As we noted in our post about people just discovering ACTA this week, some had put together an odd White House petition, asking the White House to “end ACTA.” The oddity was over the fact that the President just signed ACTA a few months ago. What struck us as a more interesting question was the serious constitutional questions of whether or not Obama is even allowed to sign ACTA.
In case you haven’t been following this or don’t spend your life dealing in Constitutional minutiae, the debate is over the nature of the agreement. A treaty between the US and other nations requires Senate approval. However, there’s a “simpler” form of an international agreement, known as an “executive agreement,” which allows the President to sign the agreement without getting approval. In theory, this also limits the ability of the agreement to bind Congress. In practice… however, international agreements are international agreements. Some legal scholars have suggested that the only real difference between a treaty and an executive agreement is the fact that… the president calls any treaty an “executive agreement” if he’s unsure if the Senate would approve it. Another words, the difference is basically in how the President presents it.
I thought the Senate had to approve these measures. But no, the President has had the ability for over 150 years to enter into agreements with the full force of treaties but without getting approval.
These executive agreements have been used many, many times before – over 10,000. But there has never been a definitive court case defining the difference between an executive agreement and a treaty – and when the Senate really has to give approval – when it does not directly affect the President’s enumerated powers..
What Obama has done here is well within the purview of what the Imperial President has acquired. But, because it affects something that Congress is given explicit control over there is an interesting Constitutional question – can the President bind the US to international agreements dealing with things under explicit Congressional control, without having Congress give its consent?
We now have a White House petition asking Obama to submit the agreement to the Senate for approval. Sign it and see what Obama does. SInce it is a Democratic Senator raising these points, it will be interesting to watch what happens. My bet – nothing because using executive agreements allow each party to bypass a weak Congress.
Both parties are in a spiral working to enhance the powers of the President while allowing Congress to atrophy. This is just the same way the Roman Republic died. It lasted 450 years or so. We may make it to about 250 unless things change.