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Enumerated Powers, Extraterritorial Child Abuse and Prairie Dogs
Michael Ramsey

Two interesting federalism cases:  

First, United States v. al-Maliki (no, not that al-Maliki) is a prosecution of a U.S. citizen for committing child abuse in Syria in 2010 (where he was visiting his ex-wife and children).  On appeal, al-Maliki argued for the first time  that the federal statute under which he was convicted is unconstitutional as beyond Congress' enumerated powers (the government argued that because he traveled in interstate/foreign commerce to reach Syria, everything he did there is within Congress' power).

The Sixth Circuit rejected al-Maliki's argument in a decision announced Wednesday, but mainly because it was not raised below. Judge David McKeague, writing for himself and Judge Jeffrey Sutton, observed: 

Under the original meaning of the Constitution, the Foreign Commerce Clause did not give Congress the power to punish the conduct at issue here. “Commerce” originally meant trade or “[i]ntercour[s]e,” 1 S. Johnson, A Dictionary of the English Language 361 (4th ed. 1773)—i.e., “selling, buying, and bartering, [and] transporting for these purposes.” United States v. Lopez, 514 U.S. 549, 585–86 (1995) (Thomas, J., dissenting); see Randy Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 112–125 (2001). So the Foreign Commerce Clause as originally understood gave Congress the power to regulate trade or intercourse with foreign countries. Simple enough. And it simply does not include the power to criminalize a citizen’s noncommercial activity in a foreign country, for that is not “Commerce” as originally understood. Nor, for that matter, is it commerce “with” a foreign Nation, which is also required by the textualist reading.

But, alas in the interstate context, we have long since moved away from the original meaning of “regulate Commerce,” so we turn to the case law’s modern definition of the term. ...

I like the "alas".

After extensive analysis of modern cases, especially United States v. Lopez, the opinion continues: 

Congress, it therefore appears, lacked the power under the Foreign Commerce Clause to pass [the applicable statute] as applied to noncommercial conduct. It makes sense, then, that the government conceded at oral argument that it couldn’t criminalize the same conduct occurring wholly intrastate. There isn’t—and can’t be—a generalized federal crime for traveling in interstate commerce with no illicit purpose and then, after a few months, committing illicit sexual conduct with a minor. It likewise makes sense that the government couldn’t articulate a limiting principle to prevent Congress from criminalizing jaywalking by a United States tourist in Canada. These are crimes in the States, e.g., Ohio Rev. Code Ann. § 2907.04 (illicit sexual conduct with a minor in Ohio), or crimes in foreign countries, e.g., Highway Traffic Act, R.S.O. 1990, c. H.8, § 144(22) (Can.) (jaywalking in Ontario), because those governments have a general police power. But the federal government does not. Morrison, 529 U.S. at 618–19.

So the government argues, as it must, that Congress has greater commerce power over conduct occurring in foreign countries than conduct occurring in the States. ...  

We are skeptical. One reason offered for this broader interpretation is the lack of federalism concerns when Congress regulates activities occurring in foreign countries rather than in the States. Appellee Br. 23. But an unbounded reading of the Foreign Commerce Clause allows the federal government to intrude on the sovereignty of other nations—just as a broad reading of the Interstate Commerce Clause allows it to intrude on the sovereignty of the States. More importantly, an overbroad interpretation of the Foreign Commerce Clause allows the government to intrude on the liberty of individual citizens. And that seems as least as wrong as a reading of the Commerce Clause that allows the government to intrude on the States. See U.S. Const. amend. X (reserving power to the States “or to the people.”).

In any event, Congress’s power over regulating foreign commerce is “exclusive,” yes, but only when Congress acts “within its compass.” Henderson v. Mayor of City of New York, 92 U.S. 259, 272–73 (1875). That means the States can’t regulate foreign commerce in place of the federal government. See id. at 274. But Congress must still regulate commerce, and it does not have exclusive or plenary power unless it does so. The power to regulate commerce with foreign countries may be exclusive, which is all Japan Line establishes. But that says nothing about what commerce means. Giving the word “the same meaning throughout” the Clause so it “remain[s] a unit,” Gibbons v. Ogden, 22 U.S. 1, 194 (1824); see Saikrishna Prakash, Our Three Commerce Clauses and the Presumption of Intrasentence Uniformity, 55 Ark. L. Rev. 1149, 1173 (2003), we doubt that Congress has regulated commerce here, much less commerce with a foreign country.

But we need not finally decide today. As explained in more detail below, because we conclude only that the statute is not obviously unconstitutional, al-Maliki’s challenge flunks plain-error review.

(Via How Appealing).

Meanwhile, Josh Blackman reports on briefing in the Utah prairie dog case, People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Services.  As he describes it, 

At issue in this case is [the application of the Endangered Species Act to] the Utah prairie dog, which has absolutely no economic value, and has never dug any holes across state lines. Even under Lopez, Morrison, and Raich, this rodent cannot be considered interstate commerce, and the necessary and proper power cannot reach this far.

The district judge agreed and the U.S. is appealing.