Sex-Traterritorial Jurisdiction and the Exercise of Federal International Police Power after United States v. Clark, 435 F.3d 1100 (9th Cir. 2006)

Abstract:     
This short piece investigates the scope of Congress' power under the Foreign Commerce Clause, using as a lens the Ninth Circuit's analysis of § 2423(c) of the PROTECT Act in United States v. Clark, 435 F.3d 1100 (9th Cir. 2006). Two factors are in play. First, the Supreme Court has interpreted Congress' authority over foreign commerce as sweeping and significantly greater than that over interstate commerce. Second, principles of international law and cooperative treaties give nation-states substantial extraterritorial jurisdiction over both their citizens' illicit conduct perpetrated beyond their borders and the conduct of foreign citizens' committed against their national interests abroad. Combining these two factors, this piece concludes that it is possible to typify the United States' extraterritorial activity in international affairs as a kind of global quasi-federalism. By analogy to a domestic state, the United States, as a nation-state, retains a type of general, international police power, rooted firmly and historically in the enumerated powers granted by the Constitution and augmented by modern principles of international law.

Keywords: United States v. Clark, 435 F.3d 1100, extraterritorial, jurisdiction, PROTECT Act, foreign commerce, international law, federalism, child sex tourism, § 2423(c)

Working Paper Series