly news.
Re:We need scholars to tell us that? (Score:5, Informative)
Yes, but Obama is trying to pass this off as being something other than a treaty.
Re:We need scholars to tell us that? (Score:5, Funny)
That can't be, he ran on a platform of openness and transparency.
Re: (Score:3, Insightful)
The central position in government is trying to pull more power into it's office ?
Stop the presses !
Besides, Americans are really lucky. In European countries (all EU member states), international treaties only have to be ratified by the minister of foreign affairs, and take precedence over the constitution of the signatory countries. Obama's simply trying to destroy the sovereignty of America the way Barosso succeeded in doing to the European countries.
Barosso destroyed the sovereignty of these countries,
Re: (Score:3)
*Barroso, the fucking son of a bitch who forced us to support the Irak war despite major public opposition (a rally of 80 000, which is rare here) before escaping to the EC mid-term.
Re:We need scholars to tell us that? (Score:4, Informative)
That can't be, he ran on a platform of openness and transparency.
And this has been ongoing for over 3 years, which means Mr Obama didn't even originate it.
Re:We need scholars to tell us that? (Score:5, Insightful)
That can't be, he ran on a platform of openness and transparency.
And this has been ongoing for over 3 years, which means Mr Obama didn't even originate it.
What's that got to do with it? He's going to implement it, and bypass Congress to do it if he can get away with it. He is not required to complete something this stupid. He's going to implement it because increasing government power, with the necessarily required reduction in personal freedom that a more powerful government is predicated upon, is his goal. The sum of everything he's done since he's been in office is: more power to government, less freedom for the individual.
Re:We need scholars to tell us that? (Score:4, Insightful)
The sum of everything he's done since he's been in office is: more power to government, less freedom for the individual.
Name the last president who didn't live by that motto. Depending on your political leanings, I'd guess the most recent ones you could argue that about would be Carter or Eisenhower, but I'd put my money on either the forgettable presidents in Laissez Faire or George Washington (who in his insight, indicated in his fairwell address, that a party system would be the downfall of the country, and it may have taken a while to manifest, but it seems to be the case now).
Re:We need scholars to tell us that? (Score:4, Informative)
By doing just what's being discussed here, by claiming the ACTA isn't a treaty and attempting to use an Executive Agreement to give it the force of law. If he gets away with that he's bypassed the Senate.
Re: (Score:3, Interesting)
I can see how people fearing the worst will assert all manner of evil to someone they don't like, but I fail to see how he's going to get away with something that everyone who's ever even wiped their ass with the Constitution knows is illegal. If Obama is correct, that the treaty is exportation of US law and thus ne
Re: (Score:3, Informative)
How did the patriot act pass?
With the approval of the House and Senate, as it turns out.
Re: (Score:2)
Re: (Score:2)
Whether you like it or not he won't hide it from you and be open about doing it.
Re:We need scholars to tell us that? (Score:4, Interesting)
I don't understand why Obama is so hung up on the ACTA. The negotiations started before he came to power, didn't they? Why is it his baby? Or is he just talking with the same lobbyists?
Re:We need scholars to tell us that? (Score:5, Informative)
Reason: GOP gets Chamber of Commerce support, Dems get Hollywood support.
Re: (Score:2)
Re: (Score:2)
wish it was as easy as putting on a pair of cool sunglasses
Ain't that the truth, but alas that only works in "They Live."
Re: (Score:2)
Re: (Score:2)
The reality is: enough of us are awake, but the elections are rigged, so it doesn't matter.
Re: (Score:2)
If enough of you were awake, you'd all vote for a party that wanted to change the system, and you'd burn the offices of Diebold to the ground.
Re:We need scholars to tell us that? (Score:4, Informative)
The question comes down to whether this is a Treaty, which would require the advice and consent of 2/3rds of the Senate, or whether it's an Executive Agreement, which ultimately comes down to just an agreement between the executive branches of other agreeing nations and signed by the Executive. Nowadays, Executive Agreements are the norm in foreign policy and not Treaties.
Re: (Score:3)
But surely an Executive Ageement has nowhere near the same power as a Treaty, right? My guess is that a Treaty is pretty much a law (sometimes stronger than a law, because a country can't unilaterally repeal it), whereas an Executive Treaty is more like saying: "how about we let our navies train together?".
Re: (Score:3, Informative)
Reading through http://en.wikipedia.org/wiki/Treaty_Clause [wikipedia.org] it sounds like one major difference is that a Treaty allows something that would otherwise be unconstitutional to be done by the federal government (see the part about "can use treaties to legislate in areas which would otherwise fall within the exclusive authority of the states").
Also note that according to the same article these distinctions are only relevant for internal US purposes; all these agreements are seen as equivalent in international la
Re: (Score:2)
So basically a president can create whatever laws he wants without interference by the Senate, as long as he can give an international spin to it and can get at least one other country to do the same?
And it shouldn't be too unconstitutional, of course.
Sounds like an awful lack of checks and balances.
Re: (Score:2)
I think it would come down to what happens in an American court were a case to come up that violated an executive agreement. Does anyone know of a precedent?
Re: (Score:2)
http://www.washingtonpost.com/wp-dyn/content/article/2010/03/25/AR2010032502403.html [washingtonpost.com]
His take, in short: not bloody likely.
Re: (Score:3, Insightful)
No - executive agreements are limited in that they can only agree to things which the executive already has the power to enforce (ie things that are already laws). In this case, ACTA basically amounted to exporting the DMCA to other countries, thus administration took the point of view that no changes to the law were needed to enforce this agreement; thus it did not need to be treated as a treaty or need any congressional ratification.
These law scholars are arguing that the current draft does have sections
Re: (Score:2)
Yeah, right. Obama will tell them this is an emergency so they must vote yes immediately, after which they will be able to read the treaty to find out what they approved. That's how he's gotten all his legislation passed.
Re: (Score:2)
>>>a Treaty allows something that would otherwise be unconstitutional to be done by the federal government
Does that include Amendment 1? Or 2? Or 4? Or 5? Just sign a treaty, get 2/3rd of Senate approval, and those pesky rights can be nullified?
Re: (Score:2)
An executive agreement does not really create new law, it just 'organizes' the authority granted to the executive branch in a specific manner. The agreement is on the manner of applying such power.
For example, if Congress passed a law which granted an agency under the control of the executive to do XYZ, but it was currently only doing YZ, an executive agreement could be signed which said that the Government would now ALSO do X. (Or it could also say it would stop doing Z and just do XY).
If the agreement w
Re: (Score:3, Interesting)
Executive Agreements can have essentially the same scope as a Treaty. The primary difference between a Treaty and an Executive Agreement in its effect is the priority of supremacy they are applied.
We know from the Supremacy Clause of the Constitution that:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. - Art. VI, Sec. 2
However, within the federal laws themselves, there is a further priority of supremacy. Federal laws cannot be made in contradiction of the Constitution - for the Constitution is Supreme. Similarly, a federal statute can't be made in contradiction of a Trea
Re:We need scholars to tell us that? (Score:4, Insightful)
An Executive agreement tends to sit just slightly above federal laws, but they cannot contradict any treaties or the Constitution itself. What's the practical effect of this? Not much - but it is easier to strike them down in a court, I suppose.
So an Executive Agreement has higher supremacy than a law, despite the fact that the legislature has no say in it?
Just pointing out the gaping hole in the system.
Re: (Score:2)
"Tends to." This sort of thing hasn't yet been fully tested in court yet; it may be that Executive Agreements are inferior to federal law, or it may not. I'm unsure if there has been a single test case yet.
Re: (Score:2)
Countries can generally unilaterally repudiate treaties under international law, and in US law it is well established that an act of Congress can limit or abolish the legal force, under US law, of a treaty.
But, yes, Executive Agreements have pretty much exactly the same force as unilateral executive
Re: (Score:2)
Ok, I'll admit I've never heard of such a thing before, so I have to ask, exactly how is that not a treaty, just using a different name to try to skirt approval requirements?
Re:We need scholars to tell us that? (Score:5, Insightful)
The same way the president can issue edicts that are not laws, they're "Executive Orders." Or the Guantanamo prisoners are not prisoners of war, they're "Enemy Combatants." Or security for the G8 summit is not suppressing dissent, it's "designating Free Speech Zones." Sometimes the law or the Constitution is inconvenient to the President, so he makes up a new label for something he's not allowed to do, and decrees that the law or Constitution doesn't apply because of that label.
This is not a Democrat/Republican thing: George W. Bush and Obama are pretty different from one another yet they have both used these shenanigans routinely. It's a "power corrupts" thing. (Or perhaps a "Congress is asleep at the wheel" thing, or a "why haven't the people stormed the White House with torches and pitchforks?" thing.)
Re: (Score:2)
Yeah but most all of the executive orders are on issues the executive branch does control. I don't understand how that's the case with treaty situations.
Guantanamo is a mil base, well under exec jurisdiction, and no actual war has been declared, so its hard to call them prisoners of war. I don't particularly like the fact that non citizens are not getting reasonable protections from prosecution, but there is an argument there at least for justification.
Free speech zones I do take issue with, though its hard
Re: (Score:2, Funny)
"why haven't the people stormed the White House with torches and pitchforks?"
I was planning on storming the White House last week but then I remembered that American Idol was on.
Re: (Score:3, Insightful)
One thing about an executive order is that it is an "order" from the President to an employee of the U.S. government telling them how they are supposed to do their job. A simply and ordinary law passed by Congress can override this order, so it is subordinate to legislation passed by Congress.
Since the U.S. government is so huge and expansive, and the authority of even individual agents and employees so expansive, an executive order can have the effect and impact often that a law has, including the interpr
Re: (Score:2)
The question comes down to whether this is a Treaty, which would require the advice and consent of 2/3rds of the Senate, or whether it's an Executive Agreement
Is it torture, or enhanced interrogation? Is that a janitor or a fixed infrastructure maintenance technician? Is it one honest word or many words to hide the truth?
Re: (Score:2)
The question comes down to whether this is a Treaty, which would require the advice and consent of 2/3rds of the Senate, or whether it's an Executive Agreement
Is it torture, or enhanced interrogation? Is that a janitor or a fixed infrastructure maintenance technician? Is it one honest word or many words to hide the truth?
"It" is clearly one word, not many, which by your own dichotomy means that it must be honest.
Eivind.
Re:We need scholars to tell us that? (Score:5, Interesting)
er... yeah:
-- US Constitution [archives.gov], Article I Section 8.
That would prevent an executive order from changing Copyright or Patent laws.
Re: (Score:2)
Re: (Score:2)
>>>Executive Agreement
Where on earth is this in the Constitution? In any case, it can't overrule the Legislative branch. They can't simply choose to ignore ACTA and pass whatever laws they wish.
Re: (Score:2)
The Constitutional basis for Executive Agreement comes from the Article 2 powers of the the Executive to be the sole representative of the US in foreign matters. Yes, it's not explicit, but that's where the basis derives from.
In any case, I think it's an over-simple view that if it doesn't appear in the Constitution, then there's no force of law behind it (or is Unconstitutional). Remember, nothing in the Constitution mentioned creating the DARPA project that lead to the Internet, yet here we are.
Re: (Score:2)
For the curious, Article 2, Section 2: "[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur."
Treaties of the United States have to be ratified by the Senate. This is hardly news.
So if only 3 senators are "present", only 2 need to agree?
Re: (Score:2)
For the curious, Article 2, Section 2:
"[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur."
Treaties of the United States have to be ratified by the Senate. This is hardly news.
So if only 3 senators are "present", only 2 need to agree?
By Constitution and by traditional Senate rules [wikipedia.org], the Senate can't pass anything without a quorum (usually a simply majority) of the Senators present. In theory, that means that a treaty could theoretically be passed with only 34 senators approving (51 present * 2/3), but realistically you're not going to find times where 49 Senators are off screwing around when the Senate is in session.
Re: (Score:3, Interesting)
Sure, that's not controversial.
Its also not controversial that there are international agreements that are not treaties, and that do not require ratification by a 2/3 vote of the Senate, particularly executive agreements that can be entered into unilaterally, and agreements that are implemented by adoption of normal legislation (which, while they require action in both houses of Congress, don't require a 2/3 vote in either.)
Whether a particular
Re: (Score:3, Insightful)
...have to be ratified by the Senate.
Well, then it's a good thing the we don't have a bunch of Senators that are willing to do whatever the .*AA tell them to. Oh yeah -- damn, we're still screwed.
Re:We need scholars to tell us that? (Score:5, Funny)
I tell you, Bush Jr. is trampling all over the Constitution. I can't wait for the day he's replaced. ...
Oops.
Scholars, you say? (Score:5, Insightful)
Re: (Score:2)
Pretty much all of them, when consulting about what materials are covered by Executive Privilege. :-)
Re: (Score:2)
Re: (Score:2)
Not the above AC... but he is right except for the "dipshit" part.
Anyone actually find the list of law profs? (Score:2)
Re:Anyone actually find the list of law profs? (Score:4, Informative)
found it.
Can we think rationally here? (Score:4, Informative)
In brief, this article says: "Scholars are begging the President to take public input before signing an agreement worked out in secret with other government's leaders."
Does that sound like democracy to you? Does it even sound like a democratic republic?
Right now, we are ruled by a king (albeit an elected one, though elections of course are won by the best-funded) who we have to beg to take input from the people. There is no democracy in there at all.
When will we learn to open source [metagovernment.org] all forms of governance, and let everyone have a real say in the things that deeply affect their own lives?
A fancy form of direct democracy might not be perfect, but could it be any worse than this sort of plutocratic authoritarianism we live under now?
Re: (Score:2)
Sadly, nothing is going to change ... we're too far down the path of central control to escape without external intervention already. So our best bet is probably for the chinese army to liberate us.
Re: (Score:2)
The trunk has powers of taxation, and can do plenty to stop it, like jailing the people involved.
Re: (Score:3, Insightful)
A fancy form of direct democracy might not be perfect, but could it be any worse than this sort of plutocratic authoritarianism we live under now?
As soon as you figure out a way to keep the nearby city with a population of 1,000,000+ deciding that my area with a population of 2,000 isn't going to be their new landfill site, I'll be right there with you.
Executive Agreement vs Treaty (Score:3, Informative)
I think I've been paying too much attention in my graduate International Institutions class.
Re: (Score:2)
"international obligations" didnt stop the last guy ripping up various arms control treaties and pushing ahead with missile defense (even though the Russians objected)
Re: (Score:2)
"international obligations" didnt stop the last guy ripping up various arms control treaties and pushing ahead with missile defense (even though the Russians objected)
And look what that (among other things) did for our reputation internationally.
Re: (Score:2)
Re: (Score:3, Informative)
What are you implying? That nullification, a perfect constitutional tool, should be avoid because of International pressure?
Not at all. As a technologically aware political scientist, this Agreement scares the crap out of me. I don't want this Agreement. I am simply saying that the literature on the subject argues against a treaty such as this being nullified easily, due to both domestic and international forces. This is what I'm afraid of: that should this treaty be ratified, it won't be going away any time soon. Perhaps I should worded my original post better.
Re: (Score:2)
And any attempt to impose this by fiat as an Executive Order (which does have standing) will quickly be shot down.
Re: (Score:2)
Re: (Score:2)
If your reply was to my comment that it would be shot down. I guarantee that any executive order imposing ACTA would be quickly challenged and declared unconstitutional, as it would be attempting to impose a treaty whi
Copyright Law (Score:2, Insightful)
I wouldn't put much hope in the senate. Copyright is a subject on which democrats and republicans are equally assholes.
Wait for the Supreme Court Case (Score:5, Insightful)
Unless the Republicans take control of the Senate in a few days, the Senate is unlikely to question the President's authority. He can call it an Executive Agreement, or whatever he wants; a Senate controlled by his political party will most likely let him do what he likes. Then these law professors and whoever can file a law suit of some sort, it can wend its way through the court system for several years until the current players are out of office, and eventually 5-10 years (or more) from now the Supreme Court can decide if ACTA is really a Treaty that requires Senate approval or not.
We are not a nation of laws, but a nation of political parties. Whichever party is in charge will pass whatever laws they want regardless of Constitutionality.
Cynical? Just a bit.
- Jasen.
Re: (Score:2)
I would rather say you are optimistic, because this is positively rosy compared to how the future is going to wind up.
Re: (Score:2)
I agree 100%, and thank you for giving me a great way to explain it.
Re:Wait for the Supreme Court Case (Score:5, Insightful)
Even if Republicans take control of the Senate, it won't matter for ACTA. Intellectual property policy is one of the few truly bipartisan issues in Washington. ACTA is just not that big of a political issue for Republicans to want to halt for the purpose of obstructing Obama, and Republicans would have their own reasons for supporting it. There are only a couple of people who have been critical of ACTA in the Senate... Bernie Sanders, Sherrod Brown. Aside from that, not many other people are paying attention to it.
Another indication it's bipartisan - remember, ACTA talks were started under the Bush administration. Then they continued, pretty much without a hitch, under the new Obama administration. Honestly that's pretty impressive, there aren't too many issues where you get that kind of continuity with a party change.
Re: (Score:2)
a Senate controlled by his political party will most likely let him do what he likes.
I admire your cynicism, but you need to apply a double layer of it here. The Democrats in the Senate have a miserable track record on doing what the President wants. They encompass a massive ideological range from Bernie Sanders (an independent who left the Democrats because they were too conservative) to Joe Lieberman (who left because they were too liberal).
The President had a very hard time getting them all to agree, and legislation he proposed was heavily compromised by the time it was done. If the D
Re: (Score:2)
The democrats will pass it, and so will republicans. They are in pretty universal agreement on strict copyright law, and it would likely pass with 95+ votes.
Re: (Score:2)
Re: (Score:2)
Now that's not denying the fact that many republicans may support it, but with the current Tea Party movement kicking out many incumbents, that becomes less likely.
And we have a Supreme Court that could even then nullify it on constitutional grounds. We have many problems and
Re:Wait for the Supreme Court Case (Score:5, Insightful)
Well, you're missing the cases in which both parties get together to screw the little people over, such as the USA Patriot Act (the major reason I seriously hope Russ Feingold keeps his seat).
Re: (Score:2)
The Republican Party isn't exactly known for favoring either limits on draconian measures to support copyright holders exclusive rights or limits on executive authority in international affairs, so, unless you are just hoping that they'll decide that this particular issue is something to hold up on the basis of "Obama wants it so we must oppose it", I wouldn't put much hope in Republ
Of Course (Score:2)
Of course this is a treaty and of course it needs Senate approval, which it is highly unlikely to get.The attempt to do an end-run around this obligation is, frankly, sleazy and sufficient reason to oppose ACTA all by itself, even if all it did was support Mother's Day.
Re: (Score:2)
Unlikely to get? If ACTA goes to the Senate it will pass with 95+ votes. Everyone in both parties supports strict copyright enforcement.
Re: (Score:2)
Everybody supports all sorts of things in principle, but, in the country I live in, Republicans in practice rarely support Democratic initiatives, which this now is.
And, it needs a 2/3 vote, so it wouldn't take much opposition to stop it.
Re: (Score:2)
They don't support it on principle, they support it on financing, and since this was started under GWB, I'm sure they can find a way to explain voting for it.
Comment removed (Score:4, Insightful)
I Bet the Senate Gets THAT Done (Score:2)
Ratified Treaties vs. Executive Agreements (Score:2)
Nowadays, Executive Agreements are the norm in foreign policy and not Treaties.
A treaty that is ratified by 2/3rds of the Senate gains constitutional authority. Among other things it allows the federal government to legislate in areas which would otherwise fall within the exclusive authority of the states.
My interest in this subject stems from being a democracy activist. Most U.S. states have effectively outlawed private member based citizen parties.
SEE Quote from 1927
"Her
Re: (Score:2)
Which is pretty much irrelevant in the case of ACTA, since Copyrights are an enumerated federal power, so federal authority to legislate to protect copyrights is already established and the Treaty Power isn't needed to overcome exclusive authority of the states in this area.
Brazilian Position (Score:3, Informative)
The Brazilian government has released a statement about the ACTA giving four reasons of concern to the country.
Source: Brazilian intervention at TRIPS Council: ACTA [keionline.org]
Wise men say it needs Senate disapproval (Score:2, Interesting)
"Scholars Say ACTA Needs Senate Approval" : Wise men say it needs Senate disapproval.
It's a sign! (Score:2)
The problem is power enforcement. (Score:4, Informative)
Re: (Score:2)
I think it comes down to far can an executive order be enforced. What legal power does it have were a case to be brought up in court. I cannot imagine it would stand up very well. If that is the case, does it really matter whether Obama signs it or not?
Re:Bad move (Score:4, Insightful)
Re: (Score:2)
This court is most definitely NOT in his pocket. He's been able to nominate two justices, but the replaced justices were leaned heavily to the left (even if one of the two was appointed by a republican president) and their selection did nothing to change the balance which is currently 5-4 in favor of a more conservative viewpoint. Thus the Heller and McDonald decisions affirming the right of the individual to keep and bear arms. A court in Obama's pockets would most certainly not have ruled that way.
Or, for that matter, Citizen's United. Sure, Obama may not have entirely objected to a "documentary" which openly mocked and derided Hilary Clinton, but he certainly wouldn't have approved of a ruling that says large corporations--which heavily favor Republicans--can spend freely and anonymously on electioneering.
Re:Bad move (Score:5, Informative)
Treaties do NOT supersede the Constitution.
"This [Supreme] Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty." - Reid v. Covert, October 1956, 354 U.S. 1, at pg 17
Re: (Score:2)
Treaties do NOT supersede the Constitution.
"This [Supreme] Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty." - Reid v. Covert, October 1956, 354 U.S. 1, at pg 17
Mod parent up, GP down, case closed.
Re:Bad move (Score:5, Informative)
This has become a popular meme in politics, but it simply isn't true. Re: Reid v. Covert, October 1956
More info here [tenthamendmentcenter.com], here [asil.org], & here [semitagui.gov.co].
Treaties are not above to the US constitution BUT (Score:4, Informative)
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Article VI section 1 clause 2
Is that clear enough???
Ratified Treaties are superior to any state laws. The only exception to a treaty being imposed on states would be something that would invoke a 10th amendment issue which is provided for in the supremacy clause anyway.
Re: (Score:2, Insightful)
If you don't like the current arrangement of power between the federal and state governments, I happen to be a recruiter for the Army of the Confederate States of America. Just sign your name on the line, and you too can join the proud ranks of men who have a 6th grade social studies comprehension of what the Constitution means and want to fight a war that ended 135 years ago! You will receive a minimum of two copies of the Confederate flag (please display them prominently and publicly) and one hat, embla