You know it’s bad for the President when not one, but two Harvard professors take to the pages of The Washington Post to blast President Obama for failure to live up to his pledges of transparency, and for acting in an unprecedented and unconstitutional manner. And no, this time it’s not about his handling of and signature on the unconstitutional health care legislation passed this week in Congress.
This op-ed, “Anti-counterfeiting agreement raises constitutional concerns,” rather, is one of several indications that the Obama administration is determined to control and limit what you can see and do on the Internet. Of course it is all in the name of doing something wonderful for us. In this case it is “curbing global piracy” of our intellectual property.
But this has been handled with such a lack of transparency that even the European Parliament, which regulates just about everything not nailed down, and about half of the rest, passed a resolution by a vote of 663-13 calling “for the European Commission, the European Union’s regulatory arm, to release a public draft of the agreement.”
Back to the Harvard professors, Jack Goldsmith and Lawrence Lessig. They seem critical of the policy being pursued by Obama, but they reserve their harshest criticism for lack of precedent, transparency, and apparently constitutionality. They pulled few punches in their criticism of Obama and his administration and made these points:
The leaked draft of ACTA belies the U.S. trade representative’s assertions that the agreement would not alter U.S. intellectual property law.
…it raises the stakes on the constitutionally dubious method by which the administration proposes to make the agreement binding on the United States.
The leaked draft, though incomplete in many respects, makes clear that negotiators are considering ideas and principles not reflected in U.S. law.
These proposals might or might not make sense. But they ought at least be subject to public deliberation.
Normal constitutional procedures would require the administration to submit the final text of the agreement for Senate approval as a treaty or to Congress as a “congressional-executive” agreement. But the Obama administration has suggested it will adopt the pact as a “sole executive agreement” that requires only the president’s approval.
The president has no independent constitutional authority over intellectual property or communications policy, and there is no long historical practice of making sole executive agreements in this area. To the contrary, the Constitution gives primary authority over these matters to Congress, which is charged with making laws that regulate foreign commerce and intellectual property.
The administration has suggested that a sole executive agreement in this instance would not trample Congress’s prerogatives because the pact would not affect U.S. domestic law. Binding the United States to international obligations of this sort without congressional approval would raise serious constitutional questions even if domestic law were not affected.
If the president proceeds unilaterally here, ACTA will be challenged in court. But the best route to constitutional fidelity is for Congress or the Senate to protect its constitutional prerogatives.
If the president succeeds in expanding his power of sole executive agreement here, he will have established a precedent to bypass Congress on other international matters related to trade, intellectual property and communications policy.
And finally: “These mostly secret negotiations have already violated the Obama administration’s pledge for greater transparency. Embracing this deal by sole executive agreement would repudiate its pledge to moderate assertions of executive power. Congress should resist this attempt to evade the checks established by our Framers.”
It is important that we hear more from voices like Professors Goldsmith and Lessig. Emboldened after passing national health care, Obama will be looking for ways around Congress to institute some kind of Cap & Trade, to try Gitmo prisoners in the U.S., and to have the U.S. sign on to a series of United Nations treaties such as the International Criminal Court, Law of the Seas, and more than a dozen others that he has expressed a desire to sign on to.
And praise is due The Washington Post for giving them this platform.