Prof. Ben Gershman quoted in Tech Week Europe about ACTA
02. Feb, 2012 
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Professor Ben Gershman was quoted in Tech Week Europe on the constitutionality of the recent Anti-Counterfeiting Trade Agreement (ACTA) signed by President Obama.
ACTA, a treaty negotiated by the U.S. Trade Representative and signed as an executive agreement, creates an international organization that will censor the Internet similar to proposals in the recently-shelved SOPA bill. The text of the agreement has remained private and few lawyers outside of Washington have read it. According to reports from those who have, the treaty is so vague that the powers granted to the organization are unclear.
Since the treaty has not been ratified by Congress, it is unclear if it satisfies constitutional requirements that all treaties must adhere to. In the article, Professor Ben Gershman claims that ACTA may not be legal. He says, “There’s strong agreement that executive agreements are a fraudulent means of avoiding congressional requirements.”
I guess one might summarize: “Obama perverted Constitutional law, and the left wing blinked.”
Despite the lack of constitutional authority, and not withstanding enforcement issues, international legal regimes will probably recognize ACTA as binding on the United States through the doctrine of customary international law. Moreover, some argue that customary international law is federal common law; and thus, ACTA is constitutionally enforceable under U.S. law, even though its signing is constitutionally questionable. But this argument does not make sense. The president cannot create federal common law.
I recently wrote a blog on ACTA, for the Pace International Law Review. Fee free to visit. https://pilr.blogs.law.pace.edu/2012/02/13/president-obama-signs-acta-creates-moral-hazard-for-the-u-s/