While a petition asking the White House to dump ACTA is well intentioned, as TechDirt points out, it misses the mark for a number of reasons. The real question Americans should be asking is did the President follow the Constitution when he unilaterally had his administration negotiate this international treaty and did he have the authority to do it without involving lawmakers? Since the President already signed ACTA a few months ago, it's a little too late for a petition asking him to kill it.
Under the Constitution, the president must have Senate approval for an international treaty in most circumstances. The President can argue that ACTA is an "executive agreement," which allows him to sign the agreement without getting Senate approval. But constitutional law experts have suggested that the only real difference between a treaty and an executive agreement is in name only – or how the President presents it. It's a way in which Presidents avoid getting Senate approval basically.
According to the law, executive agreements are things that involve items that are solely under the President's control. But here's where things get sticky with ACTA: Article 1, Section 8 of the Constitution, covers intellectual property as an issue under the Congress's purview, and not the President's. Since it is an issue clearly stated in the Constitution as not being under the President's control, ACTA should be submitted to the Senate for approval.
In October of last year, Senator Ron Wyden of Oregon made this exact point, asking the President why he cut the Senate out of the process. It's particularly hypocritical – as TechDirt points out – that Vice President Joe Biden (then a Senator from Delaware) complained about Former President George W. Bush's use of an "executive agreement" in a weapons treaty. Biden ultimately forced President Bush to bring the agreement before the Senate. Curiously, Biden remains silent on ACTA.
“[T]he executive branch lacks constitutional authority to enter into binding international agreements on matters under Congress’s plenary powers, including the Article I powers to regulate foreign commerce and protect intellectual property,” the letter from Wyden states. “Yet, through ACTA and without your clarification, the USTR looks to be claiming the authority to do just that.”
So what can American citizens do and what petition should they submit to the Administration? Someone has already launched a new petition asking the White House to put ACTA before the Senate for ratification. Further, this should uncover more details about this treaty. If you thought SOPA and PIPA were bad, then wait until you find out what's in ACTA.
We also urge you to point this out to your representative in the Senate.