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Appeals Court: No Federal Power to Criminalize Drug Trafficking in Panama
Michael Ramsey

An important and interesting decision from the Eleventh Circuit, United States v. Bellaizac-Hurtado (Judge Pryor writing), holds the federal Maritime Drug Law Enforcement Act (MDLEA) unconstitutional as beyond Congress’ enumerated powers as applied to acts in Panamanian waters.  

Briefly, the facts are that a U.S. Coast Guard patrol spotted the defendants on a suspicious-looking boat in Panamanian waters; the defendants fled, abandoned the boat, (which turned out to have drugs on board) and fled on land until arrested by Panamanian law enforcement; Panama then extradited them to the U.S. where they were prosecuted under the MDLEA.

Three reactions: (a) a great originalist decision; (b) can it really be right?; and (c) why are we even having this argument?

(a)  Originalism and the Define-and-Punish Clause.  The U.S. claimed power to criminalize the defendants' conduct under Article I, Section 8’s define-and-punish clause: “The Congress shall have Power … [t]o define and punish … Offenses against the Law of Nations.”  The court of appeals found otherwise because (i) Congress’ power under the clause is limited to offenses that are, by agreement of all nations, international offenses; and (ii) drug trafficking is not such an offense.  In other words, Congress cannot “define” conduct to be a violation of the law of nations unless it is, in fact, a violation.

On the first and principal point, the court gives a strong originalist assessment:

The power to “define” offenses against the law of nations does not grant Congress the authority to punish conduct that is not a violation of the law of nations. …  During the Founding period, the word “define” meant “[t]o give the definition; to explain a thing by its qualities” and “[t]o circumscribe; to mark limits.” Samuel Johnson, A Dictionary of the English Language, at ___ (10th ed. 1792); see also Thomas Sheridan, A General Dictionary of the English Language, at __ (1780) (“To Define . . . . To give the definition, to explain a thing by its qualities; to circumscribe, to mark the limit.”). These definitions reveal that the word “define” would not have been understood to grant Congress the power to create or declare offenses against the law of nations, but instead to codify and explain offenses that had already been understood as offenses against the law of nations.

The records of the debates at the Constitutional Convention confirm that the Framers also understood the word “define” to be limited by international law. …

The structure of the Constitution also confirms the limited power of Congress under the Offences Clause. If Congress could define any conduct as … an “offence against the law of nations,” its power would be limitless and contrary to our constitutional structure. “The Constitution creates a Federal Government of enumerated powers. As James Madison wrote: ‘The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.’” United States v. Lopez, 514 U.S. 549, 552, 115 S. Ct. 1624, 1626 (1995) (citation omitted) (quoting The Federalist No. 45, pp. 292–93 (C. Rossiter ed. 1961)). “The enumeration of powers is also a limitation of powers, because the enumeration presupposes something not enumerated. The Constitution’s express conferral of some powers makes clear that it did not grant others. And the Federal

Government can exercise only the powers granted to it.” Nat’l Fed’n of Indep. Bus. v. Sebelius, __ U.S. __, 132 S. Ct. 2566, 2577 (2012) (internal quotation marks and citation omitted). …  For these reasons, we look to international law to ascertain the scope of power granted to Congress under the Offences Clause.

I agree, and I joined a professors’ amicus brief making this point in an unrelated antiterrorism case, Hamdan v. United States (in which the D.C. Circuit avoided the issue by ruling for the defendant on other grounds).  For further discussion of the define-and-punish issue, see Eugene Kontorovich's article Beyond the Article I Horizon: Congress’ Enumerated Powers and Universal Jurisdiction over Drug Crimes and Andrew Kent's article Congress’ Under-Appreciated Power to Define and Punish Offenses Against the Law of Nations.

(b) But, then … is drug trafficking an offense against the Law of Nations?  The opinion avoids asking whether the question is an offense at the time the Constitution was ratified, or an offense today.  In either case, it says, the answer is no. 

That conclusion may come as a bit of a surprise with respect to modern law in light of the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, ratified by 188 nations including the U.S. and Panama.     First, the court says that the “law of nations” means customary international law; and second, the court finds that the treaty doesn’t establish customary international law:

The 1988 Convention was ratified by an overwhelming majority of States and currently has 188 States Parties, … but the drug trade continues to flourish in many specially affected States despite their ratification of the Convention. In 2011, the President of the United States designated 21 of these States Parties as “major drug transit or major illicit drug producing countries.” … The International Narcotic Control Board—the independent, quasi-judicial body established by the United Nations to monitor compliance with international drug treaties—has reported that drug-related corruption “has increasingly weakened the criminal justice systems in Central America and the Caribbean” …

The practice of these specially affected States evidences that drug trafficking is not yet considered a violation of customary international law. Governments corrupted by the interests of drug traffickers are not simply unable to prosecute drug traffickers, but are often unwilling to do so because their economies are dependent upon the drug trade. … The persistent failure of these specially affected States to comply with their treaty obligations suggests that they view the curtailment of drug trafficking as an aspirational goal, not a matter of mutual legal obligation under customary international law.

This is a narrow way to look at the formation of customary international law -- I don't necessarily have a problem with it, though many international law scholars would likely object.  But that aside, doesn’t Congress also have the power to enforce (“carry[ ] into execution”) a treaty through the necessary and proper clause?  That is one of the core holdings of Missouri v. Holland (now potentially under challenge in Bond v. United States, the Third Circuit's case about federal enforcement power under the Chemical Weapons Convention).  And surely a treaty doesn't become merely "aspirational" just because some parties violate it.

Moreover, is it clear that the define-and-punish clause’s reference to “the Law of Nations” pertains only to what we now call customary international law?  Vattel’s classic work The Law of Nations (published in 1758 and very influential upon the framers) defined the law of nations to include treaties.  (Preface, p. 17 in the 2008 Liberty Fund edition: “There is another kind of law of nations … [that] proceeds from the will or consent of nations … by express engagements, by compacts and treaties.”).  True, these arguments have been strongly contested on originalist grounds by Nicholas Rosenkranz and others.  But I have some difficulty seeing how the Eleventh Circuit decision is consistent with the Third Circuit’s decision for the government in Bond (and the Eleventh Circuit doesn’t consider the issue).

(c)  Finally, why do any of these arguments matter?  In Gonzales v. Raich, the Supreme Court held that the federal government could criminalize non-commercial intrastate use of marijuana under the interstate commerce power (because, it said, Congress could rationally conclude that allowing non-commercial intrastate use might undermine the comprehensive federal ban on interstate sales).  If that’s right, then I would think Congress can also ban foreign maritime trafficking under its commerce power on the ground that allowing foreign maritime trafficking undermines the prohibition on domestic distribution.  (Indeed, presumably that’s the point of both the MDLEA and the 1988 Convention).  True, the connection between the foreign trafficking and the domestic effect is a bit speculative, but so was the connection in Raich.

Of course, I think Raich was wrongly decided under the Constitution’s original meaning, but it is (for now) the law of land.  According to the Eleventh Circuit, the United States defended the MDLEA only under the define-and-punish clause, but I don’t have any explanation for that strategy.

On the whole, it’s a fascinating case to consider Congress’ enumerated powers.  Interested, Supreme Court? 

(Via How Appealing)