By Tamlin H. Bason
An amendment to the Jumpstart Our Business Startups Act, H.R. 3606, submitted by Sen. Ronald L. Wyden (D-Ore.) March 19 was aimed at preventing the Anti-Counterfeiting Trade Agreement from going into force in the United States without first getting formal approval from Congress.
Another amendment would require the Office of the U.S. Trade Representative to disclose its position regarding to the ongoing Trans-Pacific Partnership Agreement negotiations.
The amendments were introduced a day before the Senate was scheduled to take a procedural vote on whether it would consider the House's controversial JOBS bill.
The United States, along with seven other countries, signed ACTA in Japan Oct. 1 in an effort that was hailed as a hallmark achievement in the global campaign against counterfeiting.
However, critics have consistently claimed that the U.S. accession to the treaty would be unconstitutional because the negotiations took place without congressional consent. The administration asserted that ACTA does not require congressional approval or consent because it is a “sole executive agreement,” meaning that the president may act on it unilaterally. The administration also claimed that ACTA is entirely consistent with existing U.S. intellectual property laws and therefore will not require any implementing legislation.
But even if ACTA were a sole executive agreement, critics countered, congressional approval would still be necessary because the agreement concerns intellectual property and foreign commerce, two subjects that are under the purview of Congress's powers under Article I of the Constitution.
Wyden took up that argument in a October letter he sent to President Obama. Wyden said, “[R]egardless of whether the agreement requires changes in U.S. law, a point that is contested in respect to ACTA, the executive branch lacks constitutional authority to enter a binding international agreement covering issues delegated by the Constitution to Congress' authority, absent congressional approval.”
As a condition to the United States putting forward any official instrument that accepts ACTA, Wyden asked in his earlier letter that Obama “formally declare that ACTA does not create any international obligations for the U.S.—that ACTA is not binding.” If Obama declined to make such a statement, then Wyden requested a “legal rationale for why ACTA should not be considered by Congress.”
In response, U.S. Trade Representative Ron Kirk said in a Dec. 7 letter that ACTA does not alter U.S. law, and thus, “Congress will not need to enact legislation in order for the United States to implement the Agreement.”
Wyden was not satisfied with this response, and therefore he sent another letter Jan. 7 to the U.S. Department of State asking for further clarification on a number of points. In that letter, which was directed to Harold Koh, the legal advisor of the State Department, Wyden said that a number of constitutional issues remain regarding the administration's handling of the treaty.
By passing the Prioritizing Resources and Organization for Intellectual Property Act, Pub. L. No. 110-403, Congress “passed legislation explicitly calling for the Executive Branch to work with other countries to enhance enforcement of intellectual property rights,” Koh said in a March 6 letter to Wyden.
The PRO IP Act, which was signed into law in October 2008 by then President George W. Bush, established an IP enforcement coordinator who reports directly to the president. The law tasks the IP czar with “eliminating domestic and international counterfeiting and infringement networks,” and “[w]orking with other countries to establish international standards and policies for the effective protection and enforcement of intellectual property rights.”
“The ACTA helps to answer this legislative call,” Koh said.
However, Wyden's first March 19 amendment JOBS Act amendment, S.A. 1868, would prevent the president from accepting, and the United States from entering into, any “legally binding trade agreement that imposes obligations on the United States … including the Anti-Counterfeiting Trade Agreement, without the formal and express approval of Congress.”
The TPP is an Asia-Pacific regional trade agreement currently being negotiated among the United States and Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore, and Vietnam.
The countries met in Melbourne March 1-9. Critics of the process have claimed that the entire negotiations have been shrouded in secrecy, and have insisted on seeing at the very least the proposed texts.
Wyden's second JOBS Act amendment, S.A. 1869, would in fact require the USTR to disclose “each document … that was shared with the other parties negotiating for a Trans-Pacific Partnership Agreement.” The amendment also calls for ongoing disclosures by requiring the USTR to disclose within 24 hours any additional documents it shares with fellow TPP parties.
Full text of Koh's letter to Wyden at http://pub.bna.com/ptcj/kohwyden.pdf