Washington Law Review


Although the U.S. Supreme Court has not yet ruled any statutes criminalizing the conduct of Americans overseas unconstitutional under the Foreign Commerce Clause, three U.S. Courts of Appeals decisions use the concept of enumerated powers—important in U.S. Supreme Court decisions that invalidate statutes grounded in the Interstate Commerce Clause—to suggest limitations on Congress's Foreign Commerce Clause power. In two decisions, the U.S. Courts of Appeals for the Fifth and Ninth Circuits employed the U.S. Supreme Court's Interstate Commerce Clause framework when analyzing statutes under the Foreign Commerce Clause. In so doing, these courts suggest that Foreign Commerce Clause power is not plenary—the constitutional concerns driving the U.S. Supreme Court to recognize limitations on Congress's Interstate Commerce Clause power also impose limitations on Congress's Foreign Commerce Clause power. In the third decision, the Ninth Circuit Court of Appeals suggested a similar limitation, holding that Congress could enact a statute under its Foreign Commerce Clause power only if the statute demonstrated a constitutionally tenable nexus with foreign commerce by including an economic component. Section 2423(0(1) of the PROTECT Act, which criminalizes noncommercial sexual abuse of minors overseas, fails to withstand Foreign Commerce Clause scrutiny under current U.S. Courts of Appeals analyses because the statute regulates criminal conduct occurring outside the channels of foreign commerce and does not include an economic component.

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