Judge Kethledge on Sex in Cambodia (Part 1)Michael Ramsey

This sounds like a law school exam hypothetical: Mr. Rife, a U.S. citizen, lives in Cambodia and teaches school there.  He allegedly molests some of the girls at his school.  When he returns to the U.S., he's prosecuted under a federal law criminalizing sexual misconduct anywhere in the world.  Is the law within Congress' constitutional powers?  Discuss.

Actually it's a real case, U.S. v. Rife, decided by the Sixth Circuit last week (per Judge Kethledge, with Judge Bush joining and Judge Stranch concurring in the judgment).  Judge Kethledge (an outstanding originalist) addresses the foreign commerce power and the treaty power, which I'll consider in separate posts.

As to the foreign commerce power, Judge Kethledge finds it doesn't provide a basis for the statute (18 U.S.C. § 2423(c)).

First, he says that the Supreme Court's precedents on the interstate commerce clause (a) go beyond the original meaning and (b) aren't binding with respect to the foreign commerce clause: 

The Court’s departure from the original meaning of “commerce” came in the third category: summarizing the Court’s caselaw, again with respect to interstate commerce in particular, the Court in Lopez recited that “Congress’ commerce authority includes the power to regulate” not only commerce itself, but also “those activities that substantially affect interstate commerce.”

In the 80 years since the Supreme Court added that third category to Congress’s power to regulate interstate commerce—an addition that has come to overshadow the original structure to which it was attached—the Court has not extended it to Congress’s power to regulate under the Foreign Commerce Clause. See Baston v. United States, 137 S. Ct. 850, 852 (2017) (Thomas, J., dissenting from denial of certiorari) (observing that the federal circuit courts have been “[w]ithout guidance from this Court as to the proper scope of Congress’ power under this Clause”). Thus, a threshold question here is whether we must or should extend that addition to Congress’s foreign-commerce power ourselves.

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Our answer to that question rests on first principles. Law is a public act. Its meaning depends not on the secret intentions of lawgivers, but on the meaning understood by the people bound by it. Basic principles of due process require no less. Meanwhile, the creation of positive law—meaning statutes and the Constitution itself—can occur only pursuant to the procedures prescribed in the Constitution. For statutes, those procedures are bicameralism and presentment. See Art. I, § 7. For the Constitution—setting aside its original ratification under Article VII—those procedures are the ones prescribed in Article V. Thus, for statutes and constitutional provisions alike, there is a straight line from the constitutional requirements for making law; to a text that has met those requirements; to the meaning that the citizens bound by that text would have ascribed to it, which is to say its original meaning; and to what is then the law, which as judges we are bound to apply. Hence the Constitution’s original meaning is law, absent binding precedent to the contrary.

There is no such precedent here. See Baston, 137 S. Ct. at 852 (Thomas, J., dissenting). Nor do we otherwise see any compulsion to add to the Foreign Commerce Clause the revisionist structure that, 80 years ago, the Supreme Court added to the Interstate Commerce Clause.

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In sum, to determine whether Rife’s conviction under 18 U.S.C. § 2423(c) was supported by the Foreign Commerce Clause, we ask whether his conduct fell within Congress’s power to “regulate Commerce with foreign Nations,” as that power was originally understood.

This strikes me as a super-aggressive  version of not extending non-originalist precedent.  The so-called interstate commerce clause and the so-called foreign commerce clause are part of the same clause, giving Congress power "To regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes."  Even as one who advocates reading non-originalist precedent narrowly, I'm not sure that precedent on the second part of this clause shouldn't be precedent for the first.  I would not think that Congress' power over interstate commerce should be broader than its power over foreign commerce. But, I like his instincts: non-originalist precedent is only binding on indistinguishable issues.

Here's the core of his originalist analysis:

Rife’s molestation of his two victims was undisputedly noncommercial, and thus was not itself trade or commerce of any kind. True, Rife met his victims at the school where he taught; but the government concedes that his abuse conduct was itself in no way commercial. ...

Rife’s abuse of his two victims was likewise not part of any transportation or traffic in foreign commerce. To the contrary, Rife had ceased travelling in foreign commerce when he arrived in Cambodia years before. The government counters that § 2423(c) has what it calls a “jurisdictional hook”—namely (as charged here) that that defendant has “travel[led] in foreign commerce”—which in the government’s view cures any defect in Congress’s power to reach Rife’s conduct here. ... [But] the bare fact that an American “travels in foreign commerce” does not empower Congress to regulate, under the Foreign Commerce Clause, everything that American does afterward. That is the plain implication of the government’s argument here: that, once an American citizen travels in foreign commerce, the federal government has a police power to regulate (or proscribe) any conduct that citizen might engage in overseas, from marrying a foreign national to consuming foie gras. Congress has no such power.

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Here, Rife’s travel to Cambodia was not itself a criminal offense. And the government’s argument here—that the “travels in interstate or foreign commerce” element empowers the government to regulate any conduct or omission that follows—again amounts to an assertion of a federal police power over the conduct of American citizens overseas.

In sum, Rife’s conviction under 18 U.S.C. § 2423(c) for molesting his two victims in Cambodia, years after he travelled there, and without any commercial exchange, was not an exercise of Congress’s power to “regulate Commerce with foreign  nations[.]” His conviction cannot stand on that ground.

I'm not sure about this analysis either.  First, there's a question of what "Commerce with foreign Nations" means.  Does it mean commerce carried on between places in the United States and places abroad? Or does it mean commerce carried on between U.S. citizens and foreign citizens?  See Christopher Green, Tribes, Nations, States: Our Three Commerce Powers.  I think (like Professor Green) it's probably the latter.  If so, Mr. Rife clearly engaged in foreign commerce (teaching at a school).

Second, if Mr. Rife was engaged in foreign commerce, why can't Congress regulate his tortious activity connected to his commerce?  (He allegedly molested students at his school.)  Judge Kethledge makes two points: (1) the prohibited activity itself was noncommercial, and (2) ruling the other way would give Congress an unlimited police power over all activities of U.S. citizens abroad.

The first point is true, but not decisive.  The commerce power I think allows Congress to regulate non-commercial harms arising from a commercial transaction.  If I engage in theft as part of my interstate/foreign business, Congress should be able to regulate that.  If my interstate/foreign business tortiously harms someone, Congress should be able to regulate that.  Rife was engaged in foreign commerce when he harmed the girls: they were his customers.

The second point I think is not true in this case, although it's true of the statute generally.  Following the analysis in the prior paragraph, I would say that Congress can regulate Rife's conduct only because it occurred in connection with Rife's participation in foreign commerce.  That would not be true of all U.S. citizens' activities abroad.  For example, if Rife were living in Cambodia and assaulted someone not in connection with any commercial activity, I would say that is beyond Congress' commerce power for exactly the reasons Judge Kethledge gives.

Nonetheless, I think it's probably right as a technical matter that Mr. Rife shouldn't be convicted under the statute (if the statute rested only on the foreign commerce power).  The statute covers anyone “who travels in foreign commerce or resides, either temporarily or permanently, in a foreign country, and engages in any illicit sexual conduct with another person.”  Even though I'd say a narrower statute can constitutionally reach his conduct, this one is much too broad; it's not limited (as it should be under the foreign commerce clause) to illicit sexual activity connected to a commercial activity.  Though I'm not an expert in criminal law, the law's overbreadth seems to allow the government to convict Rife without showing the constitutionally required connection to foreign commerce (even though the government could have made that showing).  I'm not sure if that should allow his conviction to stand or not.

Next up: can the conviction be sustained under Congress' power to implement treaties?

UPDATE:  Michael Rosman comments: 

I liked your analysis although you did not make as clear as I would have preferred what the connection was between the defendant’s commercial activity and the non-commercial conduct that formed the basis of the charge against him.  If I sell a customer a widget and then later in the week assault him, I’m not sure the mere fact that he was a customer makes the assault commercial.

On your last point, Alfonso Lopez was caught “possessing” a gun within 1000 feet of a school because he was delivering it for $20.  So his particular possession was commercial, even though that was not an element of the crime with which he was charged.  The court analyzed the statute as a whole and concluded that it was unconstitutional.   I wrote about this whole “overbreadth” issue in Commerce Clause litigation a while back: Facial Challenges and the Commerce Clause: Rethinking Lopez and Morrison, 4 Faulkner L. Rev. 1 (2012).