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United States v. Durham

United States Court of Appeals, Tenth Circuit

August 29, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
MATTHEW LANE DURHAM, Defendant-Appellant.

          Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:14-CR-00231-R-1)

          Stephen Jones (Ashley Morey with him on the brief), Jones, Otjen, Davis & Bloyd, Enid, Oklahoma, for Defendant - Appellant.

          Steven W. Creager, Assistant United States Attorney (David P. Petermann, Assistant United States Attorney, and Mark Yancey, United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff - Appellee.

          Before HARTZ, MATHESON, and MORITZ, Circuit Judges.

          MATHESON, CIRCUIT JUDGE.

         TABLE OF CONTENTS

         I. BACKGROUND..........................................................................................2

         A. Factual Background................................................................................2

         B. Procedural Background...........................................................................6

         II. DISCUSSION.............................................................................................8

         A. Issue One: Constitutionality of 18 U.S.C. § 2423(c) under the Foreign Commerce Clause....................................................................8

         1. Section 2423(c) and Congress's Efforts to Combat Sex Trafficking .... 9

         a. Provisions of the statutory scheme..................................................10

         b. Early efforts to combat sex trafficking...........................................12

         c. Legislative history leading to passage of § 2423(c)........................14

         i. Enactment of § 2423(b)...............................................................14

         ii. Enactment of § 2423(c)..............................................................15

         2. The Commerce Clause.......................................................................18

         a. ICC case law...................................................................................19

         i. Channels......................................................................................19

         ii. Instrumentalities.........................................................................20

         iii. Substantial effect.......................................................................20

         b. FCC case law .................................................................................. 22

         3. Congressional Authority Broader Under the FCC than the ICC ......... 24

         a. History ............................................................................................ 25

         b. Text ................................................................................................ 26

         c. Purpose ........................................................................................... 28

         d. The dissent's view .......................................................................... 29

         i. Japan Line and the scope of FCC power ..................................... 30

         ii. Sovereignty of other nations ....................................................... 32

         iii. Summary ................................................................................... 36

         4. The Lopez Categories in the Foreign Commerce Context ................... 36

         a. The ICC's three categories as a starting point ................................. 37

         b. The substantial-effect category is applicable here .......................... 38

         c. Evolution of the third Lopez category ............................................. 38

         d. Adapting the third Lopez category to the FCC ................................ 42

         5. Constitutionality of § 2423(c) ............................................................ 43

         a. Section 2423(c)'s legislative history supports rational basis ........... 44

         b. Section 2423(c) is an essential part of a broader statutory scheme . 45

         c. Section 2423(c)'s jurisdictional element supports rational basis ..... 48

         d. Raich supports rational basis for § 2423(c) ..................................... 48

         e. Rational basis standard ................................................................... 52

         6. Legal Landscape ................................................................................. 54

         7. Conclusion ......................................................................................... 56

         B. Issue Two: Brady Claim ....................................................................... 57

         1. Additional Procedural Background .................................................... 57

         a. Trial testimony ................................................................................ 57

         b. Supplemental motion for new trial ................................................. 60

         2. Analysis ............................................................................................. 64

         a. Standard of Review ......................................................................... 64

         b. Legal Background .......................................................................... 64

         c. No prejudice for a Brady violation .................................................. 65

         C. Issue Three: Mr. Durham's Statements about Child Pornography and Homosexuality .......................................... 67

         1. Standard of Review ............................................................................ 68

         2. Additional Factual Background .......................................................... 68

         a. Evidence about child pornography and homosexuality ................... 68

         b. District court rulings ....................................................................... 69

         3. Legal Background .............................................................................. 71

         a. Rule 404(b) ..................................................................................... 71

         b. Rules 401 and 402 .......................................................................... 71

         c. Rule 403 ......................................................................................... 71

         4. Analysis ............................................................................................. 72

         a. Rule 404(b) ..................................................................................... 72

         b. Rules 401 and 402 .......................................................................... 73

         c. Rule 403 ......................................................................................... 74

         D. Issue Four: Prosecutorial Misconduct .................................................. 75

         1. Standard of Review ............................................................................ 75

         2. Additional Factual Background .......................................................... 76

         a. The Government's cross-examination of Mr. Durham .................... 76

         b. The Government's closing argument .............................................. 77

         3. Additional Procedural Background .................................................... 77

         4. Legal Background .............................................................................. 78

         5. Analysis ............................................................................................. 79

         a. Preservation .................................................................................... 79

         i. Alleged misconduct during cross-examination of Mr. Durham .... 79

         ii. Alleged misconduct during closing argument ............................. 80

         b. Plain error-substantial rights ........................................................ 80

         i. Alleged misconduct during cross-examination of Mr. Durham .... 81

         ii. Alleged misconduct during closing argument ............................. 81

         E. Issue Five: Cellphone Videos Authentication ....................................... 83

         1. Standard of Review ............................................................................ 84

         2. Additional Background ...................................................................... 84

         a. Pre-Trial ......................................................................................... 84

         b. Trial ................................................................................................ 87

         3. Legal Background .............................................................................. 88

         4. Analysis ............................................................................................. 89

         F. Issue Six: Victims' Medical Records .................................................... 90

         1. Standard of Review ............................................................................ 91

         2. Additional Background ...................................................................... 91

         3. Legal Background .............................................................................. 92

         a. Invited error .................................................................................... 92

         b. Authentication ................................................................................ 92

         c. The hearsay rule and pertinent exceptions ...................................... 92

         d. Unfair prejudice .............................................................................. 93

         4. Analysis ............................................................................................. 93

         G. Issue Seven: Substantive Reasonableness of Sentence ......................... 96

         1. Standard of Review ............................................................................ 96

         2. Additional Factual Background .......................................................... 97

         3. Legal Background ............................................................................ 100

         4. Analysis ........................................................................................... 101

         H. Issue Eight: Cumulative Error ............................................................ 103

         III. CONCLUSION ...................................................................................... 105

         Matthew Durham appeals his convictions and sentence on four counts for illicit sex with minors in Kenya after travelling there from the United States. This opinion addresses the following eight issues presented for appellate review.

1. Is 18 U.S.C. § 2423(c), the statute on which the convictions were based, unconstitutional on its face and as applied to Mr. Durham because it exceeds Congress's power under the Foreign Commerce Clause in Article 1, Section 8, Clause 3 of the Constitution? We hold that § 2423(c) is constitutional because Congress could rationally conclude that travel abroad followed by illicit sex with a minor, in the aggregate, substantially affects foreign commerce.
2. Did the district court err when it denied Mr. Durham's supplemental motion for a new trial alleging that the Government suppressed exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963)? We affirm because Mr. Durham has not shown that nondisclosure of the evidence prejudiced his case.
3. Did the district court err under Federal Rules of Evidence 401, 403, and 404(b) when it allowed admission of Mr. Durham's statements about his struggles with child pornography and homosexuality? We affirm. The district court did not abuse its discretion in determining the evidence was intrinsic, relevant, and not unduly prejudicial.
4. Did the district court err when it denied Mr. Durham's motion for a new trial alleging that the Government made improper statements about his struggle with homosexuality during cross-examination of Mr. Durham and during closing argument? We affirm under plain error review because Mr. Durham cannot show that the prosecutor's statements affected his substantial rights.
5. Did the district court err in admitting cellphone video recordings because they were not properly authenticated? We affirm. The district court did not abuse its discretion because the Government presented sufficient foundation evidence for authentication.
6. Did the district court err when it admitted the victims' entire medical records? We affirm because Mr. Durham invited any error and because his arguments alleging lack of authentication, inadmissible hearsay, and unfair prejudice do not show that the district court erred in admitting the records.
7. Did the district court abuse its discretion and impose a substantively unreasonable sentence when it sentenced Mr. Durham to 480 months in prison? We affirm because Mr. Durham cannot overcome the presumption that the district court reasonably weighed the sentencing factors under 18 U.S.C. § 3553(a) or show that its sentencing decision exceeds the bounds of permissible choice.
8. Should the convictions be reversed because the errors, considered cumulatively, deprived him of a fair trial? Mr. Durham cannot show that any errors that may be eligible for cumulative error review cumulatively affected his substantial rights.

         Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we therefore affirm Mr. Durham's convictions and sentence.

         I. BACKGROUND

         A. Factual Background

         On May 1, 2014, Mr. Durham, then 19 years old, arrived in Kenya on his fourth Christian missionary trip there. ROA, Vol. 12 at 1818 (TT 1204); ROA, Vol. 10a at 25.[1]In Kenya, he volunteered at the Upendo Children's Home ("Upendo"), where 33 children from impoverished backgrounds live. ROA, Vol. 12 at 695-97, 787 (TT 81-83, 173). Upendo Kids International, an Oklahoma non-profit founded and directed by Eunice Menja, operates Upendo. Id. at 787, 960 (TT 173, 346), Aplee. Br. at 3. Ms. Menja's sister, Josephine Wambugu, [2] is the manager of Upendo. ROA, Vol. 12 at 695, 788 (TT 81, 174).

         On his previous trips to Kenya, Mr. Durham had stayed with a host family, but on the fourth trip, he asked to stay at Upendo instead. Id. at 1811 (TT 1197). On June 12, 2014, Ms. Wambugu entered one of the girls' bedrooms and saw Mr. Durham lying on a bed with one of the girls. Id. at 705, (TT 91). When Ms. Wambugu came into the room, Mr. Durham left quickly. Id. at 705-06 (TT 91-92). Ms. Wambugu then spoke to some of the girls, who said they had "been doing bad manners" with Mr. Durham. ROA, Vol. 12 at 710-11 (TT 96-97). The children used "bad manners" to mean engaging in sexual acts. See id. at 662 (TT 48); 1412 (TT 798); 1443-44 (TT 829-30).

         On June 13, Ms. Menja, Ms. Wambugu, Jason Jeffries (another American volunteer at the home), and Tom Mutonga (a local supporter of Upendo) met with Mr. Durham at Upendo. Id. at 817, 825 (TT 203, 211). When he entered the meeting, Mr. Durham yelled, "You can fire me, fire me now." Id. at 825 (TT 211). Ms. Menja accused him of hurting the girls and asked for his response. Id. at 826 (TT 212). Mr. Durham said he did not remember, and asked to speak to Ms. Wambugu alone. Id. at 826-27 (TT 212-13).

         Once alone, he asked Ms. Wambugu to defend him, and she asked him whether he had done the acts reported by the girls. Id. at 723 (TT 109). He said, "Yes, I did it. Yes, I did." Id. at 723 (TT 109). But when he went back to talk to the group, Mr. Durham again said he could not remember assaulting the children. He added that he had been struggling with child pornography and homosexuality. Id. at 724, 828 (TT 110, 214). Ms. Menja told Mr. Durham she was going to take him to a different location, explaining that, for the safety of the children, she did not want him to stay at the children's home. Id. at 829 (TT 215). He spent the next three days at an empty house owned by Ms. Menja's father-in-law. Id. at 830 (TT 216). One of the volunteers had taken Mr. Durham's passport after hearing about the allegations. Id. at 1052 (TT 438).

         During his time away from Upendo, Mr. Durham sent his father text messages stating: "I don't want to live anymore" and "I hate myself. I deserve to burn in hell." ROA, Vol. 9 at 78 (Gov't Exh. 29). He sent a text to Ms. Menja saying: "Tell all the kids how sorry i am, and i am praying for their forgiveness every hour." Id. at 18 (Gov't Exh. 10) (errors in original).

         Mr. Durham's great-uncle arranged for Mr. Durham to fly back to Oklahoma. ROA, Vol. 12 at 1682-83 (TT 1068-69). On June 17, before he flew out, Mr. Durham met with Ms. Menja, Ms. Wambugu, and Mr. Mutonga at the Seagull restaurant. Id. at 855 (TT 241). Ms. Menja video recorded some of the ensuing conversation in multiple videos on her cellphone (the "Seagull Confession Videos"). Id. at 856 (TT 242). Mr. Durham knew that he was being recorded and asked that the video be kept on. Gov't Exh. 4 at 12:09. On the longest video, Ms. Menja asked Mr. Durham about the allegations. He responded that he had struggled with a "temptation to touch children and to be with other men." Gov't Exh. 4 at 1:55-2:01. When Ms. Menja started asking about specific children who had accused him of abuse, Mr. Durham admitted to assaulting those children. See, e.g., id. at 5:39-6:15.

         After Ms. Menja stopped recording the video, she said she could not listen any more, and Mr. Durham offered to write down his confession. ROA, Vol. 12 at 865 (TT 251). He wrote detailed statements about how he abused or otherwise engaged in inappropriate behavior with over ten of the children. ROA, Vol. 9 at 8-16. The following relate to three of the four charges of conviction and each concerns a different victim:

• "I would take her to the bathroom at night and hold her down and rape her. This happened on several occasions. I also made her watch me do things to [another girl]. I told her never to tell anyone, and that I loved her." ROA, Vol. 9 at 8 (Gov't Exh. 9)
• "I would take her to the bathroom and have her take off her clothes. I would touch myself and her. I don't know how many times it occurred. Also, when we had our sleepovers Friday night, [she] always made a point to sleep by me. I would spoon with her until I woke up." Id. at 15 (Gov't Exh. 9).
• "I took her to the bathroom and force[d] her to have sex with me. This happened on more than one occasion. I made her swear to never tell anyone . . . . Any time I try to read the bible or pray, this image comes to my [head]." Id. at 16 (Gov't Exh. 9).

         Ms. Wambugu next spoke to the Kenyan police, who told her they could not arrest Mr. Durham. ROA, Vol. 12 at 873-74 (TT 259-60). Ms. Menja returned Mr. Durham's passport to him, and he flew out of Kenya the night of June 17. Id. at 874-75 (TT 260- 61).

         Ms. Menja took six victims to a doctor the next day, June 18. Id. at 875 (TT 261). Medical workers examined them and determined five out of six had perforated hymens. Id. at 1187-88 (TT 574-75). Ms. Menja later reported what had happened to the U.S. Embassy. Id. at 875 (TT 261).

         B. Procedural Background

         Mr. Durham was arrested in the United States on July 18, 2014. ROA, Vol. 1 at 77. A grand jury returned an original indictment on August 5, 2014, charging three counts. Id. at 130-31. It later returned two superseding indictments. Id. at 248, 467. The second, the operative indictment, was returned in April 2015 and charged Mr. Durham with eight counts of interstate travel with intent to engage in a sexual act with a child, in violation of 18 U.S.C. § 2241(c), and eight counts of traveling in foreign commerce and engaging in illicit sexual conduct with a minor, in violation of 18 U.S.C. § 2423(c). Id. at 467-76. The indictment identified eight victims by their initials. Id. Mr. Durham also was charged with one count of traveling in foreign commerce with intent to engage in illicit sexual conduct in violation of 18 U.S.C. § 2423(b).

         Trial was held between June 10, 2015, and June 18, 2015. Five of the eight alleged victims testified, including the victims associated with each of the four convictions. ROA, Vol. 12 at 658, 1406, 1426, 1440, 1458. Dr. Alawiya Abdulkadir Mohamed, who prepared some of the medical documentation in Kenya, also testified for the prosecution. Id. at 1186-88 (TT 572-74). Mr. Durham's written and videotaped confessions and his text messages were admitted into evidence. Id. at 737, 857, 1248 (TT 123, 243, 634).

         Mr. Durham testified in his defense. ROA, Vol. 12 at 1792 (TT 1178). The defense also presented testimony from a professional counselor about forensic interviews with victims of sexual assault, id. 1506, 1515 (TT 892, 901), and from a sexual assault nurse examiner, Lisa Dunson, about the medical findings in the case, id. at 1581 (TT 967). Mr. Durham's mother, father, and great-uncle also testified in his defense. Id. at 1638, 1721, 1759 (TT 1024, 1107, 1145).

         The jury found Mr. Durham guilty on seven counts of traveling in foreign commerce and engaging in illicit sexual conduct with a minor in violation of 18 U.S.C. § 2423(c). ROA, Vol. 3 at 193-94. It found him not guilty of the remaining counts. Id. Mr. Durham moved for arrest of judgment, arguing that 18 U.S.C. § 2423(c) is unconstitutional. Id. at 229. He also moved for acquittal and a new trial. Id. at 277, 305. Mr. Durham supplemented his motion for a new trial when he learned the prosecution had failed to disclose information favorable to the accused during trial. Id. at 489.

         The district court denied the motions for arrest of judgment and a new trial. Id. at 752, 760, 776, 811. It granted acquittal on three of the § 2423(c) counts because the Government had not shown Mr. Durham engaged in "sexual conduct" as defined by the statute, but it denied acquittal on the other four counts. Id. at 762-67, 774-75.

         The final Presentence Investigation Report ("PSR") calculated a recommended sentence of 1, 440 months in prison under the United States Sentencing Guidelines (the "Guidelines"), based on Mr. Durham's total offense level and criminal history category. ROA, Vol. 7 at 142. This represented the statutory maximum of 30 years for each count of conviction, running consecutively. Id. at 142 n.3. The district court sentenced Mr. Durham to 480 months in prison, a sentence it characterized as a variance below the Guidelines range. ROA, Vol. 3 at 844; ROA, Vol. 7 at 477; ROA, Vol. 13 at 158.

         II. DISCUSSION

         Mr. Durham raises eight issues on appeal. As to each issue, we present the applicable standard of review and also provide additional factual, procedural, and legal background, as needed.

         A. Issue One: Constitutionality of 18 U.S.C. § 2423(c) under the Foreign Commerce Clause

         Mr. Durham challenges the constitutionality of 18 U.S.C. § 2423(c), arguing that Congress exceeded its authority under the Foreign Commerce Clause. See U.S. Const. art. I, § 8, cl. 3. Section 2423(c) makes it a crime for "[a]ny United States citizen or alien admitted for permanent residence [to] travel[] in foreign commerce . . . and engage[] in any illicit sexual conduct with another person." 18 U.S.C. § 2423(c). "Illicit sexual conduct" includes any commercial or noncommercial sexual act with a person under the age of 18, id. § 2423(f)(1)-(2), and the production of child pornography, id. § 2423(f)(3). Mr. Durham was charged under § 2423(c) for traveling abroad and engaging in noncommercial sexual acts with minors. He argues that, because noncommercial illicit sexual activity abroad has no relation to foreign commerce, the statute is unconstitutional on its face and as applied to him and his conviction therefore cannot stand.[3] We review his challenge de novo. United States v. Pompey, 264 F.3d 1176, 1179 (10th Cir. 2001) ("We review challenges to the constitutionality of a statute de novo." (quotations omitted)); see also People for Ethical Treatment of Prop. Owners v. U.S. Fish & Wildlife Serv. (PETPO), 852 F.3d 990, 1000 (10th Cir. 2017), cert. denied, 138 S.Ct. 649 (2018).

         We reject Mr. Durham's constitutional challenge to § 2423(c). Congress adopted this provision and several others in 2003 as part of a broad regulatory effort that started in 1907 to combat international sex trafficking. As the following discussion shows, Congress could reasonably conclude that United States citizens and permanent residents who, in the aggregate, travel to foreign countries and commit illicit sex acts there substantially affect foreign commerce. As a result, we must defer to congressional judgment and uphold § 2423(c).

         1. Section 2423(c) and Congress's Efforts to Combat Sex Trafficking

         Section 2423(c) makes it a crime for "[a]ny United States citizen or alien admitted for permanent residence [to] travel[] in foreign commerce . . . and engage[] in any illicit sexual conduct with another person." 18 U.S.C. § 2423(c). It is situated within a broad anti-sex trafficking statutory scheme that Congress constructed through a century of legislation. Congress attempted to address sex trafficking in the early 1900's by prohibiting the importation of women and girls for sexual exploitation. Expanding on these efforts, it enacted legislation for the prosecution of individuals who traveled abroad intending to engage in sex tourism. But proving intent was difficult. In response, Congress passed § 2423(c), which targets individuals who travel abroad and engage in illicit sexual conduct regardless of intent. When reviewed in historical context and the overall legislative scheme, Congress reasonably viewed § 2423(c) as playing an important role in its broader efforts to combat international sex tourism.

         The following discussion describes how § 2423(c) facilitates Congress's efforts to combat international sex tourism. We provide a brief overview of Chapter 117 in Title 18 of the United States Code, which contains 18 U.S.C § 2423 and other anti-trafficking provisions; chart the historical development of § 2423; and review the legislative history leading to the enactment of § 2423(c).

         a. Provisions of the statutory scheme

         Chapter 117 criminalizes various activities related to sex trafficking. See 18 U.S.C. §§ 2421-2428 (titled "Transportation for Illegal Sexual Activity and Related Crimes"). It generally prohibits the knowing transport of "any individual in interstate or foreign commerce . . . with [the] intent that such individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense." Id. § 2421 (titled "Transportation generally"). It also targets other activities that facilitate sex trafficking. See, e.g., id. § 2422 (coercion or enticement of individuals to engage in prostitution or illicit sexual activity); id. § 2424 (harboring individuals for purpose of prostitution); id. § 2425 (transmission of information to entice individuals into illicit sexual activity).[4]

         Title 18 U.S.C. § 2423, which falls within Chapter 117, deals specifically with the trafficking and sexual exploitation of minors. See id. § 2423 (titled "Transportation of minors"). Its seven provisions criminalize activities that involve illicit sexual contact with minors. See id. § 2423(a)-(g); see, e.g., id. § 2423(a) (the transportation of minors for prostitution or illicit sexual activity). Three of its provisions-§ 2423(b), § 2423(c), and § 2423(d)-address international sex tourism. Section 2423(b) makes it a crime to travel with the intent to engage in illicit sex. See id. § 2423(b). Section 2423(c) targets individuals who travel abroad and engage in illicit sex-regardless of intent. See id. §2423(c). Section 2423(d) targets businesses that "arrange[], induce[], procure[] or facilitate[] the travel of a person" intending to engage in illicit sexual conduct abroad for financial gain. Id. § 2423(d). "Illicit sexual conduct" includes commercial and noncommercial sex acts[5] with a "person under 18 years of age." Id. § 2423(f)(1)-(2).[6]

         b. Early efforts to combat sex trafficking

         Section 2423 developed through a century of legislation addressing international sex trafficking. In the early 1900's, Congress was concerned about the growing sex trafficking industry from Europe in particular. In 1907, it prohibited the "importation" of women or girls into the United States "for the purpose of prostitution, or for any other immoral purpose." Act of Feb. 20, 1907, Pub. L. No. 59-96, § 3, 34 Stat. 898, 899 ("1907 Act") (regulating "the immigration of aliens into the United States").[7] Congress recognized this practice as a "present-day existing evil of widespread dimensions" that must be stopped. S. Rep. No. 61-702, at 14 (1910).

         Two years later, congressional investigators released a report concluding that the 1907 Act had failed to stem sex trafficking into the United States. See Importing Women for Immoral Purposes, S. Doc. No. 61-196, at 33-36 (1909) (recommending a number of policy changes addressing the unsolved problem of sex trafficking); H.R. Rep. No. 61-47, at 12 (1909). The 1907 Act had focused on stopping the flow of trafficked women at the border, but it failed to address the problem of women passing through immigration channels undetected. See S. Doc. No. 61-196, at 33-34; see also Ariela R. Dubler, Immoral Purposes: Marriage and the Genus of Illicit Sex, 115 Yale L.J. 756, 787 (2006). The report recommended criminalizing the interstate transportation of women and girls for the purpose of prostitution. S. Doc. No. 61-196, at 36; see also H.R. Rep. No. 61-47, at 10 (explaining this change was necessary to prevent the "evil" of importing women from foreign nations; otherwise prostitution "can not [sic] be met comprehensively and effectively").

         In response, Congress passed the Mann Act of 1910, attempting to "put a stop to a villainous interstate and international traffic in women and girls." H.R. Rep. No. 61-47, at 9; see White-Slave Traffic (Mann) Act, Pub. L. No. 61-277, §§ 2-8, 36 Stat. 825, 825-27 (1910) (codified at 18 U.S.C. §§ 397-404 (1940)). Section 2 of the Mann Act prohibited the transportation of women or girls across state or international lines for the purpose of illicit sexual acts. See § 2, 36 Stat. at 825. It is the precursor of the current § 2423.[8]

          In 1978 and 1986, Congress broadened the provisions of the Mann Act to fight sex trafficking. In 1978, Congress expanded the law preventing the commercial sexual exploitation of girls to include all children. See The Protection of Children Against Sexual Exploitation Act of 1977, Pub. L. No. 95-225, § 3, 92 Stat. 7, 8 (1978) (codified at 18 U.S.C. § 2423(a)(1)-(2) (1982)); see also H.R. Rep. No. 99-910, at 4 (1986). But, as Congress acknowledged less than a decade later, the 1978 Act failed to address noncommercial exploitation-such as transporting children for the purpose of producing child pornography for private rather than commercial use. See H.R. Rep. No. 99-910, at 7. In response, Congress passed amendments in 1986 to encompass noncommercial sexual exploitation. Child Sexual Abuse and Pornography Act of 1986, Pub. L. No. 99-628, § 5, 100 Stat. 3510, 3511 (1986) (codified at 18 U.S.C. § 2423 (1988)).

         c. Legislative history leading to passage of § 2423(c)

         The next two major revisions to § 2423 occurred in 1994 and 2003. Congress added § 2423(b) and § 2423(c) to target sex tourism.

         i. Enactment of § 2423(b)

         In 1994, Congress enacted § 2423(b) as part of the Violent Crime Control and Law Enforcement Act of 1994 ("Violent Crime Act"), making it a crime for "a United States citizen . . . [to] travel[] in foreign commerce . . . for the purpose of engaging in any sexual act . . . with a person under 18 years of age . . . ." Pub. L. No. 103-322, § 160001(g), 108 Stat. 1796, 2037 (1994) (codified at 18 U.S.C. §§ 2423(a)-(b) (1994)). Its passage marked the first time Congress addressed sex tourism as part of its larger effort against international sex trafficking.

         Section 2423(b) originated from Senator Charles Grassley's amendment to the Violent Crime Act. In a floor statement, Senator Grassley explained that its purpose was to combat child prostitution in the multibillion dollar child pornography and international sex tourism industries. See 139 Cong. Rec. 30, 391 (1993). He recognized the problem of "Americans . . . travel[ing] overseas to places where children are readily available for purchase and abuse." Id. This practice, he noted, allowed for "profit from the rape of children." Id. at 30, 391-92. Representative Jim Ramstad, who proposed a similar amendment in the House, see The Child Sexual Abuse Prevention Act of 1994, H.R. 3993, 103rd Cong. (1994), explained in his floor statement that his amendment was intended to "strike a blow at 'pedophile sex tourism,' by making it a crime to travel overseas for the purpose of sexually abusing children." 140 Cong. Rec. 6, 073 (1994).

         ii. Enactment of § 2423(c)

         Section 2423(b)'s reach was limited to individuals who traveled abroad intending to engage in illicit sex acts. But proving intent was difficult. See H.R. Rep. No. 107-525, at 2 (2002). In 2003, Congress enacted § 2423(c) to permit the prosecution of individuals who travel abroad and engage in illicit sex acts-regardless of whether they intended to do so at the time of travel.

         Section 2423(c) was passed as part of the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 ("PROTECT Act"), which targeted various aspects of the sex tourism industry. See Pub. L. No. 108-21, § 105, 117 Stat. 650, 654 (2003) (codified at 18 U.S.C. §§ 2423(b)-(g) (2006)). Section 2423(c) adopted language from a previous bill-the Sex Tourism Prohibition Improvement Act of 2002 ("STPIA")-which had failed to pass, but its history helps in understanding § 2423(c). See Child Abduction Prevention Act and the Child Obscenity and Pornography Prevention Act of 2003: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Sec. of the H. Comm. on the Judiciary, 108th Cong. 25 (2003) ("Hearings").[9] A House Judiciary Committee Report on STPIA noted that a large number of developing countries had "fallen prey to the serious problem of international sex tourism." H.R. Rep. No. 107-525, at 2. It acknowledged that § 2423(b)'s intent requirement limited the law's effectiveness. Id. at 3, 13. Eliminating the intent requirement, it found, would "close significant loopholes in the law [regarding] persons who travel to foreign countries seeking sex with children." Id. at 3.[10]

         STPIA's language was incorporated into the PROTECT Act and ultimately became law in § 2423(c). The sponsor of § 2423(c), Representative Jim Sensenbrenner, who authored § 2423(c) in both the PROTECT Act and STPIA, explained that sex tourism supported one of the "fastest growing areas of international criminal activity"- human trafficking. 149 Cong. Rec. 7, 625 (2003). The PROTECT Act's purpose was to curb that industry by punishing "persons who travel to foreign countries to engage in illegal sexual relations with minors." Id. at 7, 633. But unlike § 2423(b), it would do so by criminalizing this conduct, "regardless of what [the perpetrator's] intentions may have been when he left the United States." Hearings at 25 (statement of Daniel P. Collins, Associate Deputy Att'y Gen., U.S. Dep't of Justice). Congress thus passed § 2423(c) to fill the enforcement gap created by § 2423(b)'s intent requirement.

         In sum, Congress has worked to combat sex trafficking-particularly of minors- for over a century, developing a statutory scheme targeting sexual exploitation for both commercial and noncommercial purposes. Part of this effort included passage of § 2423(b), which made it a crime to travel abroad intending to have illicit sex. Because the intent requirement limited the statute's effectiveness, Congress passed § 2423(c) to allow for prosecution regardless of intent. Congress viewed this provision as a critical part of its broader efforts to combat the multibillion dollar international sex trafficking market.[11]

         2. The Commerce Clause

         The Commerce Clause delegates power to Congress "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const. art. I, § 8, cl. 3. The following discussion summarizes the Supreme Court's case law on the Interstate Commerce Clause ("ICC") and Foreign Commerce Clause ("FCC"). Although there is "rich case law interpreting the [ICC], the Supreme Court has yet to examine the [FCC] in similar depth." United States v. Bollinger, 798 F.3d 201, 209 (4th Cir. 2015), cert. denied, 136 S.Ct. 2448 (2016); see also United States v. Clark, 435 F.3d 1100, 1102 (9th Cir. 2006) (noting the FCC's "scope has yet to be subjected to judicial scrutiny").

         a. ICC case law

         The Supreme Court has recognized that the ICC empowers Congress to regulate (1) the channels of interstate commerce, (2) the instrumentalities of interstate commerce, and (3) activities that substantially affect interstate commerce. United States v. Lopez, 514 U.S. 549, 558-59 (1995); Perez v. United States, 402 U.S. 146, 150 (1971).

         In Lopez, the Court considered whether Congress exceeded its authority under the ICC when it prohibited guns near schools in the Gun-Free School Zones Act. See Lopez, 514 U.S. at 551. The Court explained that Congress's power to regulate commerce among the states is broad, but federalism concerns limit it. Congressional power "may not be extended so as to . . . obliterate the distinction between what is national and what is local." Id. at 557 (quotations omitted). "[The ICC's scope] must be considered in the light of our dual system of government." Id. (quotations omitted). The Court laid out the three categories of regulation, demarcating the ICC's outer limits. See id. at 557-59.

         i. Channels

         Congress may regulate the channels of interstate commerce. United States v. Patton, 451 F.3d 615, 620 (10th Cir. 2006). It may prohibit the transportation of goods and people in interstate channels, effectively halting their interstate movements. See, e.g., Caminetti v. United States, 242 U.S. 470 (1917) (upholding statute prohibiting the interstate transportation of women for "immoral" purposes); Champion v. Ames, 188 U.S. 321 (1903) (upholding statute prohibiting the transportation of lottery tickets across interstate lines). Congress need not be motivated by commercial concerns; it may also stop the movement of goods and people to prevent immoral or injurious activities. See, e.g., United States v. Darby, 312 U.S. 100 (1941) (upholding a ban on the "injurious" transportation of goods produced in substandard labor conditions).

         ii. Instrumentalities

         Congress may regulate the instrumentalities of interstate commerce, or the "means of interstate commerce, such as ships and railroads." Patton, 451 F.3d at 621 (citing Lopez, 514 U.S. at 558; Perez, 402 U.S. at 150). Regulation "may extend to intrastate activities that threaten these instrumentalities," such as criminalizing the destruction of a grounded aircraft. Id. at 622.

         Congress also may regulate "the persons or things that the instrumentalities are moving," such as criminalizing the theft of goods from an interstate carrier, like a train. Id. But "not all people and things that have ever moved across state lines" qualify as permissible targets of regulation. Id. The regulation of goods and people extends only to the duration of their transport. See id. Thus, under this category, Congress may regulate goods or people while they are on a ship or plane, but not necessarily once they are unloaded or disembark.

         iii. Substantial effect

         Finally, Congress may regulate activity-including intrastate activity-that "substantially affects" interstate commerce. Lopez, 514 U.S. at 559. The Court has upheld, for example, federal regulation of intrastate coal mining, see Hodel v. Va. Surface Min. & Reclamation Ass'n, 452 U.S. 264 (1981); intrastate public accommodation practices, see Katzenbach v. McClung, 379 U.S. 294 (1964); and homegrown wheat production, see Wickard v. Filburn, 317 U.S. 111 (1942). In each instance, the Court determined the laws under review regulated activity that had a substantial effect on interstate commerce. In making such a determination, courts need decide only whether Congress had a "rational basis" that such activities substantially affect interstate commerce. Gonzales v. Raich, 545 U.S. 1, 22 (2005) (quotations omitted).

         In deciding whether federal legislation is constitutional under the ICC, courts consider congressional findings or the legislative record regarding the effect of a regulated activity. See id. at 21. Legislative findings, however, are neither necessary nor determinative in a court's rational-basis decision. See United States v. Morrison, 529 U.S. 598, 612 (2000) (congressional findings are helpful, but not required nor sufficient for upholding a statute); Raich, 545 U.S. at 21 (particularized findings not necessary).

         In assessing a regulated activity's effect on interstate commerce, courts need not examine the activity in isolation, but may aggregate it. For example, courts may consider the effect of not just one farmer's wheat production on the national grain market, but may consider the cumulative effect of all farmers' production. See Wickard, 317 U.S. at 127-28. But courts should do so when the activity is economic as opposed to noneconomic. See Morrison, 529 U.S. at 613 (holding that the effect of domestic violence, a noneconomic activity, could not be considered in the aggregate).[12] The economic-noneconomic distinction arises from federalism concerns and serves to preserve "what is truly national and what is truly local." Lopez, 514 U.S. at 567-68. Courts would otherwise "pile inference upon inference" to determine a regulated activity substantially affects commerce. Id. at 567.

         Finally, courts also consider whether the statute contains an express jurisdictional element relating to interstate commerce. Id. at 561. Congress may explicitly "require an additional nexus to interstate commerce" in its statute. Id. at 562. For example, a statute that criminalizes the possession of a firearm that has traveled in interstate commerce contains an express jurisdictional element because violation of the statute hinges on the firearm's connection to interstate commerce. Id. (using what was formerly 18 U.S.C. § 1202(a) as an example).

         b. FCC case law

         Under the FCC, Congress may regulate commerce "with foreign Nations." U.S. Const. art. I, § 8, cl. 3. There is "precious little case law" on the FCC. United States v. Pendleton, 658 F.3d 299, 307 (3d Cir. 2011); see Clark, 435 F.3d at 1102 (noting "[c]ases involving the reach of the [FCC] . . . are few and far between"). Two Supreme Court cases, however, provide some guidance.

         First, in Board of Trustees of University of Illinois v. United States, 289 U.S. 48 (1933), the Court upheld a federal tariff under the FCC. The University of Illinois argued that the tariff interfered with its importation of goods and was thus unconstitutional. Id. at 56. The Court disagreed, holding that Congress had acted within its "constitutional authority to regulate Commerce with foreign nations," id. (quotations omitted), which includes imposing duties on imports, "pass[ing] embargo and non-intercourse laws," and making "all other regulations necessary to navigation, to the safety of passengers, and the protection of property," id. at 58 (quotations omitted). This power "comprehend[s] every species of commercial intercourse between the United States and foreign nations," id. at 56 (quoting Gibbons v. Ogden, 22 U.S. 1, 193 (1824)), and is "exclusive and plenary," id.

         The Court further explained that the federalism constraints limiting Congress's ICC power do not apply in the FCC context. "The principle of duality in our system of government does not touch the authority of Congress in the regulation of foreign commerce." Id. at 57. The university had argued that the Constitution prohibited the taxation of state entities, in particular that federal taxation "is subject to the constitutional limitation that the Congress may not tax so as to impose a direct burden upon an instrumentality of a state used in the performance of a governmental function." Id. at 57-58. The tariff, however, was not a tax passed under the Congress's taxing power, but was instead a regulation passed under its FCC power. Because "the immunity of state instrumentalities . . . [was] implied from the necessity of maintaining our dual system," this constitutional limitation did not extend to statutes regulating foreign commerce. Id. at 59. Rather, as in international relations, the "United States act[s] through a single government with unified and adequate power" in the foreign commerce arena. Id.

         Second, in Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434 (1979), the Court struck down California's property tax on shipping containers as a violation of the dormant FCC.[13] Japan Line, a Japanese shipping company, owed more than $550, 000 in taxes on its shipping containers under California law. Id. at 437. The company challenged the state tax's constitutionality. Id. at 440-41. It argued that because the containers traveled only in foreign commerce, they were foreign instrumentalities-as opposed to interstate instrumentalities-and the dormant FCC protected foreign commerce from state interference such as the California tax. See id. at 437-38. The Court agreed with Japan Line and concluded the state tax "may impair federal uniformity in an area where federal uniformity is essential." Id. at 448. Normally, if a state tax is "applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, [and] does not discriminate against interstate commerce, . . . no impermissible burden on interstate commerce will be found." Id. at 444-45 (quotations omitted). State taxes on foreign entities are different, however, because there is a "need for uniformity in treating with other nations." Id. at 448. States imposing their own taxes might create "asymmetry in the international tax structure," and foreign governments may retaliate in their trade policies with the United States. Id. at 450. Compared with the ICC, "the Founders intended the scope of the foreign commerce power to be the greater," id. at 448, and thus states are more likely to offend the FCC-rather than the ICC-with their taxation policy, see id. at 448-49. California's tax was therefore unconstitutional under the dormant FCC. Id. at 453-54.

         3. Congressional Authority Broader Under the FCC than the ICC

         "[The] scope [of the FCC] has yet to be subjected to judicial scrutiny." Clark, 435 F.3d at 1102. This section compares the boundaries of congressional authority under the FCC and the ICC. It describes how the FCC, unconstrained by federalism considerations, provides Congress broader authority to regulate commerce than the ICC.

         Congressional authority under the FCC is broad because Congress must speak with "one voice" in the foreign commerce context. Japan Line, 441 U.S. at 449 (quotations omitted). Moreover, as the dissent appears to agree, federalism limits congressional authority under the ICC, but not the FCC. See Dissent Op. at 27. And, as the Supreme Court has stated, "[a]lthough the Constitution, Art. I, § 8, cl. 3, 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, 441 U.S. at 448; see also Atl. Cleaners & Dyers v. United States, 286 U.S. 427, 434 (1932) ("[Congressional] power when exercised in respect of foreign commerce may be broader than when exercised as to interstate commerce.").

         Because the FCC concerns commerce "with foreign Nations"-as opposed to commerce "among the several States"- the federalism considerations that constrain Congress's authority under the ICC do not apply to the FCC, which therefore confers broader authority on Congress. Bd. of Trustees, 289 U.S. at 57 ("The principle of duality in our system of government does not touch the authority of Congress in the regulation of foreign commerce."). History, text, and purpose support this conclusion.

         a. History

         For the Founders, expansive congressional control over foreign commerce was imperative. They wanted the federal government to have enough authority to promote foreign commerce, which comprised most of the early American economy. See Scott Sullivan, The Future of the Foreign Commerce Clause, 83 Fordham L. Rev. 1955, 1962-65 (2015). An 1877 report from the Treasury Department noted that at the time of the founding, "our foreign commerce . . . attracted public attention much more than did the comparatively small internal commerce." Joseph Nimmo, Jr., Department of Treasury, Report on the Internal Commerce of the United States 8 (1877). Under the Articles of Confederation, state interference had disrupted foreign commerce, and federal power to tax and to regulate commerce was completely absent. See Sullivan at 1962-64. States circumvented federal trade agreements with foreign nations by negotiating their own. Id.

         Because foreign commerce was so vital to the American economy, the Founders sought to bolster federal power over international trade and ensure that the federal government could "speak with one voice when regulating commercial relations with foreign governments." Japan Line, 441 U.S. at 449 (quotations omitted). The FCC was designed as the "great and essential power" that the ICC merely "supplement[s]." The Federalist No. 42, at 283 (James Madison) (J. Cooke ed. 1961); see also United States v. Baston, 818 F.3d 651, 668 (11th Cir. 2016), cert. denied, 137 S.Ct. 850 (2017).

         b. Text

         The FCC's text reflects the Founders' objective to provide broader authority than under the ICC. Again, the Commerce Clause delegates power to Congress "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const. art. I, § 8, cl. 3 (emphases added). The difference between "with" and "among" affects the scope of the FCC and the ICC. See Sullivan at 1966-67 (describing how the difference allows states to retain some lawmaking authority under the ICC, but Congress retains full authority under the FCC and Indian Commerce Clause).

         In Gibbons v. Ogden, the Supreme Court discussed the word "among" when it acknowledged that Congress may regulate intrastate activity under the ICC. 22 U.S. 1, 194 (1824). It said "[t]he word 'among' means intermingled with," and "[c]ommerce among the States[] cannot stop at the external boundary line of each State, but may be introduced into the interior." Id. But the Court also recognized limits to ICC authority. "Comprehensive as the word 'among' is, it may very properly be restricted to that commerce which concerns more States than one." Id. The word "among" restricts Congress from regulating "those [internal concerns] which are completely within a particular State." Id. at 195; see also Lopez, 514 U.S. at 553 ("The Gibbons Court . . . acknowledged that limitations on the commerce power are inherent in the very language of the Commerce Clause.").

         After its discussion of commerce "among the several States," the Gibbons Court contrasted commerce "with foreign nations." Gibbons, 22 U.S. at 195. "[I]n regulating commerce with foreign nations, the power of Congress does not stop at the jurisdictional lines of several States." Id. Though the Court did not elaborate on the word "with," it pointed to the textual difference in the two clauses. "Among" in the ICC restrains Congress in regulating intrastate matters-a restraint not present in the FCC.

          Both the FCC and the Indian Commerce Clause contain the preposition "with," and the Court has drawn comparisons between the two. The Indian Commerce Clause provides broad "plenary power" to Congress in regulating commerce with Indian tribes. United States v. Lara, 541 U.S. 193, 200 (2004) (quotations omitted). The Court has recognized a similar breadth of authority under the FCC. "The power to regulate foreign commerce is certainly as efficacious as that to regulate commerce with the Indian tribes." Buttfield v. Stranahan, 192 U.S. 470, 493 (1904); see also United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 194 (1876) ("Congress now has the exclusive and absolute power to regulate commerce with the Indian tribes[]-a power as broad and as free from restrictions as that to regulate commerce with foreign nations.").[14]

         c. Purpose

         Both the FCC and the ICC empower Congress to address national interests, but federalism concerns do not constrain the FCC as they do the ICC. The ICC's purpose is to enable Congress to regulate interstate commerce in a federal system. It empowers Congress to regulate on behalf of national economic concerns as long as the regulation does not interfere with "truly local" affairs. Lopez, 514 U.S. at 568. The ICC permits Congress to ensure that "[i]nterstate trade [i]s not left to be destroyed or impeded by the rivalries of local government," The Shreveport Rate Case, 234 U.S. 342, 350 (1914), but federalism concerns cabin Congress's power to regulate. "[T]he scope of the interstate commerce power must be considered in the light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them . . . would effectually obliterate the distinction between what is national and what is local . . . ." Lopez, 514 U.S. at 557 (quotations omitted).

         The FCC's purpose is to enable Congress-and thus the nation-to speak with one voice on international matters. "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 Trustees, 289 U.S. at 59. Unlike with the ICC, federalism concerns do not limit FCC authority. See Japan Line, 441 U.S. at 448 n.13 (stating that "Congress'[s] power to regulate foreign commerce" is not limited by "considerations of federalism and state sovereignty").

         d. The dissent's view

         The dissent questions whether congressional authority is broader under the FCC than the ICC. See Dissent Op. at 27. It concedes that the FCC is broader than the ICC in certain situations. See id. at 21. But it disagrees we have such a situation here. First, it argues that the FCC's scope is broader only when applied to restricting state regulation in the dormant FCC context. Second, it argues that the sovereignty of other nations constrains FCC authority.[15]

         i. Japan Line and the scope of FCC power

         The dissent attempts to limit Japan Line's statement that the "scope of the foreign commerce power [is] greater" than the interstate power. Japan Line, 441 U.S. at 448. It appears to argue that any suggestion in Japan Line that the FCC delegates broader authority to Congress than the ICC is limited to the context of that case-a dormant commerce doctrine challenge to state regulation. See Dissent Op. 16-18. Distinguishing between the FCC's grant of "congressional power to regulate" and the dormant FCC's "restriction on the States" to legislate, id. at 17, the dissent argues that the Court in Japan Line examined the latter, not the former. But the scope of FCC authority is the same regardless of whether a case involves a challenge to a state's power to regulate commerce or to the federal government's power to legislate. Supreme Court precedent makes this clear.

         By way of background, the Constitution does not contain a dormant Commerce Clause. The doctrine derives from the Commerce Clause itself, which provides that "Congress shall have [the] power . . . [t]o regulate commerce . . . among the several States." U.S. Const. art. I, § 8, cl. 3. As to matters within the scope of the Commerce Clause power, Congress may choose to regulate, thereby preempting the states from doing so, see Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 96-98 (1992); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947), or to authorize the states to regulate, see In re Rahrer, 140 U.S. 545, 555-56 (1891); Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 429-31 (1946).

         If Congress is silent-neither preempting nor consenting to state regulation-and a state attempts to regulate in the face of that silence, the Supreme Court, going back to Gibbons, 22 U.S. at 236-37 (1824) (Johnson, J., concurring), and Cooley v. Bd. of Port Wardens, 53 U.S. 299, 318-19 (1851), has interpreted the Commerce Clause to limit state regulation of interstate commerce by applying the negative implications of the Commerce Clause-"these great silences of the Constitution," H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 535 (1949); see White v. Mass. Council of Constr. Emp'rs, Inc., 460 U.S. 204, 213 (1983). Accordingly, the Commerce Clause is both an express grant of power to Congress and an implicit limit on the power of state and local government. See Comptroller of the Treasury of Md. v. Wynne, 135 S.Ct. 1787, 1794 (2015); Kleinsmith v. Shurtleff, 571 F.3d 1033, 1039 (10th Cir. 2009). The dormant Commerce Clause doctrine extends to state regulation that may conflict with Congress's foreign commerce regulatory authority. See, e.g., Japan Line, 441 U.S. 434.

         When the Supreme Court has considered dormant commerce doctrine challenges to state regulation, it has recognized that the scope of Congress's affirmative powers under the Commerce Clause and the scope of commerce subject to the dormant Commerce Clause are coextensive. See, e.g., Lewis v. BT Inv. Managers, Inc., 447 U.S. 27, 39 (1980); Philadelphia v. New Jersey, 437 U.S. 617, 622-23 (1978). It follows, contrary to the dissent, that if the Supreme Court, in a dormant Commerce Clause case, recognizes, as it did in Japan Line, that the FCC confers broader authority on Congress than the ICC, then Congress's authority is broader under the FCC in general.

         The dissent is correct that the Court in Japan Line "did not say that the term commerce has a broader meaning in the foreign-commerce context," Dissent Op. at 16, but it did say "the Founders intended the scope of the foreign commerce power to be greater," Japan Line, 441 U.S. at 448. The Court's statement thus sheds light on the FCC's outer limits for both its grant of congressional authority and its restriction on states.

         ii. Sovereignty of other nations

         Although the dissent concedes that state sovereignty does not limit the FCC, it "reject[s] the notion that . . . the power under the [FCC] to regulate conduct in foreign nations is unconstrained," Dissent Op. at 27, and suggests that the sovereignty of other nations limits the FCC. The dissent presents no relevant authority-text, history, or precedent-that the sovereignty of foreign nations limits Congress's authority under the FCC.

         An enumerated power both confers and constrains legislative authority. See Richard Primus, The Limits of Enumeration, 124 Yale L.J. 576, 578 (2014). Internal limits "are the boundaries of Congress's powers taken on their own terms," id., that is, based on the language of the text itself. For example, an internal limit on Congress's power under the Commerce Clause is the meaning of the word "commerce." By contrast, external limits "are affirmative prohibitions that prevent Congress from doing things that would otherwise be permissible exercises of its powers." Id. Federalism and the Bill of Rights, for example, externally limit legislative authority under the Constitution's enumerated powers. See, e.g., Lopez, 514 U.S. at 557 ("[T]he scope of the interstate commerce power must be considered in the light of our dual system of government." (quotations omitted)); New York v. United States, 505 U.S. 144, 156 (1992) ("[U]nder the Commerce Clause Congress may regulate publishers engaged in interstate commerce, but Congress is constrained in the exercise of that power by the First Amendment.").

         First, the FCC is an enumerated power and therefore defines and limits that power by its own terms. The FCC's internal limits derive from the words "commerce," "regulate," and "with foreign nations."[16] The Framers did not think, nor do we, that the FCC conferred "plenary power to police the behavior of Americans in foreign countries." Dissent Op. at 23. The power to regulate foreign commerce, like all of Congress's enumerated powers, "[is] defined, and limited." Marbury v. Madison, 5 U.S. 137, 176 (1803). But because federalism concerns do ...


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