Congressional Power to Regulate Noncommercial Activity Overseas: Interstate Commerce Clause Precedent Indicates Constitutional Limitations on Foreign Commerce Clause Authority

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Abstract: Although the U.S. Supreme Court has not yet ruled any statutes criminalizing the conduct of Americans overseas unconstitutional under the Foreign Commerce Clause, three U.S. Courts of Appeals decisions use the concept of enumerated powers-important in U.S. Supreme Court decisions that invalidate statutes grounded in the Interstate Commerce Clause-to suggest limitations on Congress's Foreign Commerce Clause power. In two decisions, the U.S. Courts of Appeals for the Fifth and Ninth Circuits employed the U.S. Supreme Court's Interstate Commerce Clause framework when analyzing statutes under the Foreign Commerce Clause. In so doing, these courts suggest that Foreign Commerce Clause power is not plenary-the constitutional concerns driving the U.S. Supreme Court to recognize limitations on Congress's Interstate Commerce Clause power also impose limitations on Congress's Foreign Commerce Clause power. In the third decision, the Ninth Circuit Court of Appeals suggested a similar limitation, holding that Congress could enact a statute under its Foreign Commerce Clause power only if the statute demonstrated a constitutionally tenable nexus with foreign commerce by including an economic component. Section 2423(f)(1) of the PROTECT Act, which criminalizes noncommercial sexual abuse of minors overseas, fails to withstand Foreign Commerce Clause scrutiny under current U.S. Courts of Appeals analyses because the statute regulates criminal conduct occurring outside the channels of foreign commerce and does not include an economic component.

In United States v. Clark,1 the U.S. Court of Appeals for the Ninth Circuit held that 18 U.S.C. § 2423(f)(2),2 a provision of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (PROTECT Act),3 did not exceed Congress's enumerated authority "to regulate Commerce with foreign Nations."4 In rejecting the defendant's Foreign Commerce Clause challenge against § 2423(c), the Ninth Circuit deliberately limited its holding to § 2423(f)(2)5-which prohibits U.S. citizens and permanent residents from engaging in commercial sex acts with minors overseas.6 The court did not address a different part of the PROTECT Act, namely 18 U.S.C. § 2423(f)(1),7 which criminalizes noncommercial sexual abuse of minors overseas.8

This Comment addresses Congress's constitutional authority under the Foreign Commerce Clause to enact § 2423(f)(1) of the PROTECT Act. It argues that, at least under the analyses currently employed by the U.S. Courts of Appeals,9 the criminalization of noncommercial sexual abuse of minors overseas falls outside the legitimate scope of Congress's Foreign Commerce Clause authority. The current Foreign Commerce Clause analyses in the U.S. Courts of Appeals draw heavily on the U.S. Supreme Court's Interstate Commerce Clause analysis.10 Accordingly, Congress's power to enact legislation under the Foreign Commerce Clause appears limited to laws that would either satisfy the Interstate Commerce Clause framework or demonstrate a tenable nexus with foreign commerce by including an economic component. section 2423(f)(1) does not withstand Foreign Commerce Clause scrutiny under current U.S. Courts of Appeals analyses because the provision fails to demonstrate either of these required connections to commerce.

Part I of this Comment describes § 2423(f)(1) of the PROTECT Act. Part II discusses the limits of congressional authority under the Interstate Commerce Clause. Part HI describes two U.S. Courts of Appeals decisions that evaluate Foreign Commerce Clause challenges by employing the U.S. Supreme Court's Interstate Commerce Clause analysis. Part IV examines a slightly different analysis, applied by the Ninth Circuit in Clark, which requires that the text of the challenged statute demonstrate a constitutionally tenable nexus with foreign commerce. Applying those analyses to § 2423(f)(1), Part V argues that Congress's criminalization of noncommercial sexual abuse of minors overseas cannot be justified solely on the basis of Congress's Foreign Commerce Clause authority. …