Whither the Foreign Commerce Clause?

If you’re looking for an interesting area of the Constitution that has not been the subject of a major Supreme Court case but should be, there are options; but you could do worse than to look to the Foreign Commerce Clause.  Article I, section 8 of the Constitution grants Congress power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”  The Interstate Commerce Clause has been the subject of a well-developed body of case law – from Gibbons v. Ogden to NFIB v. Sebelius, as every Con Law student can tell you – and is among the most important of Congress’s affirmative powers.  The Supreme Court, however, has never told us much about the scope of the Foreign Commerce Clause, despite the numerous federal laws that have an explicit extraterritorial reach.

Last week, the Fourth Circuit decided a Foreign Commerce Clause case that suggests the Supreme Court may want to finally get involved with this subject.  The case is United States v. Bollinger, and it concerns 18 U.S.C. section 2423(c), making it a federal crime for any American who travels in foreign commerce, or who resides in a foreign country, to engage in illicit sexual conduct with another person.  Bollinger was a Lutheran minister and a sex addict who had a history of sexually molesting young girls in Haiti, where he lived since 2004 and where he oversaw a large ministry.  He confessed his infidelity to his wife and underwent intensive marital and sex-addict counseling.  He was eventually arrested in North Carolina and prosecuted pursuant to Section 2423(c).   He entered a conditional guilty plea and was sentenced to 25 years in prison.

The Government conceded that the illicit sexual activity was itself non-commercial, but nonetheless relied upon the Foreign Commerce Clause (as well as power to implement a treaty on sex trafficking, to which the United States is a signatory).  The Fourth Circuit agreed that the statute was valid under the Foreign Commerce Clause, and therefore did not address Congress’s treaty implementation power.  The court refused to import Interstate Commerce Clause jurisprudence and said that the Foreign Commerce Clause demands its “own interpretive framework,” just as exists with the Indian Commerce Clause.  Using the framework from United States v. Lopez as a guide (Congress may regulate the channels of interstate commerce; instrumentalities of interstate commerce; or activities that substantially affect interstate commerce), the court said that under the Foreign Commerce Clause, Congress has power to regulate channels or instrumentalities of foreign commerce, or activities that have a demonstrable effect on foreign commerce.  Here, the court said, it was rational to conclude that criminalizing non-commercial sexual abuse of children by Americans traveling abroad would have “a demonstrable effect on sex tourism and the foreign commercial sex industry.”

When I teach Federal Criminal Law, I include a discussion of the Foreign Commerce Clause and teach United States v. Clark, a Ninth Circuit case involving Section 2423(c) but one that involves commercial sex abroad rather than non-commercial sex (Clark traveled to and from Cambodia on a business visa, and engaged in sex there with young boys in exchange for a small amount of money).  The Clark court also relied upon the Interstate Commerce Clause precedents (notably Lopez and Gonzales v. Raich) and concluded that the Foreign Commerce Clause was sufficient justification for the statute.  But Judge Ferguson dissented, saying that the subject matter of Section 2423(c) – illicit sexual conduct – has nothing to do with commerce with a foreign nation.  Presumably, Judge Ferguson’s critique is even more powerful in a case like Bollinger, where even the Government concedes that the activity was non-commercial (a distinction that seemed to matter a lot to the court in Clark).  Cf. United States v. Pendleton (3rd Cir. 2011) (upholding Section 2423(c) as to non-commercial sex abroad, but doing so using a more restrictive Lopez analysis, saying the statute’s jurisdictional element is connected to the channels of foreign commerce).

Notably, then, while some courts have demanded that the Foreign Commerce Clause rest on an independent framework, they have nonetheless relied substantially on Interstate Commerce Clause case law for building that framework.

There is a split of authority among the federal courts on the meaning of the Foreign Commerce Clause.  In particular, lower federal courts are split as to the extent to which the Interstate Commerce Clause precedents form a basis for understanding the reach of the Foreign Commerce Clause.  I do not know yet whether Bollinger will petition for certiorari, but I am hopeful that the Supreme Court will take up a case like this soon – not to determine whether molesting young people in a foreign country is despicable (it is), but to determine whether the Foreign Commerce Clause provides a constitutionally sound basis for Congress to criminalize that particular despicable conduct, as well as a whole range of other activities (commercial or not) occurring beyond our borders.



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