The Dynamic Incorporation of Foreign Law and the Constitutional Regulation of Federal Lawmaking

100 Pages Posted: 29 Jan 2015 Last revised: 25 Aug 2015

Paul J. Larkin Jr.

The Heritage Foundation

Date Written: February 18, 2015

Abstract

Although most federal criminal legislation is designed to regulate the domestic affairs of people in this nation, Congress has increasingly adopted laws that apply extraterritorially, such as the Foreign Corrupt Practices Act, which makes it a crime to commit bribery overseas. In those cases, Congress has defined the conduct that federal law prohibits, and the question for the jury is simply whether a defendant engaged in prohibited conduct with the necessary mental state. Yet, Congress has also created a second category of extraterritorial criminal offenses. They make it an offense, punishable in the federal courts in the United States, to violate a law of a foreign country. The Lacey Act is one such law. Congress enacted the statute early in the twentieth century to help the states prevent the poaching of wild game by making it a federal crime to take game illegally and abscond with it from one state to another. Late in the twentieth century, however, Congress expanded the law in two remarkable ways. The Lacey Act now makes it a crime to import fauna or flora, natural or processed, if it has been taken in violation of a foreign nation’s laws. Those expansions of the reach of the act have created federal constitutional problems that Congress did not anticipate. The Article I Bicameralism and Presentment Clauses define the federal lawmaking process, and it demands that the Congress and the President cooperate in order to create a federal law. The Fifth Amendment Due Process Clause requires the federal government to act pursuant to “the law of the land,” which imposes the rule of law government officers. The Article II Appointments Clause requires that any person entrusted with authority to make or enforce federal law be appointed by the President or someone else specifically identified in the clause. Foreign officials, however, hold office under the authority of their own laws, not those of the United States. Accordingly, by granting foreign officials the authority to define elements of a federal offense, the Lacey Act violates the constitution’s federal lawmaking process.

Suggested Citation

Larkin, Paul J., The Dynamic Incorporation of Foreign Law and the Constitutional Regulation of Federal Lawmaking (February 18, 2015). Harvard Journal of Law and Public Policy, Vol. 38, No. 1, 2015. Available at SSRN: https://ssrn.com/abstract=2556440

Paul James Larkin Jr. (Contact Author)

The Heritage Foundation ( email )

214 Massachusetts Ave NE
Washington, DC 20002-4999
United States
202-608-6190 (Phone)

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