When the Commerce Clause Goes International: A Proposed Legal Framework for the Foreign Commerce Clause
70 Pages Posted: 9 Jan 2013
Date Written: January 9, 2013
Congress is allowed “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The scope of Congress’s power to regulate commerce “among the several States” (the “Interstate Commerce Clause”) has long been debated. In the modern world of global interaction, Congress’s power to regulate commerce “with foreign Nations” (the “Foreign Commerce Clause”) may soon take center-stage. The U.S. Supreme Court, however, has not yet articulated a legal framework for the Foreign Commerce Clause which has lead to circuit splits and confusion as to the scope of this power.
This legal issue has recently surfaced in the context of the PROTECT Act, a federal statute with extraterritorial application which prohibits U.S. citizens from molesting children abroad. Does the Foreign Commerce Clause give Congress plenary power to make it a crime for a U.S. citizen to engage in child sex trafficking in Cambodia? How about robbing a bank in Spain? What about for far less offensive conduct, such as littering in France? Indeed, can this be taken to the extreme so that under the foreign commerce power Congress can prohibit a U.S. citizen from eating pasta in Italy? How about conduct by non-U.S citizens in other countries? And, what does international law have to say about this? All of these questions raise one important issue: What connection, if any, must the conduct have to the United States in order for it to fall within the scope of the Foreign Commerce Clause? Lower courts are in disarray in how to answer this question.
The purpose of this article is to set forth a practical and comprehensive legal framework for the Foreign Commerce Clause that could be applied to these different situations and to the myriad of other federal laws with extraterritorial application. (Appendix A to the Article sets forth over three hundred federal laws that could be implicated.) This is the first and only article to contemplate a distinct legal framework considering international legal principles and the history, jurisprudence, and text of the Foreign Commerce Clause.
Keywords: Foreign Commerce Clause, Protect Act, commerce power
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