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Scholars Say ACTA Needs Senate Approval

Soulskill posted more than 3 years ago | from the setting-us-up-for-disappointment-when-they-ratify-it dept.

Government 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."

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We need scholars to tell us that? (2, Interesting)

bonkeydcow (1186443) | more than 3 years ago | (#34061646)

Doesn't anyone read the constitution anymore? Animal Farm here we come.

Re:We need scholars to tell us that? (4, Informative)

dkleinsc (563838) | more than 3 years ago | (#34061658)

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? (5, Informative)

Conspiracy_Of_Doves (236787) | more than 3 years ago | (#34061700)

Yes, but Obama is trying to pass this off as being something other than a treaty.

Re:We need scholars to tell us that? (5, Funny)

Shakrai (717556) | more than 3 years ago | (#34061746)

That can't be, he ran on a platform of openness and transparency.

Re:We need scholars to tell us that? (3, Insightful)

OeLeWaPpErKe (412765) | more than 3 years ago | (#34061896)

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, with much accomplishes from those countries, simply to amass more power into a centralized point. This is simply what governments do.

And don't worry : "It's for your own good" (says the "ex-"communist "ex-"maoist Barosso, owner of more than ten times more luxury cars than I have pairs of footwear). I'm sure Obama (insert whatever reason you don't like him) will behave a *lot* better, right ?

Re:We need scholars to tell us that? (2)

icebraining (1313345) | more than 3 years ago | (#34062104)

*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.

...and continued (0)

Anonymous Coward | more than 3 years ago | (#34062932)

...messing things up as an EC President. No, I don't like him either. To me, he's the archetype of the borderline-criminal politican, streamlined, in the pockets of Big Corp.

Re:We need scholars to tell us that? (1)

GNious (953874) | more than 3 years ago | (#34062772)

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.

Seriously? Not saying you are wrong, or anything, but I'd like some kind of proof.

Re:We need scholars to tell us that? (3, Informative)

VolciMaster (821873) | more than 3 years ago | (#34062372)

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? (1)

SirGarlon (845873) | more than 3 years ago | (#34062482)

I guess whether being "open" and "transparent" is a good thing or not depends on whether you're also "honest" and "courageous".

Re:We need scholars to tell us that? (1)

future assassin (639396) | more than 3 years ago | (#34062802)

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? (3, Interesting)

mcvos (645701) | more than 3 years ago | (#34061764)

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? (4, Informative)

Compaqt (1758360) | more than 3 years ago | (#34061780)

Reason: GOP gets Chamber of Commerce support, Dems get Hollywood support.

Re:We need scholars to tell us that? (1)

sjs132 (631745) | more than 3 years ago | (#34061932)

No, the real reason is they are all on the same team, they just switch shirts occasionally to confuse us. In reality, what one starts, the other will finish because it is still a power for the puppet masters that are really in charge. WAKE UP SHEEPEOPLE! I wish it was as easy as putting on a pair of cool sunglasses, but you have to PAY ATTENTION!

Re:We need scholars to tell us that? (1)

JWW (79176) | more than 3 years ago | (#34062204)

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:We need scholars to tell us that? (1)

Surt (22457) | more than 3 years ago | (#34062616)

The reality is: enough of us are awake, but the elections are rigged, so it doesn't matter.

Re:We need scholars to tell us that? (1)

mcvos (645701) | more than 3 years ago | (#34062692)

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? (0)

Anonymous Coward | more than 3 years ago | (#34061922)

Right; apparently the claim is that he can sign "trade agreements" and they are passing this off as being a trade agreement.

Re:We need scholars to tell us that? (3, Informative)

Sonny Yatsen (603655) | more than 3 years ago | (#34061734)

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:We need scholars to tell us that? (2)

mcvos (645701) | more than 3 years ago | (#34061790)

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:We need scholars to tell us that? (2, Informative)

BZ (40346) | more than 3 years ago | (#34061926)

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 law.

Re:We need scholars to tell us that? (1)

mcvos (645701) | more than 3 years ago | (#34062338)

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:We need scholars to tell us that? (1)

gtall (79522) | more than 3 years ago | (#34062452)

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:We need scholars to tell us that? (1)

general_re (8883) | more than 3 years ago | (#34062602)

There's not very much in the way of precedent covering Executive agreements - much less than what addresses the constitutionality of treaties, for example. However, Lawrence Lessig co-wrote an op-ed piece not too long ago addressing ACTA and Executive Agreements:

http://www.washingtonpost.com/wp-dyn/content/article/2010/03/25/AR2010032502403.html [washingtonpost.com]

His take, in short: not bloody likely.

Re:We need scholars to tell us that? (2, Insightful)

pavon (30274) | more than 3 years ago | (#34062964)

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 that differ from our current laws and thus new legislation needs to be passed to uphold the treaty.

Personally, I think the idea of executive agreements are still a bad idea, as it is much harder to change the law after it has been enshrined in a treaty (by any name), so congress should have some say in whether the existing law is cemented like that.

Re:We need scholars to tell us that? (1)

IndustrialComplex (975015) | more than 3 years ago | (#34062694)

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 was to do LXYZ, then it would be a treaty, and require the approval of the senate because it would be exercising power not granted to the executive in the form of L.

Re:We need scholars to tell us that? (2, Interesting)

Sonny Yatsen (603655) | more than 3 years ago | (#34062732)

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 Treaty, because a Treaty is considered higher in supremacy to a Federal statute, but lower than the Constitution. (And federal rules and regulations fall below that of all Federal statutes, treaties, Constitution, etc.)

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.

Re:We need scholars to tell us that? (3, Insightful)

mcvos (645701) | more than 3 years ago | (#34062860)

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:We need scholars to tell us that? (1)

CyprusBlue113 (1294000) | more than 3 years ago | (#34061920)

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? (5, Insightful)

SirGarlon (845873) | more than 3 years ago | (#34062408)

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:We need scholars to tell us that? (1)

CyprusBlue113 (1294000) | more than 3 years ago | (#34062974)

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 to call it oppression as compared to just overreaching by police entities, I am however very disapointed in the judicial branches (all of them, not just top federal) for upholding those policies as valid.

Re:We need scholars to tell us that? (2, Funny)

Shakrai (717556) | more than 3 years ago | (#34063016)

"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:We need scholars to tell us that? (1)

Scrameustache (459504) | more than 3 years ago | (#34061934)

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:We need scholars to tell us that? (1)

Eivind Eklund (5161) | more than 3 years ago | (#34062902)

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? (4, Interesting)

VGPowerlord (621254) | more than 3 years ago | (#34062024)

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.

er... yeah:

The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

-- US Constitution [archives.gov] , Article I Section 8.

That would prevent an executive order from changing Copyright or Patent laws.

Re:We need scholars to tell us that? (0)

Anonymous Coward | more than 3 years ago | (#34062396)

But there is no basis in the Constitution for any so called Executive agreement. So let him agree all he wants, it has zero power of law unless it is a proper treaty affirmed by the 2/3 majority of the Senate.

Re:We need scholars to tell us that? (1)

Sonny Yatsen (603655) | more than 3 years ago | (#34062788)

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:We need scholars to tell us that? (0)

Anonymous Coward | more than 3 years ago | (#34061824)

Treaties of the United States have to be ratified by the Senate. This is hardly news.

Not just that, but it also has to actually be implemented in legislation.

Treaty->Bill->Law

Why is everyone mystified by this process?
We went through the same thing with DMCA (only with less secrecy on WIPO).

It doesn't mean anything until congress passes it and the prez signs it into law (just like every other federal law out there).

Re:We need scholars to tell us that? (1)

VolciMaster (821873) | more than 3 years ago | (#34062354)

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:We need scholars to tell us that? (4, Funny)

Compaqt (1758360) | more than 3 years ago | (#34061806)

I tell you, Bush Jr. is trampling all over the Constitution. I can't wait for the day he's replaced. ...

Oops.

What are you going to do about it? (0)

Anonymous Coward | more than 3 years ago | (#34061846)

What are you going to do about it? Sit back and watch totalitarianism steamroll over you? Or do the one and only thing that you personally can do right now to free us from the impending destruction of the last scraps of democracy: build software that replaces politicians without their help, cooperation, or permission. See http://www.metagovernment.org/ [metagovernment.org]

Scholars, you say? (4, Insightful)

betterunixthanunix (980855) | more than 3 years ago | (#34061652)

When was the last time the president -- any president in recent memory -- ever listened to what scholars had to say, except when what they say supports his policy?

Re:Scholars, you say? (1)

idiotnot (302133) | more than 3 years ago | (#34061838)

Pretty much all of them, when consulting about what materials are covered by Executive Privilege. :-)

Re:Scholars, you say? (1)

SuricouRaven (1897204) | more than 3 years ago | (#34062226)

All presidents listen to schoolers. They are just very selective in which schoolers they decide to listen to.

Re:Scholars, you say? (-1, Troll)

Anonymous Coward | more than 3 years ago | (#34062424)

Isn't that exactly what the OP said, you dipshit? Except OP could spell "scholar" correctly.

Anyone actually find the list of law profs? (1)

Orga (1720130) | more than 3 years ago | (#34061654)

I keep seeing prominent law professors mentioned but I have been unable to find the actual list through multiple links to the article.

Yeah right... (0, Troll)

Kelbin (1787356) | more than 3 years ago | (#34061656)

Um, yeah right like our unholy overlord is actually going to do the "right" thing.

Can we think rationally here? (4, Informative)

Anonymous Coward | more than 3 years ago | (#34061670)

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:Can we think rationally here? (1)

Surt (22457) | more than 3 years ago | (#34062658)

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:Can we think rationally here? (0)

Anonymous Coward | more than 3 years ago | (#34062884)

Look at the Metagovernment site. It is external intervention.

Think in terms of open source projects. It is a branch off the trunk of current government. If enough people like the branch more than the trunk, the trunk withers and dies and the branch becomes the new core.

There is no need for the trunk's participation in this process, nor can it do anything to stop it, if the branch is good enough.

Re:Can we think rationally here? (2, Insightful)

IndustrialComplex (975015) | more than 3 years ago | (#34062762)

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.

Why wouldn't they? (0)

Anonymous Coward | more than 3 years ago | (#34061776)

Why wouldn't they open it to public review? That's ridiculous.

Not authorized.. like so often.. (1)

xnpu (963139) | more than 3 years ago | (#34061788)

Good to see someone stand up.. but really? now? So many laws in US are unconstitutional. Not surprising, considering the supreme court is a federal one and the states have turned in to cute little kittens too afraid to use their powers to correct the feds.

Recommended reading: nullification by thomas e. woods. (Please read it before saying it sucks.)

Re:Not authorized.. like so often.. (2, Insightful)

Anonymous Coward | more than 3 years ago | (#34062074)

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, emblazoned with the same flag (wear at all times). Please note that joining our ranks will require that you hate minorities, anybody who lives north of the Mason-Dixon line, and change.

Recommended reading: The original Articles of Confederation, which failed primarily due to the lack of a strong national government, and any Con Law textbook, which will give an actual nuanced view of the 10th Amendment (and, of course, all of the rest of the Constitution), instead of "grr, federal government baaaad".

(And yes, before anybody starts up, the Civil War was about friggin' slavery. The fact that the Southern economy was based on slavery means it was STILL ABOUT SLAVERY. When 4 out of the 11 states specifically reference slavery in their declarations of independence, and the CSA VP calls slavery a "cornerstone" of the new government, it's about slavery. It wasn't the only reason, but it was the primary one. ...god, I want to move North.)

Bad move (0)

pla (258480) | more than 3 years ago | (#34061798)

Although the idea of "public comment" may sounds appealing, we DO NOT want this to go into effect as a treaty, for one simple reason...

Treaties supersede the US constitution.

If the Senate ratifies this as a treaty, goodbye (at least) 1st and 5th amendments when it comes to anything to do with copyrights. If, however, Obama tries to push it through by signing without senate approval, it may have the force of an executive order, but our constitutional rights would still apply.

Re:Bad move (1, Informative)

Anonymous Coward | more than 3 years ago | (#34061830)

Ack, 4th and 5th, sorry.

Re:Bad move (0)

Anonymous Coward | more than 3 years ago | (#34061852)

Treaties supersede the US constitution.

Source, please?

Re:Bad move (1)

xnpu (963139) | more than 3 years ago | (#34061918)

Indeed. Source please. It makes no sense at all. Anything not in the constitutions can be nullified by any state who wishes to do so. The only way treaties can be superior is if it says so in the constitution, which it doesn't.

Re:Bad move (1, Informative)

Anonymous Coward | more than 3 years ago | (#34062032)

Actually, treaties are superior to state constitutions, but not to the national constitution. If they were, there'd be no reason to bother with amendments, just get a friendly country to sign a treaty with the changes you want and get it approved by the Senate and President.

Treaties are not above to the US constitution BUT (3, Informative)

voss (52565) | more than 3 years ago | (#34062152)

"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:Bad move (0)

Anonymous Coward | more than 3 years ago | (#34062142)

http://www.newswithviews.com/Becraft/larry1.htm [newswithviews.com]

Whether technically accurate or merely de facto, the US continues to prosecute people for "crimes" over which the federal government US has no jurisdiction outside treaty.

So while the naysayers may well have the letter of the law on their side, the FUDsters in this case have reality on theirs.

Re:Bad move (1)

gtall (79522) | more than 3 years ago | (#34061886)

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 (0)

xnpu (963139) | more than 3 years ago | (#34061970)

It does, because the supreme court is in Obama's pocket and the states have lost the balls to nullify.

Re:Bad move (3, Insightful)

dwillden (521345) | more than 3 years ago | (#34062150)

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.

Re:Bad move (5, Informative)

alSeen (41006) | more than 3 years ago | (#34061982)

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:Bad move (1)

Colonel Korn (1258968) | more than 3 years ago | (#34062132)

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 (5, Informative)

Jaysyn (203771) | more than 3 years ago | (#34062178)

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] .

Re:Bad move (1, Insightful)

Anonymous Coward | more than 3 years ago | (#34062308)

And here [bit.ly]

Re:Bad move (0)

Anonymous Coward | more than 3 years ago | (#34062506)

Warning: the above is probably a Goatse link.

Re:Bad move (1)

DeadDecoy (877617) | more than 3 years ago | (#34062924)

Confirmed. It's pumpkin/jackolantern goatse, but goatse nonetheless.

Executive Agreement vs Treaty (2, Informative)

Nidi62 (1525137) | more than 3 years ago | (#34061810)

I cannot help but wonder if it is actually better if ACTA is treated as an executive agreement rather than a treaty. If it is treated as a treat and goes to Congress, it could pass. Especially considering how much clout this particular lobby has with Congress. And if it does get ratified, it will be very hard to nullify, not only because of the required domestic support, but also because of the negative consequences internationally of backing out of international agreements. It can affect a state's credibility in the short term, making other agreements more difficult, even in other areas such as defense or the environment. I also have not read the text of the agreement, so I am not sure what provisions-if any- exist within the agreement for nullification or renegotiation. Without provisions such as these, changes to the agreement are very unlikely. Contrast this with an executive agreement, which expires after the president that makes the agreement is no longer in office unless the new president extends it.

I think I've been paying too much attention in my graduate International Institutions class.

Re:Executive Agreement vs Treaty (0, Troll)

xnpu (963139) | more than 3 years ago | (#34061964)

What are you implying? That nullification, a perfect constitutional tool, should be avoid because of International pressure?

Besides, China is not included, I don't see them suffer from it any time soon.

Re:Executive Agreement vs Treaty (2, Informative)

Nidi62 (1525137) | more than 3 years ago | (#34062018)

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:Executive Agreement vs Treaty (1)

dwillden (521345) | more than 3 years ago | (#34062258)

But an "Executive Agreement" what ever that is has no force of law. At most it's equal to a congressional resolution.

And any attempt to impose this by fiat as an Executive Order (which does have standing) will quickly be shot down.

Re:Executive Agreement vs Treaty (1)

Nidi62 (1525137) | more than 3 years ago | (#34062390)

Not true. An executive order is treated as law, but only so long as the president that issued it remains in office. It is essentially an Executive Order with a built-in sunset clause.

Re:Executive Agreement vs Treaty (1)

jonwil (467024) | more than 3 years ago | (#34062222)

"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:Executive Agreement vs Treaty (1)

Nidi62 (1525137) | more than 3 years ago | (#34062450)

"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.

Copyright Law (2, Insightful)

Anonymous Coward | more than 3 years ago | (#34061818)

I wouldn't put much hope in the senate. Copyright is a subject on which democrats and republicans are equally assholes.

Re:Copyright Law (0)

Anonymous Coward | more than 3 years ago | (#34061864)

Indeed. Especially this one [bit.ly]

Wait for the Supreme Court Case (4, Insightful)

jasenj1 (575309) | more than 3 years ago | (#34061860)

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:Wait for the Supreme Court Case (1)

shentino (1139071) | more than 3 years ago | (#34062118)

I would rather say you are optimistic, because this is positively rosy compared to how the future is going to wind up.

Re:Wait for the Supreme Court Case (1)

brainboyz (114458) | more than 3 years ago | (#34062838)

I agree 100%, and thank you for giving me a great way to explain it.

Re:Wait for the Supreme Court Case (4, Insightful)

langelgjm (860756) | more than 3 years ago | (#34062122)

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:Wait for the Supreme Court Case (1)

jfengel (409917) | more than 3 years ago | (#34062136)

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 Democrats had unified to pass one agenda they would likely be in less of a mess now. As it is, they're all running away from what accomplishments they did make because the compromised versions are less coherent and easily attacked.

I'm speaking politically here, not in terms of what would be the best legislation. Regardless, you need to be extra-cynical: the Democrats in Congress will not automatically pass it.

Besides, it takes a 2/3 vote. If 59 Democrats were for it, 41 Republicans would be automatically against it, even if it were the "Puppies Are Cute" international treaty.

Independents may think they're cynical, but nobody's got cynicism like a Democrat ;-)

Re:Wait for the Supreme Court Case (1)

SuricouRaven (1897204) | more than 3 years ago | (#34062260)

The republicans support ACTA just as much - they wouldn't want to draw attention to it by objecting. They'll just find some other policy of his to disagree with. Most likely his desire to allow homosexuals to serve openly in the military. That one has sex in it, which is sure to grab the headlines.

Re:Wait for the Supreme Court Case (1)

dwillden (521345) | more than 3 years ago | (#34062288)

But it requires a 2/3 majority vote to ratify. President Obama has a difficult time even getting the 60 votes needed to end a filibuster, let alone an additional 6 votes to reach the 2/3rds margin required under the Constitution.

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 flaws in our system of government, but unlike most the rest of the world, those problems do not include recognizing international law as superseding our Constitution.

Re:Wait for the Supreme Court Case (0)

Anonymous Coward | more than 3 years ago | (#34062834)

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.

Heh, I guess it depends on what you think the Tea Party is. If you think it's a bunch of "government has gone too far!" conservatives, then maybe. If you think it's a marketing branch of the Republican Party whicvh would have faded into invisibility if not for the support of Fox News (who would support ACTA) then it's not a question of getting 2/3 majority, because like DMCA it will pass unanimously.

Re:Wait for the Supreme Court Case (4, Insightful)

dkleinsc (563838) | more than 3 years ago | (#34062866)

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).

Doesn't need Senate consent or that of the People! (-1, Troll)

Anonymous Coward | more than 3 years ago | (#34061950)

How dare these 'scholars', how dare ANYONE question the will and intent of our savior Barack Obama! He was selected on high by the most knowledgeable people on the planet - Hollywood actors - to become the next King of the United States of America. To question Them is to question ourselves; and surely in this day on self restraint and responsibility we, the little people, are above that.

Of Course (1)

mbone (558574) | more than 3 years ago | (#34061972)

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:Of Course (0)

Anonymous Coward | more than 3 years ago | (#34062854)

Unlikely to get until just after the next election, in which case the rump will gladly endorse the cause, if for no other reason than they longer need to pretend to care.

Either that, or it'll happen during the next presidency, when everybody can just pretend they're doing the right thing, because it's different when they're the ones approving it.

"Scholars say" (3, Insightful)

MikeRT (947531) | more than 3 years ago | (#34062064)

People shouldn't trust "scholars" on this subject. Just read the Constitution, it's right there. Here's a list of some great reasons why "legal scholars" are full of shit:

1) The 2nd amendment is composed of two halves: a prepositional phrase (the part about a militia and a free state) and legal language. Scholars, for years, have argued that a damn prepositional phrase, which only served to explain some of the thought process the founding fathers had, trumps the actual command enforced against Congress (the right to keep and bear arms shall not be infringed).

2) Legal scholars incorporated the first amendment against the states through the fourteenth amendment's privileges and immunities clause claiming it was as natural as breathing. For over a century they refused to acknowledge the same with the 2nd amendment. Ironic, since the first amendment explicitly mentions Congress in who shall not do the prohibiting, while the second amendment is already worded in such a way that it fits neatly against the states as well (as it does not mention Congress, in favor of a blanket prohibition).

3) Dred Scott.

4) Kelo v. New London's giant ass-raping of the public purpose clause of the 5th amendment.

I Bet the Senate Gets THAT Done (1)

Greyfox (87712) | more than 3 years ago | (#34062190)

While the Senate has lately been a cock-blocking do-nothing institution, I have a feeling they'd put aside party differences to ratify that document. Both sides are suckling at the teats of Big Entertainment, something a quick browse through Opensecrets.org will prove conclusively. So if you're planning to look to the Senate to shut that thing down, you're in for a big disappointment.

Ratified Treaties vs. Executive Agreements (1)

I_Voter (987579) | more than 3 years ago | (#34062318)

Sonny Yatsen wrote:
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

"Here in the last generation, a development has taken place which finds an analogy nowhere else. American parties have ceased to be voluntary associations like trade unions or the good government clubs or the churches. They have lost the right freely to determine how candidates shall be nominated and platforms framed, even who shall belong to the party and who shall lead it. The state legislatures have regulated their structure and functions in great detail."

Source: American Parties and Elections,
by Edward Sait, 1927 (Page 174)
Quoted from: The tyranny of the two-party system,
by Lisa Jane Disch c2002

George H.W. Bush signed the Copenhagen Document of the Helsinki Accords that states in part: (7.6) - respect the right of individuals and groups to establish, in full freedom, their own political parties or other political organizations and provide such political parties and organizations with the necessary legal guarantees to enable them to compete with each other on a basis of equal treatment before the law and by the authorities;... However it has not been ratified by the Senate.

Ref. Treaty Clause
One of three types of international accord.
http://en.wikipedia.org/wiki/Treaty_Clause [wikipedia.org]

In Missouri v. Holland, the Supreme Court ruled that the power to make treaties under the
U.S. Constitution is a power separate from the other enumerated powers of the federal
government, and hence the federal government can use treaties to legislate in areas which
would otherwise fall within the exclusive authority of the states.

Brazilian Position (3, Informative)

ColeonyxOnline (966334) | more than 3 years ago | (#34062328)

The Brazilian government has released a statement about the ACTA giving four reasons of concern to the country.

  1. - The agreement would shift the balance between right holders and consumers.
  2. - Brazil prefer these negotiations to happen in either the WTO or WIPO. Both seem a lot more open and transparent.
  3. - The agreement proposes only one remedy to the situation, repression.
  4. - The agreement encompasses more than just an understanding between a few nations and creates a whole structure that extends to other countries.

Source: Brazilian intervention at TRIPS Council: ACTA [keionline.org]

Wise men say it needs Senate disapproval (2, Interesting)

Mathinker (909784) | more than 3 years ago | (#34062382)

"Scholars Say ACTA Needs Senate Approval" : Wise men say it needs Senate disapproval.

But public approval, not needed at all! (0)

Anonymous Coward | more than 3 years ago | (#34062624)

How about getting public approval first?

It's a sign! (1)

Wowsers (1151731) | more than 3 years ago | (#34062712)

The US President can sign ACTA if he likes, but it doesn't mean the other 200+ countries have to slit their throats and sign ACTA - just to help out the USA's sinking economy.

signing vs ratification (0)

Anonymous Coward | more than 3 years ago | (#34062888)

The president can sign whatever the hell he wants but it means squat from a legal perspective (nationally and internationally) unless actually ratified by the Senate.

What really sucks is the influence of the public will be at it's lowest ebb if this comes up just after the elections.

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