Beyond the Article I Horizon: Congress's Enumerated Powers and Universal Jurisdiction Over Drug Crimes

63 Pages Posted: 17 Apr 2008 Last revised: 3 Jul 2012

See all articles by Eugene Kontorovich

Eugene Kontorovich

George Mason University - Antonin Scalia Law School


This paper explores the Article I limits faced by Congress in exercising universal jurisdiction (UJ) - that is, regulating extraterritorial conduct by foreigners with no affect on or connection the U.S. While UJ is becoming increasingly popular in Europe for the punishment of human rights offenses, Congress's primary use of UJ today is under the Maritime Drug Law Enforcement Act. This obscure law allows the U.S. to punish for violating U.S. drug laws foreign defendants on foreign vessels in international waters. The MDLEA's UJ provisions raise fundamental questions about the source and extent of Congress's constitutional power to regulate purely foreign conduct.

Courts and commentators have suggested that the Define and Punish clause of the Constitution authorizes the MDLEA. This paper is the second in a two-part project examining the limits of Congress's power under the Define and Punish Clause and related issues - the first academic work examining the nature and scope of these powers. The companion Article, The Define and Punish Clause and Universal Jurisdiction: Recovering the Lost Limits, demonstrates that the Constitution's Define and Punish clause only allows for UJ over - at most - crimes that international law has established as universally cognizable. The present Article applies that understanding to the MDLEA. It shows that the MDLEA exceeds the limitations of the Define and Punish clause described in the companion article, as well as exceeding the limits of the clause in some additional ways. It also considers other potential Art. I bases for the statute.

The issue is of significant practical and theoretical importance. From a criminal law perspective, hundreds if not thousands are in jail under this statute, which lies at best at the horizon of Congress's Art. I powers. Furthermore, exploring the potential Art. I basis for the MDLEA exposes several important and novel questions of constitutional and international law in addition to the issue of UJ under Clause 10 explored in the companion Article. Can the foreign commerce clause be used to regulate conduct with no U.S. nexus? Can a law be considered an exercise of Congress's treaty power if passed a decade before the relevant treaty is ratified; that is, can a treaty retroactively validate a statute? Do Senate declarations made when ratifying count as part of the treaty for the purpose of Congress's lawmaking powers? Can Congress define a crime as an offense against international law when international law does not seem to treat it as such? To what extent can Congress assert UJ over acts committed not just in international waters but in foreign territory? Thus the analysis of the MDLEA offers a tour of novel and unresolved issues in Art. I's foreign relations provisions.

Keywords: universal jurisdiction, extraterritorial jurisdiction, and Define and Punish Clause, Maritime Drug Law Enforcement Act

JEL Classification: K19, K33, K42

Suggested Citation

Kontorovich, Eugene, Beyond the Article I Horizon: Congress's Enumerated Powers and Universal Jurisdiction Over Drug Crimes. Minnesota Law Review, Vol. 93, Winter 2009, Northwestern Public Law Research Paper No. 08-12, Available at SSRN:

Eugene Kontorovich (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8151 (Phone)

HOME PAGE: http://

Do you have negative results from your research you’d like to share?

Paper statistics

Abstract Views
PlumX Metrics