Commerce Clause—9th Circuit Affirms Trade Basis for Criminal Sex Acts Abroad

In a 2-1 decision yesterday, the 9th Circuit Court of Appeals upheld a district court ruling that Americans who engage in sex crimes for pay in other countries may be prosecuted under United States law.^[1] Specifically, the appeal court opinion held that the legislature’s plenary power to regulate trade with foreign countries under the Commerce Clause extends to the individual criminal conduct of U.S. citizens abroad.^[2]

In the majority opinion in U.S. v. Clark, the analysis began and ended with the commercial aspect of the criminal statute in question, 18 U.S.C. § 2423(c), Transportation of Minors. The majority wrote that "[t]he illicit sexual conduct reached by the statute expressly includes commercial sex acts performed by a U.S. citizen on foreign soil. This conduct might be immoral and criminal, but it is also commercial."^[3] In evaluating the constitutional challenge, the court also noted that the Supreme Court has consistently read the Foreign Commerce Clause broadly and in fact, has “never struck down an act of Congress as exceeding its powers to regulate foreign commerce.”^[4]

In dissent, Judge Ferguson countered that “"The Constitution cannot be interpreted according to the principle that the end justifies the means… The sexual abuse of children abroad is despicable, but we should not, and need not, refashion our Constitution to address it."^[5]

Foreign Commerce Clause
Under Article I, Section 8 of the U.S. Constitution, Congress holds the plenary power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”^[6] Here, the issue is whether the Commerce Clause can be used to enforce a statute that criminalizes sex acts committed by individuals abroad. The court reviewed this question for “plain error” under a rational basis standard of review.^[7]

The court held that when an individual travels in foreign commerce to a foreign country and [insert statutorily prohibited commercial conduct here], “his conduct falls under the broad umbrella of foreign commerce and consequently within congressional authority under the Foreign Commerce Clause.”^[8]

This analysis looks at two prongs: travel in foreign commerce and commercial conduct. Here, the court found that getting on a plane in the U.S. and landing in Cambodia (albeit after traveling through Japan, Malaysia, and Thailand) is sufficient for the element of “travel in foreign commerce.” The second prong is satisfied by the existence of an “economic component” to the prohibited conduct.^[9] Read this broadly, any exchange involving a good or service abroad is presumptively foreign commerce and, even as individual conduct, may be regulated under the Commerce Clause.^[10]

Although this analysis seems to limit the Foreign Commerce Clause power to prohibited commercial acts, the court takes pains to demonstrate that this is merely the commercial analysis for the constitutionality of this power. The decision notes that subsection (b) of this same statute was also affirmed—under a more traditional Commerce Clause analysis—as a legitimate exercise of the Foreign Commerce Clause by the 5th Circuit Court of Appeals.^[11] The majority argues that “[t]hese are two different statutes with separate justifications under the Commerce Clause.”^[12]

The fact remains that the 9th Circuit would have us use a power designed to regulate commercial trade between nations as a basis for the criminal prosecution of an individual under a criminal statute. As Judge Ferguson notes in his dissent, this is too much like a “grant of international police power.”^[13] So long as travel by a U.S. citizen and some exchange of good or services is involved at all, the court says, the government may use its foreign trade regulation power to prosecute its citizens anywhere in the world. This decision reads like a collateral expansion of extraterritorial jurisdiction over individuals.

The Case
Michael Lewis Clark pled guilty to two counts of violating 18 U.S.C. § 2423(c) (Transportation of Minors) and sentenced to 97 months in jail.^[14] The charges stem from his arrest for “debauchery” by Cambodian police in Phnom Penh in 2003.^[15] A synopsis of the case is available in our discussion of recent cases interpreting jurisdiction under international law here.

His plea left open the possibility of appeal solely on the constitutional grounds. However, this case also sounds broader jurisdictional issues, including the principle of universality, which the court found were not reached directly in this case. We discuss extraterritorial and jurisdictional aspects of this case in our post here.^[16]

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[1] Adam Tanner, US Can Bar Child‑Sex Tourism Abroad: US Court, Reuters [hereinafter Reuters], Jan. 26, 2006.
[2] The underlying law on which this case is based is the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (“PROTECT Act”), Pub. L. No. 108-21, 117 Stat. 650 (2003).
[3] Unites States v. Clark [hereinafter Clark], No. 04-30249 (9th Cir. Jan. 25, 2006).
[4] Clark supra note 3 at 1023.
[5] Clark supra note 3 at 1029.
[6] U.S. Const., Art. I, § 8, cl. 3.
[7] Clark supra note 3 at 1016, citing United States v. Morrison, 529 U.S. 598, 607 (2000). Id. at 1024.
[8] Clark supra note 3 at 1005, alterations mine.
[9] Clark supra note 3 at 1026.
[10] Clark supra note 3 at 1026. Footnote 18 contains the argument that “foreign commerce” includes both goods and services.
[11] United States v. Bredimus, 352 F.3d 200 (5th Cir. 2003). See also Clark supra note 2 at 1003-1004. See also Bob Egelko, Law Upheld on Child Sex Abroad, San Francisco Chronicle, Jan. 26, 2006.
[12] Clark supra note 3 at 1029.
[13] Clark supra note 3 at 1030.
[14] United States v. Clark, 315 F. Supp. 2d 1127 (W.D. Wash. 2004). A synopsis of this case is available here.
[15] Reuters supra note 1. See also Clark supra note 3 at 1006.
[16] See also Clark supra note 3 at ftnt. 10: “Although the district court found that extraterritorial jurisdiction was proper under both the nationality principle and universality principle, Clark, 315 F. Supp. 2d at 1131, we decline to address whether the universality principle also applies in Clark’s case because extraterritorial application of a criminal law need be justified by only one of the five principles of extraterritorial authority. See Chua Han Mow v. United States, 730 F.2d 1308, 1312 (9th Cir. 1984).”