Fifty leading U.S. legal scholars cast fresh doubt on the constitutionality of the Anti-Counterfeiting Trade Agreement in an open letter to the Senate Finance Committee today. (Press Release). At issue is whether the Office of the United States Trade Representative (USTR) had authority to enter into the controversial IP enforcement agreement on behalf of the United States when the Deputy U.S. Trade Ambassador signed ACTA in October 2011. The law professors say no, and call on the Senators to “exercise your constitutional responsibility to ensure that the Anti-Counterfeiting Trade Agreement (ACTA) is submitted to the Senate for approval as an Article II treaty, or to the Congress as an ex-post Congressional-Executive Agreement.”  

We, too, have wondered about the USTR’s authority to enter into this agreement. That’s why we made a request under the U.S. Freedom of Information Act to the State Department in February for key documents that set out the State Department’s analysis of the constitutional basis for ACTA – the “Circular 175” memorandum, and the accompanying Memorandum of Law.

As the State Department’s website states, the Circular 175 procedure is the way that the State Department “seeks to confirm that the making of treaties and other international agreements by the United States is carried out within constitutional and other legal limitations, with due consideration of the agreement's foreign policy implications, and with appropriate involvement by the State Department.”  Circular 175 memoranda must be accompanied by a Memorandum of Law prepared by the Office of the Legal Advisor in the State Department, which generally includes a discussion of the appropriate legal analysis underlying implementation of the treaty at issue.

The State Department is required to prepare these documents for all treaties and other international instruments that bind the United States as a matter of international law under 22 CFR Part 181.  No agencies can conclude an international agreement in the name of the United States without first consulting with the State Department, and the determination of whether an agreement is an international agreement for this purpose must be made by the Office of the Legal Advisor to the State Department.

We have now received the State Department’s response. It’s short:  the State Department has not created a Circular 175 memorandum and accompanying Memorandum of Law for ACTA:

“Based on the subject matter of your request, we consulted with subject matter experts in the Office of the Legal Advisor. These officials advised us that no Circular 175 Memorandum or Memorandum of Law were ever issued for the Anti-Counterfeiting Trade Agreement. The officials also told us that USTR has lead within the U.S. Government for this issue.”

This suggests that ACTA was not submitted to the normal State Department review process to determine its constitutionality before it was signed by the Deputy Trade Ambassador.

Since the State Department’s Legal Office must decide whether a proposed instrument is an “international agreement” for this process, it’s possible that the State Department was consulted but decided that ACTA was not an “international agreement”.  If so, where is the Memorandum explaining why ACTA should not be considered an “international agreement” despite all appearances to the contrary?

Given that, the FOIA response appears to confirm what we’ve long suspected – that USTR was acting on a folly when it negotiated and signed ACTA, in the absence of Trade Promotion Authority which had expired on July 1, 2007, and without consulting the US government agency that is entrusted with ensuring that international agreements abide by appropriate constitutional process.

It is important to understand that the way that ACTA was negotiated and subsequently signed by the USTR raises fundamental questions about the separation of powers set out in the U.S. Constitution. ACTA deals with powers over subject matter – intellectual property and foreign trade –that the Constitution’s Article I gives exclusively to Congress. Specifically, there are three ways that the U.S. can bind itself to international agreements dealing with Article 1 subject matter. First, an agreement can be ratified under the Treaty Clause, which requires a vote by two-thirds of the Senate. Second, Congress can pass a law that authorizes the negotiation of an international agreement (ex ante authorization). Third, Congress can approve an agreement that has been negotiated by the Executive Branch after the fact, or “ex post”, by passing the agreement, subject to amendment, through both houses of Congress and having the President sign it into law. These agreements are known as ex-post Congressional-Executive Agreements.

As we’ve reported before, during the ACTA negotiations, the USTR consistently maintained that it was a Sole Executive Agreement dealing with matters delegated to the President and, on that basis, did not need Congressional review and approval. Then, in a surprising about-face, the Executive changed its explanation of the constitutional basis for ACTA in March 2012. In a letter responding to a request from the Chair of the Senate Finance Committee's Trade Subcommittee, Senator Wyden, on March 6, the Legal Advisor to the State Department, Howard Koh, implied that Congress had authorized the Executive to negotiate ACTA in response to the 2008 Prioritizing Resources and Organization for Intellectual Property Act (PRO-IP Act).  On March 7, the U.S. Trade Ambassador followed that line, and testified in a Senate hearing that ACTA was negotiated with the authorization of Congress, quoting directly from Koh’s letter.

As we noted at the time, it seemed implausible that Congressional authorization was granted in legislation that was enacted the year after ACTA negotiations were announced, on October 23, 2007. In addition, as the legal scholars’ letter notes, the provision cited in the State Department Legal Advisor’s letter – section 8113(a)(6) of the PRO-IP Act  – does not actually direct the USTR to negotiate an international agreement, let alone one with ACTA’s far-reaching characteristics. ACTA requires creation of an unelected ACTA Committee that has the final say on ACTA implementation in U.S. law, ousting any role for Congress. If Congress had intended to grant ex ante authorization to the USTR to negotiate an international agreement that would limit Congress’ role and impede its ability to legislate, it seems more likely that it would have chosen to do so expressly.

The legal scholars conclude that:

“..the Administration currently lacks a means to constitutionally enter ACTA without ex post Congressional approval. The present issue reaches far beyond the topical matters covered by ACTA, into the fundamental Constitutional issue of separation of powers. If Congress allows the executive to claim that ACTA was authorized by language that clearly does not authorize the agreement, it will be ceding unprecedented power to the executive."

We agree.

The legal scholars also call on the members of the Senate Finance Committee to act, noting that:

“Remedying this state of affairs is uniquely within Congress’s province. Congress, and specifically the Senate as the Constitutionally recognized chamber with responsibilities for the approval of treaties, should secure from the administration a public pledge to send ACTA to the Senate as a treaty, or to the Congress as an ex-post Congressional-executive Agreement. Absent a pledge to this effect, we encourage the Committee to hold hearings and to pass legislation that would prevent the United States from binding itself to ACTA without express Congressional consent.”

Now it’s up to the members of the Senate Finance Committee to rectify this unconstitutional power grab by an unaccountable Executive Branch agency, and protect the fundamental separation of powers embodied in the U.S. Constitution.

Meanwhile, the process of ratifying ACTA has noticeably slowed down in the rest of the world.  As Sean Flynn from American University’s Program on Information Justice and the Public Interest notes, the fresh doubt about ACTA’s constitutionality under U.S. law is “one component of the larger context casting increasing doubt that ACTA can ever go into force.” In recent months we’ve witnessed growing concerns about ACTA’s impact that have led to delays in the signing and ratification of ACTA in the EU, Switzerland, Mexico, Australia, and New Zealand. Let's hope that the members of the Senate Finance Committee heed the law professors' call to action and ensure that the U.S. undertakes the same rigorous public process that is underway in other countries.


For more about the broader implications of the constitutional problems with ACTA, check out this insightful op-ed from Margot Kaminski, Executive Director of the Information Society Project at Yale Law School.