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Josh Blackman on the MDLEA and the Foreign Commerce Clause
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: Eleventh Circuit Panel finds that Maritime Drug Law Enforcement Act exceeds Congress's Powers under the Foreign Commerce Clause and the Necessary and Proper Clause Powers.  From the introduction:

In August, a panel of the Eleventh Circuit decided U.S. v. Davila-Mendoza. The case presented an as applied challenge to the Maritime Drug Law Enforcement Act. The MDLEA prohibits drug-trafficking in foreign waters. Judge Branch wrote the majority opinion, which was joined by Judge Jill Pryor (no relation to Chief Judge Bill Pryor) and Judge Danny Boggs (my former boss from the Sixth Circuit who was sitting by designation). The panel found that the MDLEA exceeded Congress's powers under the Foreign Commerce Clause and the Necessary and Proper Clause.

Here, the Court presumes the Lopez framework for the Interstate Commerce Clause extends to the Foreign Commerce Clause. The MDLEA could only be upheld under the so-called "substantial effects" test. (In fact, the "substantial effects" test is an application of Congress's Necessary and Proper Clause power, but Chief Justice Rehnquist elided this position.) The substantial effects test allows Congress to regulate intrastate economic activity that has a substantial effect on interstate commerce. But there is a problem for this case. Economic activity in foreign waters is not intrastate economic activity. Judge Branch shows a careful grasp of Raich:

Turning to Raich, the government argues that Raich reaffirmed that wholly intrastate economic activities could have a substantial effect on interstate commerce and could be regulated by Congress via the Interstate Commerce Clause. Therefore, according to the government, if we logically extend Raich to this case, the MDLEA's application to the defendants' extraterritorial conduct is a permissible exercise of Congress's authority under the Foreign Commerce Clause because Congress could rationally conclude that foreign drug trafficking could have a substantial effect on the international drug trade, which has an aggregate economic impact on foreign commerce. However, while Raich may serve as a backdrop for our analysis, Raich involved Congress's power to regulate commerce "among the states," which undoubtedly presents a different question than Congress's power to regulate commerce "with foreign nations," and, therefore, does not necessarily control our analysis. In other words, the Interstate Commerce Clause jurisprudence must be carefully adapted to fit the "commerce with foreign nations" context.

I'm sympathetic to the outcome, but I don't easily see how one gets there other than by thinking Raich was wrongly decided.  I wouldn't think that Congress' necessary-and-proper power with respect to the interstate commerce clause is broader than its necessary-and-proper power with respect to the foreign commerce clause.  If anything, one might think it would be narrower, because a broad reading of the interstate commerce power interferes with the federalism-based prerogatives of the states; a broad reading of the foreign commerce power may interfere with the  prerogatives of foreign nations, but that's not a matter of constitutional magnitude. 

Of course, the court of appeals can't say Raich was wrong, so maybe this is a way to set the case up for Supreme Court review (and maybe the current Court would think Raich was wrong, or at least too broad).