Case of the Month: United States v. Clark

My vote for the most important international law case in January is the Ninth Circuit’s decision in United States v. Clark. The case represents a rare and important instance of a court attempting to grapple with the scope of the Foreign Commerce Clause.

Michael Clark was convicted of traveling to Cambodia to engage in commercial sex with a minor in violation of federal law. The relevant statute, 18 U.S.C. § 2423(c), provides that “… Any United States citizen or alien admitted for permanent residence who travels in foreign commerce, and engages in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.”

Clark first argued that the statute violated international law principles of prescriptive jurisdiction. The Ninth Circuit recognized the presumption against extraterritoriality, but concluded that this statute is explicit as to its application outside the United States. Moreover, the statute complied with international law principles in that it applied to U.S. nationals, which clearly is recognized under the nationality principle. Although not addressed in the case, an open question is whether the same would be true if Clark were a permanent resident rather than a U.S. citizen.

More significant, Clark argued that Congress exceeded its power under the Foreign Commerce Clause in enacting § 2423(c). The statute is problematic under the Foreign Commerce Clause in that it regulates “illicit sexual conduct,” which embraces both non-commercial and commercial sex with minors. The Court offered an extensive analysis of the Interstate Commerce Clause, the Indian Commerce Clause, and the Foreign Commerce Clause to determine the scope of congressional authority to regulate foreign commercial sexual acts.

The Ninth Circuit distinguished Interstate Commerce jurisprudence and focused on the sweeping powers granted to Congress to regulate foreign commerce and the absence of traditional federalism concerns under this Clause. “Born largely from a desire for uniform rules governing commercial relations with foreign countries, the Supreme Court has read the Foreign Commerce Clause as granting Congress sweeping powers…. The Court has been unwavering in reading Congress’s power over foreign commerce broadly…. There is no counterpart to Lopez or Morrison in the foreign commerce realm that would signal a retreat from the Court’s expansive reading of the Foreign Commerce Clause.” Applied to Clark’s conduct, the Ninth Circuit concluded that “[t]raveling to a foreign country and paying a child to engage in sex acts are indispensable ingredients of the crime to which Clark pled guilty…. Congress did not exceed its power ‘to regulate Commerce with foreign Nations’ … in criminalizing commercial sex acts with minors committed by U.S. citizens abroad.”

In dissent, Judge Ferguson argued that the conduct of Clark did not constitute commerce with foreign nations and therefore was beyond the scope of congressional regulation. “[A]n act of paid sex with a minor that takes place overseas is not an act of commerce with other nations. Under the interpretation of the majority, the purchase of a lunch in France by an American citizen who traveled there by airplane would constitute a constitutional act of engaging in foreign commerce.”

It is remarkable how little attention is paid to the Foreign Commerce Clause in constitutional Commerce Clause analysis. Clark offers a useful perspective on the scope of congressional authority to regulate commercial and non-commercial sexual conduct that occurs abroad. The case was relatively easy because Clark was a U.S. citizen who paid for sex with a minor in a foreign country. But the statute was not limited to commercial sex, regulating any illicit sex with a minor in a foreign country that would be a violation of U.S. law had it occurred within the United States. The broadest application of that statute could raise interesting issues about the authority of Congress to regulate non-commercial foreign acts pursuant to the Foreign Commerce Clause.

It is simply astonishing that in 2006 the Ninth Circuit can begin a case by stating “we are confronted with a question of first impression regarding the scope of Congress’s power under the Foreign Commerce Clause.” Clark is well worth a close read by any scholar interested in that question.