Foreign Commerce Clause

• Author: International Law Group
• Pages: 8-9

Page 8

Cambodian police arrested Michael Lewis Clark (defendant), a U.S. citizen, while he was engaging in sex with two young boys. Street children had earlier reported that Clark was frequently molesting young boys, and the organization Action Pour Les Enfants had notified the Cambodian police. The Cambodian Government later granted the U.S.'s extradition request.

The statute in question is ß 18 U.S.C. ß 2423(c), a part of 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). Section (c) provides in part that: "(c) Engaging in illicit sexual conduct in foreign places. Any United States citizen or alien admitted for permanent residence who travels in foreign commerce, and engages in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both." A federal grand jury indicted defendant under the Act.

The precise issue in this case is whether Congress exceeded its authority under Article I, Section 8, Clause [3] "to regulate Commerce with foreign Nations" when it made it a felony for U.S. citizens to engage in illegal commercial sex with a minor outside U.S. territory. Reserving his right to appeal on legal issues, defendant pled guilty to two counts under 18 U.S.C. ß 2423(c) and (e).

The U.S. Court of Appeals for the Ninth Circuit upholds the conviction, concluding that Congress' enactment of the PROTECT Act lay within the bounds of its constitutional authority.

First, the Court analyzes ß 2423(c) in light of international law. " ... The legal presumption that Congress ordinarily intends federal statutes to have only domestic application ... is easily overcome in Clark's case because the text of ß 2423(c) is explicit as to its application outside the United States.

See 18 U.S.C. ß 2423(c) (titled 'Engaging in illicit sexual conduct in foreign places' and reaching people 'who travel[ ] in foreign commerce') ... By its terms, the provision is exclusively targeted at extraterritorial conduct."

"... [W]e [next] ask whether the exercise of extraterritorial jurisdiction in this case comports with principles of international law. See United States v. Vasquez-Velasco, 15 F.3d 833, 839 (9th Cir. 1994) ('In determining whether a statute applies extraterritorially, we also presume that Congress does not intend to violate principles of international law.') ... Of the five general principles...