United States v. Michael Lewis Clark

Furthermore, we hold that a ed on the average. grounds alternative that a trans- that there is a lack of suffi- communication that a mission consumer has insufficient regarding a con- cient credit information generate credit information to a score is report a credit within the mean- sumer is report, not a credit or that Hartford Fire’s addition, In ing of FCRA. we hold that adverse action notices were sufficient. action notices must communicate adverse sum, we reverse the grant district court’s that an adverse action to the consumer summary judgment respect to all taken, report was based on a consumer defendants in Reynolds, both Edo and re- action, specify the describe the effect of Reynolds’ request verse its denial of consumer, identify and upon the action complaint amend his to add Hartford party parties taking the action. Midwest, PCIC and Hartford and remand respect companies With to which a proceed- to the district court for further FCRA, may group be liable under we hold ings opinion.18 with this consistent company that a that makes the rate-set- REVERSED and REMANDED. decision, ting company issues the policy, company insurance at a

denies insurance more favorable rate liable,

may jointly severally held companies may provide

and that such

single adverse action notice to consumers

containing requisite all of the information.

Finally, adopt we the Third Circuit’s defi- nition “willfully”: disregard Reckless America, UNITED STATES of sufficient. Plaintiff-Appellee, consequence rulings, As a of these we grant- hold that the district court erred in CLARK, Michael Lewis Defendant- ing summary judgment to Hartford Fire Appellant. on charges the basis that increased for policy insurance an initial do not consti- No. 04-30249. actions, denying Rey-

tute adverse and in of Appeals, request nold’s to amend leave his com- Ninth Circuit. plaint to add Hartford PCIC Hartford Likewise, Midwest for that same reason. Argued and Submitted June 2005. we hold that court the district erred Filed Jan. granting summary judgment GEICO Indemnity on the basis that the actions it

took were not granting adverse and sum-

mary Fire, judgment to Hartford Govern- Employees,

ment and GEICO General on only basis that the issuer insurance Next,

can be liable under FCRA. we hold summary judgment may grant- not be 18. We appeal, plaintiffs mary judgment note that on seek to a non-movant when there cross-motion,” grant summary judgment reversal of the has been a motion but no defendants, request Steppen and do not such a decline to do so here. Kassbaum v. Prod., Inc., judgment (9th Although on their own behalf. "a Cir. wolf sponte grant court has the sua sum- 2000). Assistant Federal Filipovic,

Michael Defender, Lai, Re- W.W. Public Vicki Writing Attorney, Federal search and Office, Seattle, WA, for Public Defender’s defendant-appellant. Attorney, McKay, States John Brunner, Lulejian, John J. Susan Helen J. Dohrmann, At- B. Assistant United Seattle, WA, plaintiff-ap- for the torneys, pellee. provide starting

child a clear point labor] concerning international action elimination of exploita- commercial sexual HUG, FERGUSON, Before tion of children.” Id. McKEOWN, Judges. Circuit Clause, Congress Under the Commerce power regulate

has Commerce “[t]o Nations, among the several States, McKEOWN, and with the Indian Judge. Tribes.” This Circuit seemingly simple grant authority has appeal we are confronted with a dispute, been the source of much although question impression regarding first very controversy little of the surrounds the scope Congress’s power under the For- eign “foreign Commerce Clause.1 At issue is prong Nations” of the clause. Congress whether exceeded its authority involving Cases Foreign reach of the regulate “to Commerce with Na- congressional Commerce Clause vis-a-vis Const, tions,” I, U.S. art. cl. in authority our citizens’ conduct enacting a statute that it felony makes abroad are few and far between. U.S. citizen who in “foreign travels Bredimus, United States v. commerce,” foreign country, i.e. to a (5th Cir.2003) (affirming conviction engage then in an illegal commercial sex 2423(b), under 18 U.S.C. which reaches act with a minor. 18 U.S.C. any person who travels in com- Congress We hold that acted within the merce “for purpose of’ engaging authority. bounds its constitutional conduct).2 illicit sexual It is not so much Congressional invocation of Foreign the contours of the Foreign Com- Commerce Clause surprise comes as no clear, crystal Clause are but rather light of growing concern about U.S. citi- scope yet subjected their has to be traveling zens engage abroad who in sex judicial scrutiny. acts with children. The United States re- quelling iterated its commitment to long Court has adhered to by signing abuse abroad The Yokohama a framework for domestic commerce com- Global Commitment available at prised general of “three categories reg- http://www.unicef.org/events/ yokoha- ulation in which is authorized to (last visited Dec. ma/outcome.html engage under power,” its commerce Gon- 2005), which was concluded at the Second — Raich, -, -, zales v. U.S. Congress Against World the Commercial 2195, 2205, (2005):(1) 162 L.Ed.2d 1 Exploitation Sexual of Children. The the use of the channels of interstate com- Commitment welcomes “new laws to crimi- (2) merce; the instrumentalities of inter- prostitution], nalize including provi- [child state persons or things sions with extra-territorial effect.” Id. (3) commerce; interstate activities Notably, in an explanatory statement at- that substantially affect interstate Commitment, tached to the the United merce. See also Lopez, United States v. States emphasized that it “believes that 549, 558-59, the Optional prostitu- Protocol child [on (1995); Raich, L.Ed.2d 626 tion] [the International 125 S.Ct. at Organ- Labour (Scalia, J., ization’s Convention No. 182 regarding concurring) (noting that IV(A), 1. We commend both counsel for their pri- excel- As discussed in the cases arise marily Foreign comprehensive under the dormant briefing lent and on this novel interplay Clause and invoke the between state issue. authority. and federal by the expressly have me- conduct reached statute thirty years, “our cases for over chanically performed recited that the Commerce includes commercial sex acts regulation of congressional permits Clause citizen on soil. This conduct devel- categories”). criminal, This framework three might be immoral and but it is unique federalism response to the oped Where, appeal, as in this also commercial. congressional authori- that define concerns in foreign the defendant travels commerce Lopez, context. ty in the interstate foreign country pay to a and offers to (“[T]he scope acts, engage child to sex his conduct ‘must be the interstate falls under the umbrella of broad system light in the of our dual considered consequently con- commerce and within ....”’) NLRB (quoting government gressional 1, Laughlin Corp., Steel Jones & Clause. (1937)). No 81 L.Ed. 893 framework exists for analogous Background commerce. Clark, seventy-one year a Michael Lewis spheres the two distinguishing Further veteran, military pri- old U.S. citizen and Founders intended “is evidence that in from un- marily resided Cambodia commerce scope typically til his extradition 2003. He in- greater” compared ... to be trips took annual back to the United Line, Japan Ltd. v. terstate commerce. estate, and he also maintained real States County Angeles, Los accounts, accounts, a bank investment (1979). 1813, 60 L.Ed.2d 336 license, a mailing driver’s address given latitude to expansive This family a country. Following this visit given commerce is sensible over May left and flew to Clark Seattle regulate inter- “Congress’ power that to Thailand, Malay- Japan, Cambodia via may be restricted state commerce traveling sia. He was on a business visa federalism and state considerations of that he renewed on an annual basis. never sovereignty,” whereas has “[i]t Cambodia, came to the While Clark Congress’ power to suggested been Enfants, of Action Pour Les attention could so regulate foreign commerce whose mis- non-governmental organization n. limited.” Id. boys to minor who have been sion is rescue cate- Adapting the interstate commerce sexually by non-Cambodians. molested con- gories specific suspicion when street came under Clark an task. texts is not insurmountable reported to social workers he was kids Cummings, boys regular on a basis. molesting young (9th Cir.2002) (analyzing 1049 n. him reported in turn organization Pa- constitutionality of the International Police. In late the Cambodian National 1204(a), Act, Kidnaping 18 U.S.C. rental police arrested June the Cambodian Lopez’s three-category approach). discovering him a Phnom Clark after times, however, undertaking At this can guesthouse engaging sex acts Penh jamming square peg into a feel like ten and boys approximately who were two slavishly marching round hole. Instead charged with years old. He was thirteen grafting the interstate path down the govern- debauchery. The United commerce framework onto from the Cam- permission ment received merce, global, step back and take jurisdiction to take government bodian approach to the circum- commonsense presented here: The illicit sexual over Clark. stance (c) Engaging

U.S. officials—assisted the Cambodi- in illicit sexual conduct in an National Police and the Australian Fed- foreign places. Any United States citi- investigation eral an Police—conducted zen or permanent alien admitted for res- that led to Clark’s confession and extradi- idence who in foreign travels part tion to the States. As engages illicit sexual conduct younger boy investigation, the told author- person with another shall be fined under engaged ities that he had in sex acts with imprisoned title or not more than 30 money buy Clark because he needed years, or both. food for his brother and sister. The older This provision proposed was first as part boy stated that Clark had hired him in the of the Sex Tourism Improve- Prohibition acts, past perform sex on one occasion ment Act of H.R.Rep. No. 107-525 paying young boys five dollars. Other (2002). The “Constitutional Authority

whom had reported Clark molested Report Statement” in accompanying dollars, they paid were about two and this Act expressly identified the Commerce Clark routinely paid stated he this Clause, I, article section 8 of the Constitu- amount. acknowledged Clark that he had tion, as the legislation. pedophile been a since at least Id. at 5. The purpose of the bill was “to “maybe longer,” and had been involved in make it a crime for a U.S. citizen to travel activity sexual approximately country to another engage in illicit began traveling children since he in 1996. sexual conduct with minors.” pro- Id. The Upon States, his return to the United enacted, however, vision was not until it provisions Clark was indicted under the of was added to the PROTECT Act the fol- newly-enacted Prosecutorial Remedies lowing year. H.R.Rep. 108-66, See No. and Other Tools to End the Exploitation of (2003) (Conf.Rep.), reprinted as in 2003 (“PROTECT Today Children Act of 2003 U.S.C.C.A.N. 683. This section was incor- Act”), 108-21, Pub.L. No. 117 Stat. 650 porated verbatim into the legislation (2003).3 pled guilty He to two counts un- Report but the on the PROTECT Act does 2423(c) (e)4 § der 18 U.S.C. but re- not prior include the reference to constitu- right appeal served the pre-trial his authority. tional constitutional, motion to dismiss based on Before the Act PROTECT became law jurisdictional, and statutory construction 2423(b) 2003, § in required govern- grounds. Clark, See United States v. 315 ment to prove that the defendant “trav- (order (W.D.Wash.2004) F.Supp.2d 1127 elled] or conspire[d] dismiss). ” denying Clark’s motion to so, to do purpose for the engaging in appeal, On challenge Clark’s specified centers on sexual person conduct with a un- § the constitutionality of Adopted eighteen years der age. Violent Crime in 2003 part Act, as of the PROTECT Control and Law Enforcement Act of 2423(c) § provides as 103-322,108 follows: Pub.L. Stat. Sec. 160001 Although reportedly Clark per- was the first http://www.ice.gov/graphics/ charged son under the PROTECTAct's extra- (last visited news/factsheets/statistics.htm Harden, provisions, territorial see Blaine Vet- 29, 2005). Dec. Charges; eran Indicted on Sex Man Is First Charged Under Protect Law’s Provision on (e) provides 4. Subsection attempt that an Tourism, 25, 2003), Wash. (Sept. Post at A5 conspiracy § pun- to violate shall be Immigration the U.S. and Customs Enforce- completed ishable in the same manner as a "Operation ment's reports Predator” violation. thirteen July arrests had been made as of words, they In other (1994) (codified nent to the crime. amended at 18 U.S.C. as added). 2423(b)) The PRO- (emphasis § sex acts. are non-commercial single section with replaced Act TECT contrast, prong of the the second (b) through (g), with new subsections “any act definition covers commercial sex (b) substantively remaining new subsection (as defined in section U.S.C. 1591[18 (b). subsection as the former the same 1591]) person years with a under 18 (c) entirely new section is an Subsection 2423(f)(2). “Commer- age.” 18 U.S.C. of’ purpose the “for which deletes act,” turn, “any sex cial sex is defined accom- report The conference language.5 act, anything of value on account of which Act explains panying the PROTECT by any given person.” to or received requirement the intent Congress removed 1591(c)(1). acknowledges Clark U.S.C. government so that “the from qualifies conduct as illicit sexual his defen- prove have to that the would conduct, plea agree- admitted in his he in illicit sexual conduct engaged dant pay each of the ment that he “intended country.” in a a minor while boys such boys expected and each of the 51; also see H.R.Rep. No. 108-66 sexual en- (same exchange for the payment 107-525, 2at state- H.R.Rep. No. bill). Accordingly, it is this second Conse- counter.” report for failed 2002 ment the two apply, prong act” that is at issue quently, “commercial sex the defen- key are whether determinations appeal. Clark’s commerce” and “traveled] dant illicit conduct.”

“engages Analysis “illicit sexual con- defines The statute that he traveled dispute does not Clark First, ways: the definition duct” two commerce,” dispute nor does he “foreign (as in section “a sexual act defined includes engaged in illicit commercial sexual that he 2246]) person § awith [18 2246 U.S.C. to challenge he raises is conduct. The age that would be years under 18 of this congressional U.S.C. chapter 109A[18 violation In to his Commerce conduct. addition act occurred seq.] §§ 2241 if the sexual et challenge, attacks his convic- Clause Clark ju- and territorial special in the maritime law, statutory con- on tion international 18 U.S.C. risdiction of the United States.” struction, grounds.6 Due Process 2423(f)(1). 109A, turn, crimi- Chapter § that courts principle recognition in- of sexual abuse nalizes various forms “strong duty to avoid constitutional have a aggravated sexual cluding, example, in order that need not be resolved issues means, force, threat, other 18 abuse or parties rights to determine the 2241(a)-(b); abuse § sexual U.S.C. consideration,” County under the case person that other threatening placing Allen, 442 County U.S. v. Court Ulster 2242; fear, and sexual abuse 18 U.S.C. 2213, 140, 154, 60 L.Ed.2d 777 ward, § 2243. a minor or 18 U.S.C. (1979), analysis with Clark’s begin we our charac- violations share the common These claims. compo- non-constitutional that there no economic teristic is (d) act case provide in a commercial sex persons who the defendant covers 5. Subsection person was 18 reasonably that the believed ancillary to facilitate travel “for services 2423(d)-(g). acts; years old. 18 U.S.C. engaging illegal subsec- purpose of” (e) attempt conspiracy; sub- covers tion (f) to his initially the definition of issues related cross-references 6. Clark raised section statutes; aspect has since withdrawn “illegal with other sentence but sexual conduct” appeal. of his (g) provides a defense where and subsection 1106 Comports principles international law. 2423(C) See The With I. Section Vasquez-Velasco, v. 15 United States F.3d Principles Law Of International (9th Cir.1994) (“In determining 839 argument start with Clark’s We applies extraterritorial- whether statute application that extraterritorial ly, presume Congress that we also does principles violates of internation principles not intend to violate of interna- review, novo United States al law.7 On de law.”) (citing tional McCulloch v. Sociedad Felix-Gutierrez,

v. 940 F.2d Honduras, Nacional de Marineros de 372 (9th Cir.1991), hold that extraterritorial 10, 21-22, 671, 9 L.Ed.2d 547 proper based on the national application is Neü, (1963)); also v. see (9th Cir.2002). ity principle. F.3d Of the five general principles permit extraterrito- legal presumption or- jurisdiction,8 nationality rial criminal dinarily federal statutes to have intends principle clearly applies most to Clark’s application, domestic see Small v. nationality “permits case. The principle States, 385, -, 125 country apply its statutes to extraterri- (2005), S.Ct. 161 L.Ed.2d 651 is torial acts of its nationals.” United own easily overcome Clark’s case because Hill, (9th 279 F.3d Cir. explicit the text of is its 2002). solely Jurisdiction based on the application outside United States. See defendant’s status as a U.S. citizen is firm- 2423(c) (titled “Engaging U.S.C. ly by our precedent. established foreign places” Walczak, illicit conduct in United States v. 783 F.2d (9th Cir.1986) jurisdiction (holding reaching people “who travel[] over a U.S. citizen who violated a federal commerce”); see also Sale v. Haitian Ctrs. proper statute while in was Canada Council, Inc., 155, 176, nationality principle); McKeel v. Is- (1993) (explaining 125 L.Ed.2d 128 Iran, Repub. lamic there must “affirmative evidence of (9th Cir.1983) (noting that nationality prin- application”). By intended extraterritorial ciple permits punish wrongful states to terms, provision exclusively its tar- citizens); conduct of its United States v. geted at extraterritorial conduct. (9th Cir.1976) King, F.2d issue, Having addressed this threshold (commenting nationality principle that we ask whether the exercise of extraterri- defendants). apply would to U.S. citizen jurisdiction torial in comports this case citizenship Clark’s U.S. is uncontested.9 (9th Cir.1973) challenge (holding 7.Clark's is distinct from the F.2d 750 more that a party challenges common scenario where a proscribing government prop- statute theft of only the extraterritorial reach of a statute erty applied extraterritorially, and that contesting congressional authority without certainly represents "law an exercise See, e.g., enact the statute. v. Small United right Government of its to defend itself from States, 385, -, frauds”). and obstructions (2005) (holding L.Ed.2d 161 651 that territorial, jurisdictional 8. phrase any The five bases are "convicted in court” in a national, universal, criminalizing possession by protective, statute passive firearm and felon, § 922(g)(1), (Third) 18 U.S.C. convicted does personality. See Restatement of For- convictions); apply not to extraterritorial eign Relations Law of United States 402 Am., Timberlane Lumber Co. v. Bank Hill, (1987); United States v. F.3d (9th Cir.1976) (discussing F.2d (9th Cir.2002) (listing principles). the five the extraterritorial reach of U.S. antitrust citizen, countries), Because Clark is U.S. we do not super- laws to activities in reach the issue whether reliance on the na- McGlinchy seded statute as stated in Co., tionality principle proper Shell Chemical 813 n. is also when (9th Cir.1988); Cotten, permanent United States v. admitted for residence” "alien[s] application of declined to dismiss the indictment on this Accordingly, extraterritorial proper conduct is to Clark’s ground, explaining attempt that “Clark nationality principle.10 based on the ing to ... add elements to the crime that Clark, simply in do not exist the statute.” the statute also seeks invalidate Clark F.Supp.2d at agree. 1130. We De view, because, appli- in extraterritorial his spite Clark’s efforts to distance himself unreasonable. See Restatement cation is (Third) statute, Relations Law of the from the we are unable to resolve (1987); Vasquez-Ve- States United appeal by excising this Clark’s conduct lasco, (holding that ex- 15 F.3d at 840-41 from the reach Jones v. Cf. statute to application traterritorial U.S. States, 848, 850-51, United U.S. drug traf- violent crimes associated (2000) (avoid 1904, 146 L.Ed.2d 902 under international ficking was reasonable ing challenge by constitutional construing law). provides support no The record text to statute’s hold certain owner- precedent cites no argument. Clark occupied do qualify prop residences not application was which extraterritorial commerce). in” erty “used in a similar situation. found unreasonable consented to the United States Cambodia plain The statute is on its face: taking jurisdiction nothing suggests “[a]ny Section reaches objected any way that Cambodia citizen or alien admitted for perma and trial under Clark’s extradition nent residence who travels in com law. himself stated to a official Clark merce, engages illicit sexual that he “wanted to return to Cambodia person.” conduct with another It does not people because he saw the United States” require that the conduct occur while trav prison “and was dying the Cambodian eling commerce. Clark’s very stayed much that if in that [he] afraid case, lapse in time his most between prison, Having would not survive.” [he] recent transit between prosecution been saved from immediate and his arrest was than Cambodia less Cambodia, it is somewhat ironic that he plausible reading no two months. We see challenges now the law a United States appli the statute would exclude its court.

cation to conduct because of this Clark’s II. is un gap.11 limited Because the statute Falls Clark’s Conduct Within Scope 2423(C) §Of ambiguous and Clark’s conduct falls squarely persons within the class of whose posits can

Clark be saved conduct intended to criminalize scrutiny by interpret from constitutional statute, under this we do not invoke the it to illicit ing require Jones, 858, lenity. rule of 529 U.S. at 120 place conduct take while the defendant is literally concerning 1904 the am- traveling. (“ambiguity still The district court S.Ct. 2423(c). prosecuted justified by only princi- § are 18 need be one of the five under TJ.S.C. See Chua authority. ples of extraterritorial States, Han Mow v. United 730 F.2d Although 10. the district court found that ex- (9th 1984). 1312 Cir. jurisdiction proper was traterritorial nationality principle universality both the longer gap Whether a between the travel Clark, principle, F.Supp.2d we trigger act could con- and the commercial sex universality decline to address whether is an issue we stitutional or other concerns principle applies also in Clark's case because day. leave for another application a extraterritorial of criminal law process.” Sec’y Agrie, should resolved standards of due statutes bit of criminal of (citation omitted). Co., Roig Refining v. Cent. lenity”) of favor (1950). 616, 70 94 L.Ed. 381 S.Ct. history supports also legislative States, In Blackmer v. adopt. that we The confer- United plain reading (1932), Congress elimi- 76 L.Ed. 375 explains report ence explained that “the that the extra- requirement so nated the intent only prove application have to territorial of U.S. law to its would government Fifth engaged in illicit sexual con- citizens abroad did not violate the the defendant in foreign minor while a eoum Amendment. The Court declared that de- duct with a France, spite moving at 51. From a his residence to try.” H.R.Rep. No. 108-66 it seems non-sensical U.S.-citizen defendant “continued to owe practical perspective, allegiance By to the virtue scope to limit of United States. for 2423(c) obligations citizenship, of the unlikely to the scenario where him, authority retained its over perpetrator while the the abuse occurs applicable he was bound its laws made literally reading en This would route.. him in foreign country.” a Id. at by severely limiting eviscerate longstanding principle S.Ct. 252. This people its use to those who commit citizenship satisfy alone is sufficient to physically the offense while onboard an Due still Process concerns has force. Cit- cruise, flight, international or other mode Blackmer, ing recently affirmed that transportation. adopt decline to We is no that the “[t]here doubt United States reading Clark’s strained of the statute. jurisdiction may exercise over American III. No DUE abroad, living regardless nationals VIOLATIOn PROCESS where the crime is committed.” United extra question The next is whether Corey, States v. 232 F.3d 1179 n. 9 application territorial violates (9th Cir.2000). the Due Process Clause of the Fifth Amendment is an insuffi because there Clark offers no that calls into cient Instead, nexus between Clark’s conduct and question principle. he relies that, nationals, the United States. hold based on We on cases that involved citizenship, application Clark’s U.S. of which meant that the courts had no choice beyond nationality to his conduct is but to look extra-territorial to establish “arbitrary fundamentally neither un [n]or the defendants’ ties with the United Davis, fair.” F.2d States. United States v. Klimavi- (9th Cir.1990).12 (9th cius-Viloria, Cir. 1998) (defendant and crew “were all Co- comply Clark is correct that to with the Davis, (“Davis lumbians”); 905 F.2d at 247 Due Process of the Fifth Amend- Clause States.”). is not a citizen of the United ment, application extraterritorial of federal citizen, criminal requires government statutes a Clark is U.S. bond that “im- nexus plies duty allegiance part demonstrate a sufficient between on the duty defendant and the United States “so member and a protection on the application part society. such would not be arbi- reciprocal These are Davis, trary fundamentally obligations, being unfair.” compensation one Indeed, States, F.2d at 248-49. “even resort the other.” Luria v. United (1913). 9, 22, 10, defy Commerce the U.S. 34 S.Ct. L.Ed. 101 can[not] Clause 58 Although citizenship military flights 12. Clark's alone is suffi- ment benefits and use of U.S. concerns, satisfy multiple continuing cient to Due Process his U.S. also underscore his investments, ongoing receipt country. of federal retire- ties with this

1109 States, 48, 509, 56, ap- 53 S.Ct. imputed allegiance, this Predicated on (1933). 2423(c) L.Ed. 1025 We are further mind- § extraterri- of to Clark’s plication ful caution that of the Court’s violate the Due conduct does not torial respect for the decisions of a coordi- “[d]ue that Having concluded Process Clause.13 nate branch of Government demands that arguments other resolve none of Clark’s congressional we invalidate a enactment turn to Clark’s Commerce appeal, we only upon plain showing Congress that challenge. Clause constitutional has exceeded its bounds.” Congress’s Foreign Morrison, IV. Commerce 598, United States v. 529 U.S. Regulat- Extends To Clause Power 607, 1740, 146 L.Ed.2d 658 S.Ct. ing (2000). Abroad Commercial Sex Acts plain showing No has been made In light sweeping here. of considering Congress whether foreign we con- powers over Foreign exceeded its Congress acted within its consti- clude that 2423(c), § enacting Clause Commerce criminalizing tutional commer- bounds analysis in fundamental ground we our by cial sex acts committed U.S. citizens that is an essential attribute principle “[i]t in foreign who travel abroad commerce.14 over com [Congress’s power of outset, highlight we that plenary.” it is exclusive and At merce] 2423(c) III. v. types two of “illicit Bd. Trustees Univ. United contemplates of necessary vagueness implied powers as are raises notice and and such Clark also 13. proper carry into effect the enumerat- challenges, neither of which withstands scru- 2423(c) categorically only April powers, true in re- tiny. was enacted in ed Section visiting spect our affairs.” United States v. Clark was the United internal 2003—while 304, Corp., Curtiss-Wright Export did not 299 U.S. States—and the commercial sex act 315-16, 216, (1936). "ignorance Mere S.Ct. 81 L.Ed. 255 occur until June 2003. however, alone, Shevlin-Carpenter Standing the law will not excuse.” this reference does Minn., 57, 68, Co. v. 218 U.S. 30 S.Ct. not establish that (1910). might meaning L.Ed. 930 Clark have been has no is without bounds. Clause law, ignorant congres- but had constitutional- necessarily of the he Nor does it mean ly persuaded sufficient notice. We are not regulation external affairs has no sional argument Clark’s that the statute's "travels in argued The Government has not limits. —nor language gave commerce” him "no legislation is there indication in —that anticipate being reasonable basis” to haled based on an im- enacted into a U.S. court. For criminal statute power. United States plied affairs Cf. vagueness challenge, require Hemandez-Guerrero, survive a v. 147 F.3d person ordinary Cir.1998) that "a reasonable (9th (noting exercising that in immi- intelligence would understand what conduct arena of gration power, which falls into the Lee, prohibits.” affairs, the statute subject "Congress to the is not 1999). (9th A rea- Cir. govern rigid its constraints that person easily Nonetheless, contexts”). sonable would understand given our domestic to cover Clark’s travel to Cambodia plain charge uphold the statute absent unconstitutional, minors and sexual conduct with there. showing United it is Morrison, States v. 529 U.S. (2000), we ac- constitutionality 146 L.Ed.2d 658 Our review knowledge Congress’s plenary authority congressional authori- is focused on may provide pointed also a suffi- ty As over affairs under the Commerce Clause. Government, Curtiss- Supreme Court cient basis for out delega- Wright Export Corp., involving once remarked in a case Belmont, 216; legislative power States v. tion of to the Executive that (1937) gov- 81 L.Ed. broad statement that the federal "[t]he ("[Cjomplete power over international affairs powers except those ernment can exercise no ”). Constitution, government ... specifically in the is in the national enumerated non-commercial and com- deed embodies three subclauses for which conduct”: un- squarely conduct falls prepositional language mercial. Clark’s distinct is used: definition, prong of the der second regulate “To with Na Commerce “any act criminalizes commercial sex which tions, States, among the several years person age.” ... under 18 of with with Indian art. Tribes.” U.S. Const. 2423(f)(2).15 § In view of this 18 U.S.C. I, 8,§ cl. 3. by that posture, factual we abide the rule Among legal scholars there has been “strong duty to avoid consti- courts have a over the considerable debate intrasentence that not be tutional issues need resolved unity disunity, may case be —of —or rights par- order to determine the of the subclauses, considering they the three consideration,” to the case under ties language regulate share the common “[t]o County County, Ulster of Commerce.” Some commentators take holding and limit our Congress’s powers the view that over com 2423(c)’s regulation §to of commercial sex nations and with Indian acts.16 tribes are broader than over interstate See, e.g., commerce. Kenneth M. Case A. The Clause: Structure beer, History Regulate The Power to “Commerce And Nations” in a Global Econo long Marshall observed Chief Justice my and the Future American Democra objects, ago to which the “[t]he cy: Essay, An 56 U. Miami L.Rev. 33- directed, regulating might commerce be (2001); 1 R. Rotunda & J. Nowak, are divided into three distinct classes— (3d Treatise on Law 4.2 § Constitutional nations, states, the several and In- 1999) (“Even ed. during periods when the article, forming dian Tribes. When debating Justices were to signifi whether entirely the convention considered them as cantly restrict congressional power to Georgia, Nation v. Cherokee distinct.” (1831). 1, 18, intrastate activities under 5 Pet. 8 L.Ed. 25 text, Looking single to the clause in- power, there was no serious ad- That the authorities arrested Clark before sented is distinct from chal- money actually changed lenges had hands is in which courts have carved out analysis. immaterial to our Clark does not discrete subset of conduct from a statute dispute boys engage that he hired the in sex based on distinctions deduced from the statu- Raich, promise monetary payment, tory acts with scheme. 125 S.Ct. at require (disagreeing and the statute does not that the vic- with this court's isolation paid by prior tims "separate the defendant to arrest. of a and distinct” class of activities 2423(e) (providing beyond See 18 U.S.C. that an the reach of the federal statute and attempt punisha- concluding to violate shall be instead subdivided class completed ble in the same manner as a part larger regulatory viola- "was an essential tion). fact, scheme”); the second count to which McCoy, United States v. pled guilty (9th Cir.2003) Clark was that he traveled in for- (holding a statute eign attempted commerce and "thereafter applied unconstitutional as to the limited cat- engage in illicit sexual conduct.” egory simple possession intra-state of child pornography that had not traveled in inter- Here, commerce). constitutionality plain 16. We do not decide the state the statute is respect dividing on its face in illicit sexual con- the definition of "illicit distinct, duct prong covered the non-commercial sexual conduct” into two numbered statute, accomplished by prongs. such as sex acts prong ap- We address use of plies force or threat. See 18 U.S.C. to Clark's conduct. This decision to 2423(f) (defining holding "illicit sexual conduct” in limit our sex commercial acts is an restraint, part by expression judicial reference to attempt crimes listed under 18 not an §§ seq.). pre- U.S.C. 2241 et statutory The situation to atomize a cohesive scheme. Clause, vocacy pow- applying Foreign on the federal the of restrictions Commerce areas.”). ers these other for which authority to has not precision been defined with the set Congress Other scholars maintain by forth Lopez and Morrison in the inter- powers under the has coextensive Com- state context. e.g., merce Clause’s subdivisions. See Henkin, Foreign and the Louis Affairs component We start with the that has (1972) (“It generally 70 n. 9 is Constitution judicial dominated consideration of the however, power that the of accepted, Con- Commerce “among Clause: the several gress regards [foreign is same as both the States.” expansive After decades of read- commerce].”); and interstate Saikrishna courts, see, the Katzenbach v. ing Prakash, Three Clauses Our 294, 303-04, McClung, 379 U.S. Presumption and the Intrasentence of (1964) (“[W]here 13 L.Ed.2d 290 Uniformity, 55 Ark. L.Rev. legislators find that the ... a have rational (2003) (“In practice, we have three differ- finding basis for regulatory chosen ent Commerce Clauses when text his- necessary scheme protection the of com- tory ought indicate that we have but merce, end.”), investigation our is at an one.”). Despite long-running lively de- mid-1990s saw a retrenchment Com- scholars, among bate no definitive view jurisprudence beginning Clause among emerges regarding relationship with the of In Lopez. watershed case Nonetheless, the three subclauses. Su- Lopez, Court held that a statute which preme to the con- precedent points possession criminalized of a firearm in a clusion Commerce Clause beyond Congress’s school zone was Com- is different than the Interstate Commerce authority. merce Clause at Line, Japan Clause. See U.S. at holding, S.Ct. 1624. In so the Court (“[T]here 99 S.Ct. 1813 is evidence that the overly expan- stressed its concern that an scope Founders intended the sive view of the Interstate Commerce greater” to be .... effectually Clause “would obliterate commerce.). compared with interstate distinction between what is national and Regardless separate of how the three completely what is local and create a cen- may theory, reality subclauses is government.” tralized Id. at subject they markedly have been NLRB (quoting S.Ct. v. Jones & divergent treatment This courts. Laughlin Corp., Steel approach given not surprising the con 615). The Court reiterated these siderably different interests at stake when years concerns five later Morrison Congress regulates in the arenas. various striking provision down a under the Vio- notably, regardless Most of whether the Against Act: concern lence Women “[T]he subject drugs, gender-motivated matter is Congress might ... use Com- violence, gun possession, prominent completely merce Clause to obliterate the throughout theme runs the interstate com Constitution’s distinction national between sovereignty merce cases: concern for state authority and local seems well founded.” hand, and federalism. On other “[t]he Morrison, principle duality system gov in our announcing shift to a addition ernment does not touch the Congress’s pow- more constrained view of regulation in the commerce, Lopez er over interstate commerce.” Bd. Trustees Univ. Ill., three-category Morrison ossified the 289 U.S. at 53 S.Ct. 509. This provides long applied distinction a crucial touchstone framework that the Court had Lopez, Congress’s power over interstate commerce cases. See to interstate 558-59, 1624; merce, 115 Morr emphasized setting S.Ct. the dissent 514 at U.S. 1740; 609-14, ison, 120 S.Ct. at Congress’s 529 U.S. “outer limits” to (Sealia, Raich, at 2215 spheres see also powers “protect[s] historic Clause thirty- over J., (noting for concurring) sovereignty of state from excessive federal mechanically have recit years, “our cases J., (O’Connor, Id. at 2220 encroachment.” permits con that the Commerce Clause ed dissenting). categories”). regulation of three gressional Although Supreme the Court’s view of earlier, familiar cate these three As noted Clause has the Interstate Commerce (1) of the channels of are the use gories 2205, time,” over id. at Indian “evolved (2) commerce; the instrumental- interstate jurisprudence Commerce Clause has been persons or ities of interstate straight proposition. of a line more (3) commerce; and ac things in interstate Lara, 193, v. 541 U.S. substantially affect interstate tivities that 200, 1628, 124 L.Ed.2d 420 S.Ct. 158 558-59, Lopez, commerce. See U.S. (2004) (“[T]he grants Constitution Con- the interstate com 115 S.Ct. 1624. Within legislate in gress general powers broad arena, guiding Lopez the force of tribes, respect powers to Indian that we hold, took firm and quickly Morrison consistently ‘plenary have described as closely adhered to the lower courts have ... and exclusive’ This Court has tradi- See, e.g., structure. three-prong tionally identified the Indian Commerce Adams, v. Clause, Const., I, Art. cl. U.S. (9th Cir.2003) (reciting catego the three Clause, II, Treaty Art. cl. and Morrison and Lopez ries set out (citations power.”) of that omit- sources a statute criminaliz applying the third to ted). Indeed, Court has por of child ing possession the intrastate “very applica- commented on the different nography). tions” of the Interstate and Indian Com- introduced a past This term the Court in- powers, explaining merce Clause jur- commerce’s new wrinkle interstate jurisprudence commerce terstate “is it held that isprudential fabric when premised understanding on a structural Act a valid ex- Controlled Substances was unique role of the States in our consti- powers under Congress’s ercise of system readily import- tutional that is not Raich, 125 Commerce Clause. See S.Ct. involving ed to cases the Indian Com- at 2201. Raich did not alter the funda- Corp. merce Clause.” Cotton Petroleum rubric, three-prong mental but the Court Mexico, 163, 192, New v. generous Congress’s took a view of more (1989). 1698, 104 L.Ed.2d In S.Ct. power commerce than seen over interstate government’s to the contrast federal rela-

in Lopez and Morrison. Over the dis- states, tionship with the relationship its objections, majority pointed sent’s con- history with Indian tribes “based on “Congress cluded that had rational basis assumption ‘guard- of treaties and the of a concluding leaving home-con- Mancari, ian-ward’ status.” Morton v. marijuana outside federal control sumed 535, 551, 417 U.S. similarly price and would affect market (1974). L.Ed.2d 290 The Commerce Id. at 2207. This “rational conditions.” one of the main textual Clause stands as finding a nexus basis” for between home- Congress’s plenary power grants marijuana and the consumed interstate special relationship between regulation “squarely within put market government federal and Indian tribes. Congress’ power.” commerce Id. ten- 551-52, In this majority’s reading sion broad Id. at 94 S.Ct. 2474. con- text, eign au- “is not open dispute”); has defined the Court Stranahan, thority Indian Commerce 492- Buttfield (1904) (de rigid reference to the cate- 48 L.Ed. Clause without S.Ct. See, e.g., gories Lopez scribing “complete Morrison. 200-207,

Lara, commerce”); over Fire Hartford Congress’s authority to (upholding 764, 1628 California, Ins. Co. v. 509 U.S. 813- adjust sovereignty 14, (1993) in criminal mat- 2891, tribal 113 125 612 S.Ct. L.Ed.2d ters under the Indian Commerce (Scalia, J., Clause dissenting) (“Congress has considering three-category without the I, power Article cl. broad under ‘to framework). Nations,’ foreign Commerce with upheld and this has repeatedly Court its Clause,

As with the Indian Commerce to to power applicable persons make laws Foreign the Commerce Clause has fol beyond or activities our territorial bound evolutionary distinct path. lowed its own aries where United States interests are Born from for largely a desire uniform affected.”). counterpart There is no to governing rules commercial relations with Lopez or foreign Morrison the com countries, foreign the has signal merce realm that would a retreat Foreign read the Commerce Clause as expansive reading from the of Court’s the granting Congress sweeping powers. See fact, Foreign Commerce Clause. In Ill., Bd. 289 Trustees Univ. U.S. of of Supreme Court has never struck down an (“[W]ith respect foreign 509 S.Ct. powers Congress exceeding act its trade[,] people intercourse and of the regulate foreign commerce. single govern act through ment unified adequate national sovereignty state Federalism and con power.”); also & see Rotunda Nowak Congress’s power cerns do not restrict (“The recognized § 4.2 always Court has Line, over see Japan plenary deal power Congress to n. 441 U.S. at S.Ct. touching upon foreign matters relations or uniformity the need for “is no federal less trade.”); Delahunty, Robert J. assessing paramount” the so-called Beyond the Edge: Federalism Water’s congressional “dormant” implications Foreign State Procurement Sanctions and Commerce power Foreign (2001) Affairs, J. Int’l L. Stan. 1813; 449, 99 see also Clause. Id. at S.Ct. (describing origins Foreign of the Ill., 289 Bd. Trustees Univ. U.S. Clause). Commerce was This view laid 59, 53 of a (instrumentality S.Ct. 509 state nearly down when ago two centuries Chief duty to import was not entitled articles has, “[i]t Justice Marshall stated that we respect free because “with inter believe, admitted, universally been trade[,] people the Unit course [the words of Commerce com Clause] through single government States act ed prehend every species of commercial inter adequate pow with unified and national course the United and for between er”). contrast, By In under the dormant eign Ogden, nations.” Gibbons Clause, terstate Commerce “reconciliation (9 Wheat) (1824). 1, 193, 6 L.Ed. 23 and na conflicting claims of state only by some tional is to attained unwavering in

The Court has been read- appraisal the com and accommodation of ing Congress’s power foreign over of the state and national peting demands broadly. Bank- California Shultz, 21, 46, Co. v. ers interests involved.” Southern Pac. Ass’n v. (1974) Sullivan, Ariz. ex 768- (stating S.Ct. 39 L.Ed.2d 812 rel. (1945). Congress’s plenary over for- L.Ed. 1915 element, Beginning with the first predomi- illustrates case Clark’s commerce” un- phrase “travels and the absence interests national nance of spe- equivocally establishes Foreign sovereignty concerns of state cifically invoked the Commerce No jurisprudence. Clause The defendant must therefore Clause. proceed- in the an interest voiced state has commerce at some have moved state indication of nor there an ings trigger the statute. Clark’s point determining the consti- at stake interest case, States to he traveled from Because this case tutionality of Cambodia. the common from is divorced federal/state Interstate Commerce interplay seen “Foreign commerce” has been defined cases, in sparsely find ourselves Clause purposes of Title 18 of broadly to the text thus look charted waters. We U.S.Code, statutory with the definition 2423(c) it has a § to discern whether of ‘foreign com reading, in full: “The term foreign constitutionally tenable nexus title, merce’, in includes com as used commerce. foreign country.” a 18 U.S.C. merce with Admittedly, not § 10. this definition is Regulation Of Com- B. Section 2423(C)’s given rearrange particularly helpful its A Exercise mercial Acts Is Valid Sex being the words defined ment of Congress’s Foreign Of itself. Courts have understand definition Clause Powers wording to have an ably taken the broad Raich, See, e.g., from we re Taking page expansive a reach. (5th ra Montford, the traditional Cir.

view the under statute Raich, 1994) at (discerning “Congress 125 intended basis standard. S.Ct. tional is whether to mean travel to or question pose foreign 2211. The from, relationship to form of contact bears a rational or at least some statute with, state”); under the Londos v. United a (5th Cir.1957) (con States, 240 F.2d Commerce Clause. § 10 cluding commerce under to view the Although important it is fro”). to and likewise passing “means We whole, parsing as a its elements statute a con impose no on which to see basis why fairly relates to illustrates the statute reading “foreign of commerce” strained foreign commerce. The elements that the 2423(c). got plane § Clark on a under 2423(c)’s § government prove must under journeyed to Cam the United States straightfor- prong commercial sex acts are satisfy This act is sufficient to bodia. First, “travel[ ] ward. the defendant must of commerce” element “travels commerce.” 18 U.S.C. § 2423(c). Second, § must the defendant Cambodia, element illicit Once in the second “engage[ any sexual conduct with ] met, id., namely, § “en- in this was also person,” another which case any illicit sexual conduct “any gage[ment] act ... contemplates commercial sex 2423(c), § years age.” person,” 18 with another U.S.C. person with a under 18 2423(f)(2). commercial sex § that which in this case was U.S.C. We hold 2423(f)(2). 2423(e)’s Supreme As the Court requiring travel combination of ago, centuries the Commerce coupled engage- recognized every species of “comprehend[s] ment in a commercial transaction while Clause the Unit- abroad, commercial intercourse between foreign commerce to implicates Gibbons, foreign nations.” ed constitutionally adequate degree. 193; at ty.”); U.S. see also Bd. Trustees Lopez, 514 U.S. at 115 S.Ct. Ill., 56-57, 1624 (explaining at Univ. U.S. that firearm possession (same). statute). purely statute was a criminal regulates Section Morrison, Lopez both pernicious “species of commercial inter strong voiced concerns over Con- course”: commercial sex acts with minors. gress’s use of the Commerce Clause to expressly The statute includes an eco- enact “a criminal statute that its terms component by nomic defining “illicit sexual has nothing to do with any ‘commerce’ or conduct,” in pertinent part, “any sort of economic enterprise, however mercial sex act ... person with a under 18 broadly one might define those terms.” years 2423(f)(2). age.” 18 U.S.C. Morrison, at 120 S.Ct. 1740 “Commercial sex act ‘is defined as’ sex (quoting Lopez, act, on account of which anything of value 1624). Like the regulating statute illicit given is to or by any person.” received Raich, drugs at issue the activity regu- 1591(c)(1). Thus, U.S.C. in the most lated prong commercial sex terms, sterile the statute covers the situa- economic,”17 is “quintessentially tion engages where U.S. citizen in a and thus falls within commercial through transaction which foreign trade and commerce.18 money exchanged for sex acts. Raich, 2423(c) As the fact that has The essential economic character the a criminal as well as an economic compo- commercial regulated by § sex acts nent put beyond does not it stands in contrast to the non-economic ac- reach under Foreign the Commerce regulated by tivities the statutes at issue Indeed, Clause. is far from in Lopez Morrison, and Morrison. See unique using Foreign the Commerce (“Gender- 529 U.S. at 120 S.Ct. 1740 Clause to regulate crimes with an eco- not, motivated crimes of violence are See, nomic facet. e.g., United States v. phrase, (5th Cir.2004) (de- sense the economic Kay, activi- evolving 17. definition of expanding production "economics” to ... the and trade in presents slight quirk analysis. services”); to the Al- goods Agreement and General on though the definition in the 1966 Webster’s Services, 15, 1993, Trade in Dec. 33 I.L.M. New Dictionary Third International cited 44, pmbl. ("Recognizing growing impor- only Court in Raich refers to growth tance of trade in services for the and distribution, production, "the consump- and development economy”); of the world cf. commodities,” tion of more recent versions of Co., Inc., Corp. Copp Paving Oil v. Gulf Webster’s added have "services” to the defini- 186, 195, 42 L.Ed.2d 378 See, e.g., tion. Collegiate Webster’s Merriam that, (1974)(holding the Interstate (10th ed.1993) Dictionary (defining " "eco- Clause, Commerce 'in commerce' lan- nomics” as the social science concerned with guage Clayton of the and Robinson-Patman distribution, production, consump- "the and provisions appears Act ... to denote services”); goods tion of and Merriam-Web- persons or activities within the flow of inter- Dictionary, ster Online available at www.m- practical, state commerce—the economic con- (same) (last 29, 2005). w.com visited Dec. tinuity generation goods in the and services transport interstate markets and their universally It is now acknowledged that consumer.”) distribution to (emphasis foreign trade or commerce includes both added). 585-89, goods Lopez, But see at e.g., Agreement and services. Es- tablishing (arguing 115 S.Ct. 1624 Organization that "commerce" as Multilateral Trade 15, 1993, Organization], understood at [World Trade the time of the Dec. ratification of 13, pmbl. ("Recognizing encompassed only bartering I.L.M. that their Constitution L, (Thomas, trafficking relations in the field goods) of trade and economic concur- endeavour should ring). be conducted with a view Ill 6 inquiry.” relevant to our Id. at 1049 n. 1. “particular instrumentalities

scribing understanding Critical to this was foreign commerce that de- the Su- interstate familiar preme now in car- Court’s statement or caused to be used used fendants Japan Line that “the Founders intended bribery” in purported viola- rying out of the commerce scope Corrupt Foreign Practices tion of ... as Hsu, greater” compared with inter- Act); States v. F.3d Line, Cir.1998) (quoting Japan state commerce. Id. (3rd (discussing statute 195-96 1813). part Espio- the Economic enacted as nage Act of 1996 criminalizes times, forcing foreign At to products of trade secrets related theft cases into the domestic commerce rubric is for or in interstate or placed “produced a bit of the stepsisters trying like one commerce”); glass slipper; don Cinderella’s nonethe- (9th Cir.1957) Gertz, F.2d less, good that, argument there is criminalizing (explaining statute court, found the district can counterfeiting cur- forging regulation also as a be viewed valid of the Foreign rency is based on the previous “channels of Our commerce.” de- Clause). recognized have cisions le- authority to gitimately regu- exercises its The combination of Clark’s travel for- late the channels of commerce where eign commerce and his conduct of an illicit on crime committed soil neces- shortly sex act in Cambodia commercial sarily tied to travel in squarely puts thereafter the statute within even where the actual use channels Congress’s Foreign Commerce Clause au- has Cummings, ceased. See F.3d reaching conclusion, thority. 1050-51. inde- view the Commerce Clause from pendently its domestic brethren. 2423(b) emphasizes Clark re- quires foreign that the travel be with the Likewise, although precedent our illus- specific sex, engage intent illicit categories may that the trates inter-state 2423(c) whereas does not have such a adapted specific foreign be use specific requirement. Although intent the contexts, see, e.g., Cummings, merce intent element the two distinguishes statu- n. categories F.3d at 1049 the have crimes, tory we do not see that it distin- been exclusive or mandato- never deemed guishes scope Congress’s the Constitu- ry, Supreme suggested nor has the Court 2423(b), authority. tional Under application in to the Foreign their relation solely contained crime is within “trav- Prakash, Clause. 55 Ark. Cf. foreign els in provision commerce” of the (“Apparently, Supreme at 1166 L.Rev. charged statute. Under crime in this applicability has never discussed the Court case, (f)(2), and the crime re- three-part Lopez gauging test to quires foreign both and engaging travel foreign commerce power.”). limits an illicit commercial act. sex These are a not a categories guide, straight- The are justifi- two separate different statutes with jacket. In Cummings, upheld we the con- under the cations Commerce Clause. stitutionality the International Parental (“IPKCA”), Act Kidnaping sum, Crime In Clark has failed to demonstrate 1204(a). U.S.C. See at 1051. plain showing Congress “a ... ex holding, applied bounds,” so interstate its ceeded constitutional Morri son, noted framework but that Con- commerce 529 U.S. (f)(2).

gress §§ power” foreign enacting Traveling has “broader and area, country context to a quite paying commerce and this “is and child to ingre engage indispensable regulate sex acts are thorizes Congress activity an pled of the crime to dients which Clark with a bare component, long economic (f)(2) §§ The fact and guilty. activity as that occurs subsequent to some compo economic and criminal meld these form of international travel. I also note single put nents into statute does not go the conduct this case will not beyond conduct reach unpunished, as the reasonable course Foreign Commerce Clause. The ra action remains of recognizing Cambodia’s nexus to a requirement tional is met con authority to prosecute Clark under own its stitutionally Congress sufficient degree. criminal laws. regulate

did not exceed its “to Com I. Nations,” with Const. §I, cl. in criminalizing art. commer government Our govern national is a cial acts with sex minors committed powers,” ment of “enumerated see U.S. U.S. citizens abroad. I, 8,§ Const. art. which presupposes powers enumerated, that are not

AFFIRMED.

therefore not accorded to Congress, see FERGUSON, Judge, dissenting: Circuit (9 Wheat.) Gibbons v. Ogden, U.S. (1824). such, 6 L.Ed. 23 As the Commerce interpreted Constitution cannot “subject Clause is to outer limits.” United according to the principle that the end 549, 556-57, States v. Lopez, justifies the means. The sexual abuse of (1995). 131 L.Ed.2d 626 abroad is despicable, children but we cases, not, Through long line of not, should need refashion our developed a tri-category has frame majority Constitution address it. The helps that “travel work that courts ascertain holds these out limits, coupled engagement particular in a er whether a commercial enact abroad, transaction while for- implicates ment them. exceeds Gonzales — eign constitutionally Raich, commerce to a U.S.-,-, ade- degree.” Maj. I quate op. (2005). at 1114. re- 162 L.Ed.2d 1 In the disagree. spectfully context, the majority would re place this time-tested framework its The Constitution authorizes own broad standard: whether a statute “[t]o Commerce with Na- constitutionally “has tenable nexus with I, 8,§ Art. activity tions.” cl. 3. The Maj. commerce.” op. at 1114. 2423(c), regulated 18 U.S.C. illicit majority The views the foreign commerce conduct, any does not in sense of prong of Commerce “indepen the Clause phrase the relate to commerce for- brethren,” dently from its domestic at Rather, id. eign nations. is crimi- 1116, Congress’s though authority in both punishes nal that private statute conduct spheres by the fundamentally governed is same constitu divorced from com- I, 8, 3, tional language: regulate “[t]o Article Com merce. section clause while I, 8, merce,” art. cl. 3. In giving doing, broad over our so authority nations, majority goes farther than our precedent commercial relations with other is power. dispenses not a counsels grant police tri-catego- international ry I that respectfully majority’s grounded dissent from the framework has Com analysis that au- assertion Commerce Clause merce Clause modern era.1 Though 2211), majority apply- misleading is asserts that it this statement is ex- to the standard,” ing rationality "the traditional rational tent basis review in the Commerce Raich, maj. op. (citing at applied part 1114 S.Ct. at is Clause context of the "sub- fundamentally divorced from that are the raison d’etre portrays majority The correctly majority address So while the framework as merce. tri-category of the that de state sover- concerns “[flederalism Commerce,” a transported a defendant who authorized tion of “[t]o in boy engage to I, § Honduran to Florida art. cl. and not those activities test, relationship a to a de- the statute bears rational stantial effects” which is more open-ended manding inquiry than "nex- Congress’s authority the Commerce [] under the majority proposes. inquiry us” that the Clause,” maj. op. at 1114. Raich is further 561-63, CompareLopez, 514 U.S. at Congress’s distinguished by the fact ap- maj. op. at Courts 1114-17. regula- comprehensive power to effectuate a ply rationality review to assess whether Con- opinion, tory was central to that see scheme gress concluding a basis” for had "rational 2206-07, comparably no 125 S.Ct. at while "substantially particular activity that a af- general regulation ex- of commerce Raich, commerce, fects” interstate case. ists in this inquire generally at not to "whether relations). hand, paid has the a agent up also has travel to set pur- to criminalize travel “for the authority trip, or has otherwise act committed an conduct, (because engaging in pose” of illicit sexual wrongful that is both of the crimi- intent) with such harmful intent con- since travel nal tangibly and related to injurious of an use of the channels stitutes channels of commerce. See, e.g., foreign commerce. United contrast, By punishes neither (5th Bredimus, commerce, traveling the act of in foreign Cir.2003).2 necessarily have not limit- We or wrongful impediment use or use of reach of Congress’s ed under its channels of the channels of commerce. authority commerce based on the cessation Rather, punishes it future in a conduct Thus, of this found it a movement. foreign country entirely divorced from the congressional proper exercise in United traveling except act of for the fact that the persons Cummings prevent States v. to travel at point prior occurs some retaining they from children abroad after regulated conduct. The not statute does first made use of the channels of require any wrongful intent at the time the wrongfully to the chil- commerce remove used, being channel is nor does it require dren from U.S. 281 F.3d temporal link between the in for- “travel[ ] (9th Cir.2002); see also States v. commerce,” eign 2423(c), 18 U.S.C. Shahani-Jahromi, F.Supp.2d underlying regulated activity. (E.D.Va.2003) (holding wrongful re- majority suggests The country, in a foreign tention of child regulation viewed as valid of “can[ ] be impeded which that child’s back to travel ” commerce,’ maj. of op. ‘channels through of com- the channels because channels of merce, a sufficient for Con- provided basis extends regulating

gress to exercise its crimes committed abroad that “neces- are power). commerce,” sarily tied to travel rubric, Under the current U.S.C. requisite id. But whereas ties to the 2423(b) contains a link to the defensible channels of commerce exist in the case of it channels covers cites, majority Cummings, 281 F.3d “[tjravel people engage who with intent to entirely these absent in ties are See, e.g., sexual conduct.” Nick illicit Cummings The con- prohibited statute Man, 86, Madigan, Convicted New Under wrongful retention of children duct— Against Law Americans Abroad Who Go inju- necessarily abroad —that was tied to Minors, Times, N.Y. Nov. Molest rious uses of channels of commerce. (defendant 2004, A12 arrested at was illegally The Cummings defendant Angeles Los International Airport transported Germany his children to so pornographic photographs “dozens there, that he retain them his could Filipino toys girls, himself with sex im- wrongful necessarily retention of them pounds candy”). chocolate and peded their lawful use of the channels 2423(b), activity regulated by § intention return to con- By commerce to the U.S. conduct, illicit sexual is at engage trast, § regulates activity an tenably least related to the channels of use, way is in no connected to the engages wrongful that the defendant use, illegitimate impediment person travel with ends. The the channels 2423(b) 2423(c) § only indicted under a ticket plane foreign has commerce. Section upheld present 2. The in was the statute an statute Bredimus the and which included 2423(b), preceded § U.S.C. requirement. former 18 which intent 2423(c), § regulated by crime terizes the conduct occur regulated requires conduct, sufficiently even related subsequent perhaps illicit as point sexual at some — Nations,” travel. international subsequent foreign art. years with to “Commerce —to statute be lawful—the may well The travel I, Congress’s it under bring § cl. to during any criminal intent require not does authority. Foreign Commerce connect the travel, it otherwise does nor activity First, underlying regulated of the chan- activity to an abuse regulated economic,” maj. op. “quintessentially is not nels of commerce. a bare eco simply because it has at boarding an internation- act of The mere “[gjender-motivated Just as aspect. nomic more, is insufficient without flight, al not, in sense of violence are crimes of activities downstream bring all of Clark’s Morrison, activity,” economic phrase, value within exchange of that involve an 1740, neither is Foreign Com- the ambit of purpose plain “illicit conduct.” The level, every act some power. On 2423(c) criminal con § is to place takes subse- a citizen abroad U.S. duct, commerce. As the not flight or some an international quent to Lopez, “depending on cautioned commerce.” “travel[] form of activity can generality, any the level of cannot mean This 18 U.S.C. as commercial.” 514 U.S. upon looked com- a bare economic every act with 565, 115 1624. from that downstream that occurs ponent subject regulation the Unit- act, Further, travel is if con- underlying even its ed States commercial, or is certain- sidered economic will have the Commerce Clause power, or with ly presence not a of commerce for- general grant a converted into been terms, In the sterile eign nations. most that, telling It to note police power. paid an act sex with a minor takes citizens who theoretically, an act of commerce place overseas is not reach of if could fall outside interpreta- with other nations. Under the in illicit sexual conduct abroad they engage majority, of a purchase tion of the never set foot the United are those who by an citizen lunch in France American (i.e., by virtue of their citizens con- by airplane traveled there would who and thus never travel parent’s citizenship), engaging act of stitute constitutional Art. Nations.” “Commerce an foreign commerce. Under such inter- short, I, is divorced cl. 3. In could have the pretation, Congress Clause under- from asserted Commerce its regulate the overseas activities of U.S. does not set anoth- pinnings. The statute years they after many citizens months Congress’s For- “guidepost” regarding er had concluded their travel power, contra United eign Commerce merce, involved long as the activities Clark, F.Supp.2d States v. exchange of value—even if some sort of (W.D.Wash.2004) exceeds it. —it exchange entity was a U.S. partner into funneled the value back III. the stat- economy. Analogously, American “chan- engaging losing than Rather facially limit does not even its ute here analysis, majority nels commerce” minors in application to sex standard applies general “rational nexus” link to an effort to create a tenable “Com- case, maj. op. at and strains to in this I, § Art. merce with Nations.” foreign commerce in find more may slightly cl. This observation seem boarding act of an international than the absurd, trying is the task of show majority charac- but so flight. Specifically,

H21 how abuse of a minor overseas citizen constitutes an act of “Com-

merce with Nations.” Id.

IV. whole,

Viewed as a it is clear that does not relate to “Commerce Nations.” Id. Nor is exercise constitutional of Con-

gress’s authority regulate the channels exploitation commerce. Sexual of chil- by foreigners thoroughly

dren condemn-

able, question but the before us is whether

Congress properly invoked its “[t]o Nations,” Commerce with

id., enacting § to address this

problem. It did not. I respect- therefore dissent.

fully MORA,

Manuel on his own behalf and persons similarly behalf

on of all

situated, Plaintiff-Appellant,

CONSTRUCTION LABORERS PEN

SION TRUST FOR CAL SOUTHERN

IFORNIA, Defendant-Appellee.

No. 04-55594. Appeals, Richard A. Weinstock and Andrew T. Ninth Circuit. Koenig, Ventura, CA, for the plaintiff-ap- Argued Dec. 2005. Submitted pellant.

Filed Jan. Miller, Klein, John S. Herbert J.

Dwayne McKenzie, CA, P. Angeles, Los the defendant-appellee. for Capuano, DC, Donald J. Washington, curiae, amicus Coordinating National Com- mittee for Multiemployer Plans. federalism notes “unique ing authority in the inter Congress’s do not restrict eignty concerns congressional fine Maj. op. (emphasis commerce,” maj. op. at 1103 context.” over state added) 514 U.S. at (citing Lopez, to consider the re- properly it fails 1624). conclude It thus able to is For- scope Congress’s on the S.Ct. strictions inapplica generally is that this framework from power that emanate eign Commerce A fairer commerce cases. itself, ble the tri- constitutional text which tri-category frame understanding of helps also elucidate. category framework only in it not is that has evolved work to federalism concerns response II. Congress’s into Inter have read courts framework, and tri-category Under give but also to power, state conclusion, contrary District to the Court’s generally “[t]o to what it means content of the chan- regulation is not a Commerce,” I, 8,§ art. cl. 3. regulate Cf. nels of commerce. Section 514 U.S. S.Ct. Lopez, any tangible links to the chan- lacks in in concerns (citing not federalism justify up- nels of commerce that would 922(q), also the 18 U.S.C. but validating Congress’s Foreign Com- holding it under regulates a fact that the statute “neither power. require activity commercial nor contains that Con- Supreme connect Court has held [gun] possession ment commerce”); gress’s authority regulate the channels way to interstate ed Morrison, those encompasses keeping of commerce v. (2000) 610, 120 injurious from immoral and channels “free S.Ct. 146 L.Ed.2d 658 Motel, noneconomic, Inc. v. na uses.” Heart Atlanta (noting that “the criminal States, central to United ture of the conduct at issue” was (1964) (internal quota- L.Ed.2d 258 Lopez). decision in Court’s omitted). Thus, Congress has tion marks authority for While authority the interna- than to criminalize eign may well be broader transport purpose of children for the regulate interstate com tional its see, Line, merce, exploitation of sexual the U.S. because e.g., Japan Ltd. v. Coun 434, 448, injurious transport such is an immoral ty Angeles, Los (1979), of the channels of commerce. 60 L.Ed.2d 336 its au use Cf. Hersh, thority foreign sphere in the is not differ United States Cir.2002) (11th (upholding the convic- spheres, Congress ent in kind. both

Case Details

Case Name: United States v. Michael Lewis Clark

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 25, 2006

Citation: 435 F.3d 1100

Docket Number: 04-30249

Court Abbreviation: 9th Cir.