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Judge Kethledge on Sex in Cambodia (Part 2)
Michael Ramsey

This is my second post about U.S. v. Rife, the Sixth Circuit case in which a U.S. citizen (Rife) was prosecuted for molesting girls in Cambodia.  As described in my first post, Judge Kethledge, writing for a divided panel, first found the law to exceed Congress' powers under the original meaning of the foreign commerce clause.

He then went on to find that the law was within Congress' power to implement treaties, but only on the basis of the Supreme Court's decision in Missouri v. Holland.  And he sharply questioned Missouri v. Holland on originalist grounds:

Th[e] question is whether the President and two-thirds of the Senate, by the sole fact of their consent to a treaty, can empower Congress to enact legislation that it otherwise could not enact by the exercise of its enumerated powers in Article I. The  implications of that question are “seismic[,]” because the prevailing view appears to be that “the Treaty Clause comes with no implied subject-matter limitations.” Bond, 572 U.S. at 877 (Scalia, J., concurring in the judgment). For if the Treaty Power has no subject-matter limitations, Congress’s power to enact laws that implement treaties would not have any subject-matter limitations either. ... The Necessary and Proper Clause would become a portal, through which Congress would leave behind its limited powers and exercise, at last, an unlimited one. For example, a treaty addressing climate change—or an international convention for the prevention of infectious diseases—might empower Congress to regulate virtually any conduct it chose. Congress would be “one treaty away from acquiring a general police power.” Id. at 879.

[The opinion then reviews the struggle to contain the power of the monarchy in English history, and the colonies' struggle against claims of unlimited power by Parliament.]

In light of this history, the idea that the Founding generation would have included in the Constitution—as part of an ancillary power of Article I, no less—a hidden power to “overleap the bounds” of all the other powers in that Article, and to legislate “in all cases whatsoever,” is simply implausible. The Revolution was fought in opposition to the Declaratory Act [declaring Parliament supreme over the colonies], not to make it the supreme law of the land. Chief Justice Marshall recognized as much when he wrote that “a great substantive and independent power . . . cannot be implied as incidental to other powers, or used as a means of executing them.” McCullough v. Maryland, 17 U.S. 316, 411 (1819). Yet the government asks us to recognize such a power here. That the conduct at issue in the case occurred overseas is merely a fortuity: the principle it advocates would enable Congress, with the right treaty, to regulate any conduct it chooses domestically. And that Rife’s conduct deserves severe punishment does not allow us to authorize it contrary to law. 

I disagree, for the reasons explained in this article.  First, Judge Kethledge does not explain what in the Constitution's text leads to his conclusion.  Rather, he relies on speculation that the framers could not have intended the result.  I think that is methodologically unsound: the Constitution's text provides the rules, not our conclusions about what the framers must have wanted.  And the Constitution's text says (a) treatymaking is a power of the President and the Senate; and (b) Congress has power to carry into execution other powers of government.  Second, giving Congress power to carry treaties into execution does not give Congress power to "regulate any conduct it chooses."  There must actually be a treaty -- a matter not within Congress' control, but dependent on consent of two-thirds of the Senate.  Moreover, under the original Constitution, Senators were appointed by the states, so a treaty originally depended on two-thirds of the states (almost enough to amend the Constitution). And further, I agree with Justice Thomas' concurrence in the Bond case that a treaty, to be a legitimate treaty and not a sham, must address a matter of international concern.  It's true that these limits still give a wide scope to Congress' treaty implementation power -- probably a wider scope than the framers imagined -- but it seems the necessary consequence of the text. (I'd add as well that the President and Senate can in any event make a treaty self-executing, and achieve the broad regulatory effect Judge Kethledge fears without invoking any power of Congress).

Third, also as argued in the article linked above, courts can and should read Congress' treaty implementation power narrowly, precisely because of the dangers Judge Kethledge identifies.  One narrowing strategy I advocated is to be sure that Congress' implementing law does not go beyond what is required by the treaty.

I regret that Judge Kethledge did not adopt that strategy here, as it was easily available.  The relevant treaty is the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography.  It requires (art. 2(b), 3(1)(b)) ratifying countries to prohibit “[o]ffering, obtaining, or procuring or providing a child for child prostitution,” including “the use of a child in sexual activities for remuneration or any other form of consideration.” (This is made clear in Judge Stranch's opinion concurring in the judgment). But Rife did not engage in any such activities, and the statute under which he was prosecuted goes well beyond the use of children for commercial sex, prohibiting any "illicit sexual conduct" irrespective of its commercial nature.

Judge Stranch addresses this point in concurrence and argues:

Although the Optional Protocol does not explicitly require the criminalization of non-commercial sexual abuse, there is a rational relationship between the aims of the Optional Protocol and the implementing PROTECT Act [the relevant federal statute]. The United States State Department explained that the revised version of § 2423(c) that criminalizes non-commercial child sexual abuse committed abroad was part of the nation’s efforts to fulfill its obligations under the Optional Protocol. ...  The Optional Protocol itself states that its bare terms, such as the focus on only commercial sexual abuse, are a minimum.  ...  As the D.C. Circuit explained in Park, the treaty’s “goal of eliminating commercial child sexual exploitation, including global sex tourism, could be undercut if Congress failed to criminalize non-commercial child sex abuse by U.S. residents abroad.” Park, 938 F.3d at 368. The Necessary and Proper Clause allows Congress to address “regulatory gaps” such as the concern about non-commercial sexual abuse of minors.

I think this is mistaken, and stretches Congress' treaty implementation power too far.  That there is a "concern about non-commercial sexual abuse of minors" does not allow Congress to regulate noncommercial abuse as part of implementing a treaty requiring criminalization of commercial abuse.  The "regulatory gap" exists because the treaty does not extend as far as Congress wishes it did.  But Congress has power to implement the treaty we ratified, not the treaty it wishes we ratified.  It's not clear to me that there's even a "rational relationship" between regulating commercial sex trafficking and regulating private noncommercial sexual misconduct -- but even if there is, I think "rational relationship" is the wrong test.  Allowing Congress to go beyond the limits of the treaty under such a weak test raises the dangers of unlimited power to which Judge Kethledge refers.

In sum, Congress has power to assure that the United States complies with its treaty obligations, and nothing more. That should not include power to regulate matters that may be tangentially related to the treaty, but are not encompassed within it.  In my view applying the statute to Rife's conduct exceeded the treaty implementation power.  And I think adopting that approach is a better strategy for containing the treaty implementation power than a frontal attack on Missouri v. Holland.

(Thanks to Andrew Hyman for the pointer to Rife, and I suspect he may disagree with me.)

COMMENT FROM ANDREW HYMAN: Regarding the Treaty Power, I agree with Mike that, if Congress really does have a treaty implementation power that goes beyond its normal enumerated powers, then courts should make sure  Congress's implementing law “does not go beyond what is required by the treaty.”  But I’m skeptical Congress does have a general treaty implementation power, in view of Justice Scalia’s textual argument in the Bond case.  If Scalia was right, then implementing regulations outside Congress’s enumerated powers would have to go into the treaty text itself, and Mike doesn’t deny that that’s always an option, in which case his limitation (“does not go beyond what is required by the treaty”) would be ineffective. Likewise, the requirement that treaties only cover matters of legitimate international concern also seems very malleable and therefore ineffective.  One might limit the treaty power by arguing that various enumerated powers such as the power to declare war are exclusive, but the powers described in the Tenth Amendment seem exclusive too.  If Justice Scalia was correct that all federal implementation measures beyond Congress’s enumerated powers have to be dumped into the treaty text itself, then it’s also worth observing that the Take Care Clause (unlike the Supremacy Clause) does not mention anything about treaties, so states may well be on their honor to execute treaty provisions that Congress and the President both lack power to implement.  Of course, to the extent the President does have such power without relying upon the Treaty Clause, then he is on his honor to use it, because a treaty without an escape clause remains the supreme law of the land (Congress has power to supersede any treaty as domestic law but Congress is still on its honor to respect international law).  See Constitutional Diplomacy by Michael Glennon, page 203 (asserting that the Take Care Clause only applies to laws enacted by Congress).