United States v. Micky RifeUnited States v. Micky Rife
Appeal from the United States District Court for the Eastern District of Kentucky at Frankfort. Nos. 3:19-cr-00010-1; 3:20-cr-00002-1—Gregory F. Van Tatenhove, District Judge.
COUNSEL
ARGUED: James M. Inman, GREEN CHESNUT & HUGHES, PLLC, Lexington, Kentucky, for Appellant. Sonja M. Ralston, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: James M. Inman, GREEN CHESNUT & HUGHES, PLLC, Lexington, Kentucky, for Appellant. Sonja M. Ralston, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Charles P. Wisdom, Jr., UNITED STATES ATTORNEY‘S OFFICE, Lexington, Kentucky, for Appellee.
KETHLEDGE, J., delivered the opinion of the court in which BUSH, J., joined. STRANCH, J. (pp. 14–30), delivered a separate opinion concurring in the judgment.
KETHLEDGE, Circuit Judge. At issue in this case is whether Congress has plenary power to regulate the conduct of American citizens after they travel overseas. Micky Rife, a Kentucky-born U.S. citizen, travelled to Cambodia and, years later, sexually abused two girls. After returning to Kentucky, he pled guilty to engaging in illicit sexual conduct abroad in violation of
In September 2012, Rife moved from Kentucky to Phnom Penh, Cambodia. There, he took a position as an elementary-school teacher, began a relationship with a Cambodian woman, and adopted a young Cambodian girl. (One may suspect that these relationships were not what they seemed, but the record here contains no information to that effect.) For the next six years, Rife lived and worked exclusively in Cambodia, obtaining each year an “Extension of Stay” temporary visa through his U.S. passport. Rife did not visit the United States during that period, though he maintained a bank account and property in Kentucky.
In 2018, Cambodian authorities opened an investigation into allegations that Rife had sexually assaulted his young female students. One girl reported that, on more than one occasion when she was four or five years-old, Rife tossed her up into the air and touched her vagina underneath her clothing; she also said he put his fingers inside her vagina, which hurt. A second girl reported that, when she was seven or eight, Rife put his hand underneath her clothing and put his fingers on her vagina while he was carrying her—and that “it happened many times.”
That December, based upon information received from Cambodian authorities, Rife‘s school terminated his employment. Four days later he voluntarily returned to Kentucky, where federal agents soon interviewed him about his actions in Cambodia. Rife told them he had been fired for “mishandling kids,” and eventually confessed to abusing two of his female students as described above. The agents arrested him.
A federal grand jury soon indicted Rife on two counts (one for each victim) of illicit sexual conduct in a foreign place, in violation of
Rife moved to dismiss the indictment, arguing that Congress lacked constitutional authority to punish him for noncommercial acts of sexual abuse that occurred in a foreign country years after he had travelled there. The government countered that the application of
Rife then entered a conditional plea of guilty to one count of illicit sexual conduct,
II.
Rife challenges the constitutionality of
We review de novo whether
A.
1.
The Constitution empowers Congress to “regulate Commerce with foreign Natiоns, and among the several States, and with the Indian Tribes[.]”
None of this history is controversial. Indeed, two of the “three broad categories of activity that Congress may regulate under its commerce power,” Lopez, 514 U.S. at 558 (majority opinion), roughly track this historical understanding. In Lopez the Court wrote about those “broad categories” with respect to interstate commerce in particular. “First, Congress may regulate the use of the channels of interstate commerce.” Id. “Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.” Id. The Court‘s departure from the original meaning of “commerce” came in the third category: summarizing the Court‘s caselaw, again with respect to interstate commerce in particular, the Court in Lopez recited thаt “Congress’ commerce authority includes the power to regulate” not only commerce itself, but also “those activities that substantially affect interstate commerce.” Id. at 558-59.
In the 80 years since the Supreme Court added that third category to Congress‘s power to regulate interstate commerce—an addition that has come to overshadow the original structure to which it was attached—the Court has not extended it to Congress‘s power to regulate under the Foreign Commerce Clause. See Baston v. United States, 137 S. Ct. 850, 852 (2017) (Thomas, J., dissenting from denial of certiorari) (observing that the federal circuit courts have been “[w]ithout guidance from this Court as to the proper scope of Congress’ power under this Clause“). Thus, a threshold question here is whether we must or should extend that addition to Congress‘s foreign-commerce power ourselves.
2.
Our answer to that question rests on first principles. Law is a public act. Its meaning depends not on the secret intentions of lawgivers, but on the meaning understood by the people bound by it. Basic principles of due process require no less. Meanwhile, the creation of positive law—meaning statutes and the Constitution itself—can occur only pursuant to the procedures prescribed in the Constitution. For statutes, those procedures are bicameralism and presentment. See
There is no such precedent here. See Baston, 137 S. Ct. at 852 (Thomas, J., dissenting). Nor do we otherwise see any compulsion to add to the Foreign Commerce Clause the revisionist structure that, 80 years ago, the Supreme Court added to the Interstate Commerce Clause. (That addition, it bears mention, came during a period of national exigencies peculiar to interstate commerce—namely a national Depression ever since known as such, and (in Wickard v. Filburn, 317 U.S. 111 (1942)) the beginnings of a nationwide war effort.) True, Justice Blackmun once observed in dicta that, “[a]lthough the Constitution grants Congress power to regulate commerce ‘with foreign Nations’ and ‘among the several States’ in parallel phrases, there is evidence that the Founders intended the scope of the foreign commerce power to be the greater.” Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 448 (1979) (citation omitted). But in that comparison the Founders surely did not have the current interstate-commerce power in mind.
The government asserts that “considerations of fеderalism and state sovereignty” are absent “in the foreign context[,]” and thus that “the primary rationale for limiting Congress‘s power over interstate commerce does not touch the authority of the Congress in the regulation of foreign commerce.” Gov‘t Br. at 27 (internal quotation marks omitted). That argument is as remarkable as it is unfortunate. The “primary rationale” for limiting Congress‘s power is not that those limits support one theory of political science or another. The rationale, rather, is that those limits are part of a written constitution that is “the supreme Law of the Land” and that every federal officer is sworn to uphold.
In sum, to determine whether Rife‘s conviction under
3.
That analysis is straightforward. Rife‘s molestation of his two victims was undisputedly noncommercial, and thus was not itself trade or commerce of any kind. True, Rife met his victims at the school where he taught; but the government concedes that his abuse conduct was itself in no way commercial. That distinguishes this case from United States v. Park, 938 F.3d 354 (D.C. Cir. 2019), upon which the government and the concurring opinion rely here. There, the government charged Park in a single count, alleging both sexual abuse and production of child pornography, in violation of
Rife‘s abuse of his two victims was likewise not part of any transportation or traffic in foreign commerce. To the contrary, Rife had ceased travelling in foreign commerce when he arrived in Cambodia years before. The government counters that
The government also likens this case to United States v. Coleman, 675 F.3d 615 (6th Cir. 2012), where we upheld a requirement that convicted sex offenders must “register” their new address when they move (in the sense of changing their residence) from one state to another. See
In sum, Rife‘s conviction under
B.
1.
That leaves the question whether we can uphold Rife‘s conviction as an exercise of
That Rife‘s conviction was not supported by the Foreign Commerce Clause means that none of Congress‘s enumerated powers—other than its power to implement treaties—supports that conviction. Hence the question here is the same question that the Supreme Court declined to reach in Bond. See 572 U.S. at 854-55.
That question is whether the President and two-thirds of the Senate, by the sole fact of their consent to a treaty, can empower Congress to enact legislation that it otherwise could not enact by the exercise of its enumerated pоwers in Article I. The implications of that question are “seismic[,]” because the prevailing view appears to be that “the Treaty Clause comes with no implied subject-matter limitations.” Bond, 572 U.S. at 877 (Scalia, J., concurring in the judgment). For if the Treaty Power has no subject-matter limitations, Congress‘s power to enact laws that implement treaties would not have any subject-matter limitations either. (The concurring opinion‘s assurance that an implementing statute must have a “plain” connection with the relevant treaty, Op. at 16, only underscores the absence of any meaningful constraints upon this putative power.) The Necessary and Proper Clause would become a portal, through which Congress would leave behind its limited powers and exercise, at last, an unlimited one. For example, a treaty addressing climate change—or an international convention for the prevention of infectious diseases—might empower Congress to regulate virtually any conduct it chose. Congress would be “one treaty away from acquiring a general police power.” Id. at 879.
2.
The question, differently stated, is whether one organ of government can expand the powers of another, notwithstanding the fundamental law‘s manifest object to constrain them both. The Founding generation was acutely familiar with that kind of question. In Anglo-American histоry, the struggle to limit governmental power reaches at least as far back as the 1215 version of Magna Charta, when the barons brought King John to heel—and stopped his practice of attacking them with mercenary troops—by eliciting at sword-point a promise to exercise his coercive powers pursuant only to the ancient law of the land. See Magna Charta ¶ 39 (1215); McIlwain, Constitutionalism and the Changing World (hereinafter “Constitutionalism“) 103-06 (Cambridge 1939). But more germane to our purposes—not least because many of the early colonists witnessed it firsthand—was the effort by judges and Parliament in the 17th century to resist the Stuart monarchs’ claims of unlimited power. Not long after his coronation in
Closer to the mark here was Parliament‘s claim in the 18th century that Parliament itself was sovereign—meaning that above Parliament there was no law, and thus that its power was unlimited. McIlwain, Constitutionalism 62-64. In the 1760s, Parliament exercised such power by passing various statutes to tax the American colonists, even though they lacked representation in Parliament and thus had not consented to any taxes. For centuries, consent to taxation—or to any statute affecting individual rights—had been a requirement of what was known by then as the English constitution. Maitland, Constitutional History 68. Yet Parliament made its assertion of unlimited power over the colonies clear in the Declaratory Act of 1766, which stated that Parliament “had, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America, subjects of the crown of Great Britain, in all cases whatsoever.” 6 Geo. 3, ch. 12 (1766) (emphasis added). The Massachusetts Circular Letter of 1768, written by Samuel Adams, declared in response “that in all free States the constitution is fixed; and as the supreme legislative derives its power and authority from the constitution, it cannot overleap the bounds of it, without destroying its own foundation[.]” (Emphasis added.) McIlwain—among American historians, the preeminent expositor of constitutionalism—concluded: “The American Revolution itself, so far as its causes were theoretical, had been fought on this issue.” McIlwain, Constitutionalism 67.2
In light of this history, the idea that the Founding generation would have included in the Constitution as part of an ancillary power of Article I, no less—a hidden power to “overleap the bounds” of all the other powers in that Article, and to legislate “in all cases whatsoever,” is simply implausible. The Revolution was fought in opposition to the Declaratory Act, not to make it the supreme law of the land. Chief Justice Marshall recognized as much when he wrote that “a great substantive аnd independent power . . . cannot be implied as incidental to other powers, or used as a means of executing them.” McCulloch v. Maryland, 17 U.S. 316, 411 (1819). Yet the government asks us to recognize such a power here. That the conduct at issue in the case occurred overseas is merely a fortuity: the principle it advocates would enable Congress, with the right treaty, to regulate any conduct it chooses domestically. And that Rife‘s conduct deserves severe punishment does not allow us to authorize it contrary to law.
But as to Congress‘s power to implement treaties—unlike its power to regulate commerce with foreign nations—we do not write on a relatively clean slate. In Missouri v. Holland, 252 U.S. 416 (1920), the Supreme Court considered the constitutionality of the Migratory Bird Act of 1918. That statute, like the one here (as applied to Rife at least), appeared not to have been authorized by any of Congress‘s enumerated powers under Article I. But the 1918 Act was passed to implement a recent treaty of the same name. The Court held, in a sentence regarded since as ipse dixit: “If the treaty is valid there can be no dispute about the validity of the statute under Article I, Section 8, as a necessary and proper means to execute the powers of the Government.” Id. at 432.
That holding binds us here. The Optional Protocol is undisputedly a valid treaty; and we cannot say that
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The district court‘s judgment is affirmed.
CONCURRING IN THE JUDGMENT
JANE B. STRANCH, Circuit Judge, concurring in the judgment. Though I agree with the ultimate result in this case, I concur in the judgment only and write to express why I differ with the analysis of the opinion.
My disagreement is undergirded by the opinion‘s failure to acknowledge that the “fundamental and long-standing principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.” Lyng v. Nw. Indian Cemetery Protective Ass‘n, 485 U.S. 439, 445 (1988). Judicial restraint originates from the limits to our power under Article III, Torres v. Precision Indus., Inc., 938 F.3d 752, 755 (6th Cir. 2019) (citing
I am concerned, then, about the extent of the issues on which the majority opines but also disquieted by some of the substance. I agree, for example, that
In sum, my decision to concur in the judgment grows from my objections to the analytical treatment of the treaty power and the Foreign Commerce Clause, both as to substance and process. The opinion, in my estimation, places the Sixth Circuit out of step with our sister circuits and the governing case law and compels me to provide a response.
A. The Foreign Commerce Clause
The Constitution givеs Congress the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes[.]”
The latter is the most discussed in the case law. Although referring to the “commerce power” in the main, the Supreme Court has defined “three general categories of regulation in which Congress is authorized to engage under its commerce power” within the interstate framework. Gonzales v. Raich, 545 U.S. 1, 16 (2005). Congress has the power to regulate (1) the channels of interstate commerce, (2) the instrumentalities of interstate commerce, meaning those means used to transport good or people in interstate commerce, and (3) activities substantially related to interstate commerce. United States v. Lopez, 514 U.S. 549, 558 (1995). The constraints defined through these three categories are not illusory. In Lopez, the Supreme Court held that a statute criminalizing the possession of a firearm in a school zone was unconstitutional because the law failed to fit within any of the three categories. Id. at 561-62, 567. The Court reached a similar result in United States v. Morrison when it struck down sections of the Violence Against Women Act that lacked a substantial relationship to interstate commerce. 529 U.S. 598, 617 (2000). Left unanswered, however, is whether or to what extent this framework applies to cases involving the Foreign Commerce Clause. Our sister circuits have reached different conclusions on the issue, and until this case, we have not ruled on it. Compare United States v. Pendleton, 658 F.3d 299, 308 (3d Cir. 2011) (using the Lopez framework in concluding that the Foreign Commerce Clause gives Congress the power to enact
The majority opinion, however, rejects the Lopez framework entirely, contending that there is no “compulsion to add to the Foreign Commerce Clause the revisionist structure that, 80 years ago, the Supreme Court added to the Interstate Commerce Clause.”2 Op. at 6. I cannot agree with this appeal to “first principles” or to the vague premise of originalism as justification to jettison the Supreme Court‘s Interstate Commerce Clause jurisprudence. Id. Nor am I comfortable with the conclusions, primarily citing to Supreme Court concurrences and dissents, as to the “original meaning” of “commerce” at ratification or
The purported “original meaning,” moreover, offers little certainty about the best application of our constitutional structure to novel issues like the one presented in this case. Indeed, it is not difficult to find historical sоurces and case law signaling that the Founders envisioned the Foreign Commerce Clause as granting greater power to Congress than its interstate compatriot and understood “commerce” much more broadly than the majority suggests. Samuel Johnson‘s dictionary, a commonly cited source3 for understanding language used at the Founding, offers a much broader definition of “commerce” than the majority allows in its version of “original public meaning.” “Commerce,” according to Johnson in 1785, is “[i]ntercourse; exchange of one thing for another, interchange of any thing; trade; traffick” and “common or familiar intercourse.” Samuel Johnson, A Dictionary of the English Language (7th ed. 1785) (unpaginated). “Commerce,” therefore covered more than economic activity and included “interactions, exchanges, interrelated activities, and movements back and forth, including, for example, travel, social connection, or conversation.” Jack M. Balkin, Commerce, 109 Mich. L. Rev. 1, 15-16 (2010). As explained in Gibbons v. Ogden: “Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.” 22 U.S. at 189-90. Historians have concluded that “commerce” at the Founding included “every species of gainful activity carried on by Americans with foreign Nations,” even sweeping in naturalization laws based on their effect on manufacturing in the United States. William W. Crosskey, 1 Politics and the Constitution in the History of the United States 117, 129-30 (1953). The requirement that these activities occur “with foreign Nations,” in turn, provides a nexus requirement that reaches beyond our Nation‘s borders. The text of the Foreign Commerce Clause offers only two constraints on congressional action: that the action (1) “regulate Commerce” and (2) concern commerce “with foreign Nations.” See Bollinger, 798 F.3d at 213. That specification of power, combined with the Necessary
As to the extent of Congress‘s power over commerce, James Madison described the regulation of foreign commerce as “the great and essential power,” in comparison to the “supplemental” power of the Interstate Commerce Clause. Federalist No. 42, at 283 (James Madison) (Jacob E. Cooke ed., 1961); see also 3 The Records of the Federal Convention of 1787, at 478 (Max Farrand ed., 1911) (February 13, 1829 letter from James Madison). “[T]here can be little doubt that the [Framers‘] major preoccupation was with foreign trade and that the power over interstate commerce, while coordinate in expression, was distinctly secondary in scope and intended operation.” Albert S. Abel, The Commerce Clause in the Constitutional Convention and in Contemporary Comment, 25 Minn. L. Rev. 432, 469 (1941). It is true that the Supreme Court has yet to specify exactly how its century of cases delineating the scope of the Interstate Commerce Clause apply to cases involving the Foreign Commerce Clause. But the Court has implicitly rejected reading the Foreign Commerce Clause more narrowly than the Interstate Commerce Clause. Indeed, it has embraced the broad reach of Congress‘s powers under that clause: In Japan Line, Ltd. v. Los Angeles County, the Court determined that “there is evidence that the Founders intended the scope of the foreign commerce power to be the greater.” 441 U.S. 434, 448 (1979). We are bound to follow what the Supreme Court has told us.
In some sense, the majority is correct. We can and should distinguish the Foreign Commerce Clause and the Interstate Commerce Clause because the constraints inherent in the latter lack the same justification when applied to the Foreign Commerce Clause. Bd. of Trs. of Univ. of Ill. v. United States, 289 U.S. 48, 59 (1933). But those constraints work against the majority‘s conclusions. Federalism—the driving concern of limits on the Interstate Commerce Clause—has no impact on a power focused on permitting the United States to speak with one voice. See, e.g., Japan Line, 441 U.S. at 448; Morrison, 529 U.S. at 615; see Neuman, supra, at 1500-01. In NLRB v. Jones & Laughlin Steel Corp., for example, the Supreme Court explained that the power to regulate interstate commerce “must be considered in the light of our dual system of government and may not be extended” so far as to “obliterate the distinction between what is national and what is local and create a completely centralized government.” 301 U.S. 1, 37 (1937). Lopez‘s anxiety that the expansion of congressional authority under the Interstate Commerce Clause would create in the federal government “a general police power of the sort retained by the States,” 514 U.S. at 567, undoubtedly also rests on federalism. Thus, the Court explained that federalism in Interstate Commerce Clause jurisprudence is driven by the principle that “a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.” Id. at 552 (quoting Gregory v. Ashcroft, 501 U.S. 452, 458 (1991)).
In contrast, the Foreign Commerce Clause signals the need for a unified federal action in interactions among sovereign nations. “In international relations and with respect to foreign intercourse and trade the people of the United States act through a single government with unified and adequate national power.” Bd. of Trs. of Univ. of Ill., 289 U.S. at 59. There is no federalism issue because the
One could imagine an additional objection to an expansive Foreign Commerce Clause—that incorporation of the Interstate Commerce Clause framework into the Foreign Commerce Clause context will impinge on the sovereignty of other nations. The opposite is true. The PROTECT Act does not challenge foreign sovereignty, but instead reinforces a consensual, international regulatory framework that allows the United States to target the conduct of its own citizens and permanent residents only. And it has long been recognized that “Congress has the authority to enforce its laws beyond the territorial boundaries of the United States.” E.E.O.C. v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991); see also Blackmer v. United States, 284 U.S. 421, 437 (1932). The Constitution lacks any clear expression of concern about the sovereignty of foreign nations. Unlike federalism, which is wоven into the fabric of our constitutional structure, foreign national sovereignty features in neither the Constitution nor the Constitutional Amendments. See United States v. Durham, 902 F.3d 1180, 1205-06 (10th Cir. 2018), cert. denied, 139 S. Ct. 849 (2019). As the Supreme Court has explained, “foreign sovereign immunity is a matter of grace and comity on the part of the United States, and not a restriction imposed by the Constitution.” Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486 (1983). Broader foreign sovereignty concerns, therefore, should not constrain the Foreign Commerce Clause.
These differences from the Interstate Commerce Clause cannot lead us to read the Foreign Commerce Clause so narrowly as to make it the lesser power. Indeed, to construe it more narrowly than its interstate commerce counterpart, as the majority does, is to ignore clear judicial precedent and thoughtful scholarly analysis. See, e.g., Japan Line, 441 U.S. at 448; Scott Sullivan, The Future of the Foreign Commerce Clause, 83 Fordham L. Rev. 1955, 1968 (2015) (“Court opinions agree that the scope of the Foreign Commerce Clause is, at the very least, decidedly broader than that of the Interstate Commerce Clause.“).
The Indian Commerce Clause is perhaps the more apt guide for interpreting the limits of this power. As federal courts, including the Supreme Court, have long recognized, the parallel wording of the Foreign Commerce Clause and the Indian Commerce Clause requires that similаr breadths of power be afforded under those clauses. See, e.g., Buttfield v. Stranahan, 192 U.S. 470, 493 (1904) (“The power to regulate foreign commerce is certainly as efficacious as that to regulate commerce with the Indian tribes.“); Durham, 902 F.3d at 1202. The Supreme Court has explicitly tied the two
However, the extent of Interstate Commerce Clause jurisprudence provides the most complete analytic framеwork. We therefore should look to our Interstate Commerce Clause jurisprudence as a starting point—not a ceiling—for an evaluation of
Here, the reasoning of our sister circuits that have addressed this exact issue provides helpful guidance. All circuit courts to have considered this issue, save us, have found that the Foreign Commerce Clause provides Congress the power to enact
We need not, however, define what specific “effects test” to use, see, e.g., Durham, 902 F.3d at 1207 (“substantial effect“); Bollinger, 798 F.3d at 215-16 (or “demonstrable effect[s]“), nor determine how faithfully we should apply the Lopez framework to Foreign Commerce Clause cases. It suffices to say only that the Foreign Commerce Clause does provide Congress with the power required to enact
(citations omitted). In the congressional debates on the law, representatives cited the fact that American citizens were using the channels of foreign commerce to travel to countries where lax law enforcement and poverty make it easy to escape prosecution for sexual abuse of minors. See 148 Cong. Rec. H3884-85 (daily ed. June 25, 2002).
The PROTECT Act‘s criminalization of non-commercial child sex abuse by U.S. citizens living abroad supports the larger goal of eliminating commercial sexual child exploitation in the face of the “enforcement difficulties” that a more straightforward proof of transaction requirement would entail. Cf. Raich, 545 U.S. at 22. As the D.C. Circuit explained in response to this very question, “[p]roof of the commercial aspect of child sexual exploitation can be exceptionally elusive,” even as international child sex tourists pay for goods and services to bring them in close contact with possible victims. Park, 938 F.3d at 373 (citing Najat Maalla M‘jid, Report of the Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography, U.N. Doc. A/HRC/22/54, at 5 (Dec. 24, 2012)). Sexual predatоrs’ common means to access victims, moreover, often involve grooming behaviors, like giving gifts or money, to establish trust and manipulate the child. Id. (citing Georgia M. Winters & Elizabeth L. Jeglic, Stages of Sexual Grooming: Recognizing Potentially Predatory Behaviors of Child Molesters, 38 Deviant Behav. 724, 726 (2017)).
The challenging question here is not whether the Foreign Commerce Clause allows Congress to regulate U.S. citizens’ actions abroad, but instead whether as applied to Rife that necessary effect on commerce brings his conduct under this wide umbrella of congressional power. In Park, the D.C. Circuit recognized “the possibility that some applications of [
Because our agreed result here relies on the treaty power, however, we need nоt reach a decision on which exact path to take with the Foreign Commerce Clause. I write only to explain why I believe the interpretation the majority has chosen is simply incorrect.
B. Treaty Power
Although the majority opinion upholds Rife‘s conviction based on its conclusion that
The Constitution‘s Treaty Clause provides that the President may enter treaties with the advice and consent of the Senate.
Our review of whether Congress has properly exercised its treaty power focuses on “whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.” United States v. Comstock, 560 U.S. 126, 134 (2010) (citing Sabri, 541 U.S. at 605). The question, then, is whether Congress‘s chosen means to effectuate a valid treaty are “‘convenient, or useful,’ or ‘conducive‘” to the treaty‘s end purpose. Id. at 134-35 (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 413 (1819)). “[T]he degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted and the end to be attained, are matters for congressional determination alone.” Id. at 135 (quoting Burroughs v. United States, 290 U.S. 534, 548 (1934)).
The majority justifies its significant criticisms of this prescribed analysis by asserting that the Supreme Court‘s explication of the treaty power in Missouri v. Holland, 252 U.S. 416 (1920), is on “shaky ground” after Bond v. United States, 572 U.S. 844 (2014). But Bond did not undermine Holland. Instead, Bond looked first to statutory construction to avoid reaching the constitutional question of whether a broad reading of the Chemical Weapons Convention Implementation Act of 1998 was within Congress‘s treaty power. Bond, 572 U.S. at 856-66. The Court‘s primary concern was that the federal government‘s interpretation of that statute would create significant federalism problems because it could reach purely local crimes. See, e.g., id. at 854, 858-60, 866. The Supreme Court, moreover, emphasized the “well-established principle governing the prudent exercise” of an Article III court‘s jurisdiction that it “will not decide a constitutional question if there is some other ground upon which to dispose of the case.” Id. at 855 (quoting Escambia Cnty. v. McMillan, 466 U.S. 48, 51 (1984) (per curiam)). Only the concurrences suggested the prudence of addressing the reach of the treaty power. Id. at 873-74 (Scalia, J., concurring in judgment); id. at 882 (Thomas, J., concurring in judgment); id. at 897 (Alito, J., concurring).
Given that Holland remains good law, we must examine whether the PROTECT Act‘s criminalization of non-commercial sexual abuse by a U.S. citizen residing abroad,
Although the Optional Protocol does not explicitly require the criminalization of non-commercial sexual abuse, there is a rational relationship between the aims of the Optional Protocol and the implementing PROTECT Act. The United States State Department explained that the revised version of
Without
Rather than undertaking the normative analysis of whether the statute enacted by Congress is rationally related to the implementation of the Optional Protocol, the opinion again relies on a recitation of history, here pointed to proving that the Founders would not have placed in the Constitution “a hidden power to ‘overleap the bounds’ of all the other powers in that Article.” Op. at 12. In addition to my objections regarding the limits of historical interpretation, the opinion‘s concerns about the dangers of Congress‘s treaty power overlook the constraints on that power embedded in the Constitution and our case law. As the D.C. Circuit noted in Park, “[t]he government may not simply point to any tangentially related treaty to defend a constitutionally suspect statute.” Park, 938 F.3d. at 369. First, a valid exercise of the Necessary and Proper Clause requires that there be a “plain” connection between a “legitimate” treaty and the implementing statute. McCulloch, 17 U.S. at 421. Second, valid implementing legislation cannot be “prohibited” by the Constitution and must be in accord “with the letter and spirit of the constitution.” Id. The majority‘s disagreement with Justice Holmes‘s controlling opinion in Missouri v. Holland does not change this assessment, particularly with respect to
I am troubled by the notion that anecdotal “historical” statements impart the ability to speak with confidence about how the Framers of the Constitution would have considered the particulars of a current case. Even if I put aside the very real methodological concerns about this type of quasi-historical analysis,5 we are still left with the unrealistic assumption that all the human factors that render “our own world so messy and confusing” were somehow absent from the time of our nation‘s origins. Kramer, supra, at 401. Humanity being what it is, I am inclined to agree that in thоse times, as in our own, there is
At the close of the Constitutional Convention in 1787, Benjamin Franklin remarked that, although he disapproved of aspects of the Constitution, he would not be in haste to pass public judgment because “[f]or having lived long,” he had “experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise.” 3 The Records of the Federal Convention of 1787, at 641-42. Our preeminent Founding Father explained to his colleagues, “[T]he older I grow, the more apt I am to doubt my own judgment, and pay more respect to the judgments of others.” Id. at 642.
Our nation has had over 200 years to interpret our Constitution. Throughout those many years and cases, the justices and judges in our third branch of government have taken to heart the admonition of Founding Father Benjamin Franklin. We have received new or better information that, on occasion, has led us to change our opinions аnd to pay respect to the opinions of others on what that venerable document means. I would therefore follow the process developed by the judiciary over time. When I employ here those principles found in case law handed down from the Supreme Court and the guidance from our sister circuits, I reach the same ultimate result as the opinion. In doing so, however, I follow a different path (as to process and substance) that leads me to conclude that both the treaty power and the Foreign Commerce Clause provide the constitutional support necessary for Rife‘s conviction under