Congress’s Foreign Commerce Clause Power Questioned

Congress’s Foreign Commerce Clause Power Questioned

Legal Sidebari

Congress’s Foreign Commerce Clause Power
Questioned
June 23, 2022

On May 5, 2022, a divided panel of the U.S. Court of Appeals for the Sixth Circuit (the panel) held that
the federal sex tourism statute, 18 U.S.C. § 2423(c), outlawing overseas child molestation, exceeds
Congress’s legislative authority under the Constitution’s Foreign Commerce Clause, but remains viable
under treaty-implementing constitutional provisions. The opinion is at odds with those of other federal
appellate decisions. It is also cast in language that invites the Supreme Court to revisit its treaty-
implementing and Interstate Commerce Clause “substantial effect” jurisprudence.
Background
Micky Rife travelled from the United States to Cambodia to become a school teacher there. Authorities
accused him of noncommercial sexual assault of two young students several years later. Federal
prosecutors secured his indictment and conviction in the U.S. District Court for the Eastern District of
Kentucky under Section 2423(c). On appeal, he questioned whether Congress had the legislative authority
to enact a statute applicable to him under either the Constitution’s Foreign Commerce Clause or its Treaty
Enabling Clause.
Foreign Commerce Clause
Congress possesses only such legislative authority as can be traced to the Constitution. Article I, Section 8
of the Constitution authorizes Congress “to regulate Commerce with foreign Nations, and among the
several States, and with Indian Tribes.” The Supreme Court in Lopez explained that the Interstate
Commerce Clause (“Commerce among the several States”) encompasses the power to regulate (1) “the
use of the channels of interstate commerce;” (2) “the instrumentalities of interstate commerce, or persons
or things in interstate commerce;” and (3) “those activities having a substantial relation to interstate
commerce.” The Lopez third category builds on the Court’s holding decision in Wickard v. Filburn (as
articulated in Fry v. United States): “Even activity that is purely intrastate in character may be regulated
by Congress, where the activity, combined with like conduct by others similarly situated, affects
commerce among the States or with foreign nations.” The Court invoked the same principle when it
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upheld the Controlled Substances Act as an exercise of power under the Interstate Commerce Clause in
Gonzales v. Raich.
The Third, Fourth, Ninth, Tenth, and (arguably) the D.C. Circuits have each held that Section 2423(c)
constitutes a valid exercise of congressional authority under the Foreign Commerce Clause, although
under somewhat different modes of analysis (i.e., Third Circuit (“‘express connection’ to the channels of
foreign commerce”); Fourth Circuit (“demonstrable effect” on foreign commerce); Tenth Circuit
(“substantial effect” on foreign commerce); Ninth Circuit (same); and the D.C. Circuit (same)).
The Sixth Circuit panel was unconvinced. From its perspective, “the [Supreme] Court’s departure from
the original meaning of ‘commerce’ came in [Lopez’s] third category” and the panel did not “see any
compulsion to add to the Foreign Commerce Clause the revisionist structure that, 80 years ago [in
Wickard], the Supreme Court added to the Interstate Commerce Clause.” The “threshold question”
according to the panel, was “whether we must or should extend that [Lopez ‘substantial-effects’] addition
to Congress’s foreign-commerce power ourselves.” To do so, the panel concluded, would mean that “once
an American citizen travels in foreign commerce, the federal government has a police power to regulate
(or proscribe) any conduct that citizen might engage in overseas.” It accordingly declared that application
of Section 2423(c) to Rife’s noncommercial conduct would exceed Congress’s authority under the
Foreign Commerce Clause.
Treaty Clause
At the same time, the panel acknowledged that the congressional power to enact Section 2423(c) and
apply it to Rife rested comfortably within the inventory of Congress’s legislative prerogatives under the
Treaty Clause by way of the Necessary and Proper Clause.
The President enjoys the constitutional “Power, by and with the Advice and Consent of the Senate, to
make Treaties,” and Congress enjoys the constitutional power “To make all Laws which shall be
necessary and proper for carrying into Execution” the President’s powers and its own. In spite of grave
doubts that the President and 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 powers,”
the panel felt bound by the Supreme Court’s holding in Missouri v. Holland, which stated that “if [a]
treaty is valid there can be no dispute about the validity of the statute” implementing the treaty under the
Necessary and Proper Clause. But that means, the panel suggested, that “[t]he Necessary and Proper
Clause would become a portal, through which Congress would leave behind its limited powers and
exercise, at last, an unlimited one.” In light of the panel’s understanding of 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.”
A third member of the panel concurred in the result but disputed the majority’s analysis on both the
Foreign Commerce Clause and the Treaty Clause questions. She did not share the panel’s doubts about
the validity of Lopez or Holland, and questioned the wisdom of creating a circuit split on the Foreign
Commerce Clause’s reach.
So What?
The panel affirmed Rife’s conviction. Thus, the decision is consequential only in what it portends. It
declined to extend Wickard’s “substantial-effect”-on-interstate-commerce principle to the Foreign
Commerce Clause because it considered the principle untenable. Ensuing questions might include: Does it
thus invite challenges, at least in the Sixth Circuit where it is binding, to convictions under other statutes
whose vitality depends on the continued validity of the principle? Does it invite the Supreme Court to

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re-examine Wickard and its progeny? Does its critique of Missouri v. Holland extend a similar invitation
for Supreme Court reconsideration?
The panel decision loses its potency if the judges of the Sixth Circuit, assembled en banc, reverse it, or if
the Supreme Court subsequently repudiates its view. Otherwise, Congress may consider whether it wishes
to buttress those statutes that rely on the continued vitality of Missouri v. Holland, to say nothing of
Wickard and its progeny.

Author Information

Charles Doyle

Senior Specialist in American Public Law

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