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 ...