Harvard Law School professors Jack Goldsmith and Lawrence Lessig published an opinion piece today in the Washington Post, in which they lay out the serious constitutional concerns surrounding the Obama administration's plan to adopt ACTA as a "sole executive agreement" that requires only the president's approval. It's well worth a read.
Goldsmith and Lessig point out that, while the limits of the sole executive agreement power has never been clarified by the Supreme Court, "[h]istorical practice and constitutional structure suggest that they must be based on one of the president's express constitutional powers (such as the power to recognize foreign governments) or at least have a long historical pedigree (such as the president's claims settlement power, which dates back over a century)." And, of course, the president lacks independent constitutional authority over intellectual property and communications policy, these being matters the Constitution gives primary authority over to Congress.
Goldsmith and Lessig also do an excellent job dismantling the argument, advanced by the USTR and the administration, that ACTA would not change U.S. domestic law, noting how executive agreement provisions can preempt inconsistent state and possibly federal law, at least under certain circumstances, and that a canon of statutory interpretation requires courts "to interpret ambiguous federal laws to avoid violations of international obligations."
They conclude by calling on Congress to take back its constitutional prerogatives, much as it did in 2002, when the Bush administration suggested it might pursue a nuclear arms reduction deal with Russia by sole executive agreement.
As Mike Masnick at Techdirt points out, Goldsmith and Lessig are elaborating and sharpening some of the arguments raised by our very own Andrew Moshirnia back in February. We're very happy to see them intervene in this critically important debate.