Constitutional Law - Foreign Commerce Clause - Ninth Circuit Holds That Congress Can Regulate Sex Crimes Committed by U.S. Citizens Abroad

Harvard Law Review, June 2006 | Go to article overview

Constitutional Law - Foreign Commerce Clause - Ninth Circuit Holds That Congress Can Regulate Sex Crimes Committed by U.S. Citizens Abroad


CONSTITUTIONAL LAW--FOREIGN COMMERCE CLAUSE--NINTH CIRCUIT HOLDS THAT CONGRESS CAN REGULATE SEX CRIMES COMMITTED BY U.S. CITIZENS ABROAD.--United States v. Clark, 435 F.3d 1100 (9th Cir. 2006).

Few constitutional grants of power have undergone less scrutiny than the plenary power of Congress over foreign commerce. Compared to the number of forests felled in delineating the scope of its considerably more famous interstate commerce cousin, the Foreign Commerce Clause (1) has generated very little copy since publication of The Federalist No. 11 (2) in New York newspapers in 1787. But given that Congress may invoke its power to regulate foreign commerce more and more as the list of truly global concerns expands, this jurisprudence cannot long remain in desuetude. Recently, in United States v. Clark, (3) the Ninth Circuit disdained the strictures of Interstate Commerce Clause doctrine in holding that the provision of the Prosecutorial Remedies and Other Tools To End the Exploitation of Children Today Act of 2003 (4) (PROTECT Act) criminalizing international child sex tourism is a valid exercise of Congress's power under the Foreign Commerce Clause. (5) The Ninth Circuit's bid to quit the nest of interstate commerce doctrine is laudable, but its doctrinal flight may prove Icarian. Grounding the statute in the Treaty Clause and Necessary and Proper Clause may provide the necessary ballast.

In 2003, Michael Lewis Clark became the first person to be charged under 18 U.S.C. [section] 2423(c), a provision of the PROTECT Act. (6) Clark, a seventy-one-year-old U.S. citizen, maintained domiciliary ties to the United States but claimed Cambodia as his primary residence from 1998 onward. (7) Acting on information from a local NGO, the Cambodian National Police arrested Clark in late June 2003 in flagrante delicto with two boys approximately ten and thirteen years old, (8) and he admitted to a history of sexual activity with Cambodian boys at a price of a few dollars per transaction. (9) He was then extradited to the United States, where he was indicted and pled guilty to two counts of sexual misconduct under the PROTECT Act. (10)

Clark reserved the right to challenge the Act on statutory, jurisdictional, and constitutional grounds, (11) but the district court denied his motion to dismiss. (12) Turning first to statutory construction, the court summarily disposed of Clark's argument that he was not within the legislation's targeted "sex tourist" class. (13) The court dispatched with equal alacrity Clark's argument that assertion of U.S. jurisdiction would be invalid and unreasonable under principles of international law. (14) The court next rejected Clark's position that extraterritorial application of [section] 2423(c) violated the Due Process Clause. (15) Analogizing to the "minimum contacts" test in personal jurisdiction doctrine and relying on the U.S. government's interest in combating sex trafficking, (16) the court held that an American citizen could reasonably anticipate being haled into an American court for illicit sexual conduct with minors abroad. (17) Finally, the court repudiated Clark's challenge to congressional authority under the Commerce Clause, citing the heightened separation of powers concerns implicated by foreign commerce. (18)

The Ninth Circuit affirmed. Writing for a divided panel, Judge McKeown (19) first rejected Clark's international law claims, invoking the nationality principle to find jurisdiction based solely on Clark's status as a U.S. citizen. (20) She then appealed to the canon against absurdity to reject Clark's new statutory argument that [section] 2423(c) requires the illegal sexual act to take place while the perpetrator is literally traveling. (21) With respect to the due process claim, Judge McKeown drew upon the longstanding principle that U.S. citizenship alone provides a sufficient basis for jurisdiction (22) in holding that extraterritorial application of [section] 2423(c) was "neither 'arbitrary [n]or fundamentally unfair'" in these circumstances. …

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