Touring Commerce Clause Jurisprudence: The Constitutionality of Prosecuting Non-Commercial Sexually Illicit Acts under 18 U.S.C. § 2423(c)
Hogan, Christine L., St. John's Law Review
A man flies from California to Thailand on business for one week. He stays at an upscale hotel, eats at four-star restaurants, and buys souvenirs for his wife. In his free time, he seduces impoverished Thai children with the promise of chocolate and molests them.1
The United States Constitution empowers Congress "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."2 Although the Constitution is not explicit, courts have construed Congress's foreign commerce power as more expansive than its interstate commerce power.3 Commerce "describes the commercial intercourse between nations, and parts of nations, in all its branches."4 The commerce power, however, is only limited by the broad boundaries set by the Constitution itself.5 Consequently, courts have empowered Congress to regulate even non-commercial activities through the Commerce Clause, as long as those activities substantially affect commerce.6
Congress initially focused its Commerce Clause authority on regulating interstate, economic activity.7 In the last century, however, Congress has utilized the commerce power to enact criminal laws,8 and more recently, laws that prohibit criminal acts on foreign soil.9 One such law, 18 U.S. C. § 2423(c),10 permits the government to prosecute a United States citizen, just like the businessman in the hypothetical,11 "who travels in foreign commerce, and engages in any illicit sexual conduct with another person."12 Although the Ninth Circuit has upheld the constitutionality of prosecuting commercial illicit sexual conduct under § 2423(c),13 no court in this nation has determined the constitutionality of prosecuting non-commercial illicit sexual conduct under the statute: "Whether those aspects of the law have enough of a connection to foreign commerce to be constitutional remains an open question."14
Section 2423 splits "illicit sexual conduct" into two types: commercial and non-commercial.15 The statute defines commercial sexual conduct as a commercial sex act with a person under 18 years old,16 where a party exchanges something of value.17 In contrast, the statute defines non-commercial sexual conduct as a sex act18 "with a person under 18 years of age that would be in violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States."19 This includes the following crimes: aggravated sexual abuse, sexual abuse, sexual abuse of a minor or ward, abusive sexual contact, and sexual abuse offenses resulting in death.20
On its face, prosecuting non-commercial sex acts under § 2423(c) is a constitutionally permissible exercise of Congress's commerce power. Although the statute probably will not pass muster under a channels of commerce analysis,21 the aggregate economic effects of non-commercial sex offenders, as an indispensable part of a larger economic scheme to prevent child sex tourism, substantially affects foreign commerce.22 With the argument strengthened by the application of the proper standard of review23 and the overwhelming policy arguments in favor of the statute's constitutionality, this analysis cannot fail.
Part I of this Note will present an overview of child sex tourism. It will establish that child sex tourism is an international problem with far-reaching economic implications. It will then clarify the legislative history of 18 U.S.C. § 2423 and Congress's intent, to prevent sex tourism, in establishing both the predecessor statutes and current incarnation of 18 U.S.C. § 2423(c). Part II of this Note will lay out the relevant framework for analysis. It will argue that the three-category framework of United States v. Lopez,24 although established in an interstate commerce context, is the best method of constitutional analysis. Finally, Part III of this Note will confirm the constitutionality of 18 U.S.C. § 2423(c). It will examine the statute through both a channels of commerce and substantial effects analysis, and demonstrate that both precedent and policy demand a finding of constitutionality. …