United States v. Michael Lewis Clark

dissenting:

The Constitution cannot be interpreted according to the principle that the end justifies the means. The sexual abuse of children abroad is despicable, but we should not, and need not, refashion our Constitution to address it. The majority holds that “travel in foreign commerce, coupled with engagement in a commercial transaction while abroad, implicates foreign commerce to a constitutionally adequate degree.” Maj. op. at 1114. I respectfully disagree.

The Constitution authorizes Congress “[t]o regulate Commerce with foreign Nations.” Art. I, § 8, cl. 3. The activity regulated by 18 U.S.C. § 2423 (c), illicit sexual conduct, does not in any sense of the phrase relate to commerce with foreign nations. Rather, § 2423(c) is a criminal statute that punishes private conduct fundamentally divorced from foreign commerce. Article I, section 8, clause 3, while giving Congress broad authority over our commercial relations with other nations, is not a grant of international police power. I respectfully dissent from the majority’s assertion that the Commerce Clause authorizes Congress to regulate an activity with a bare economic component, as long as that activity occurs…

435 F.3d 1100 UNITED STATES of America, Plaintiff-Appellee, v. Michael Lewis CLARK, Defendant-Appellant. No. 04-30249. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 6, 2005. Filed January 25, 2006. Michael Filipovic, Assistant Federal Public Defender, Vicki W.W. Lai, Research and Writing Attorney, Federal Public Defender's Office, Seattle, WA, for the defendant-appellant. John McKay, United States Attorney, Helen J. Brunner, John J. Lulejian, Susan B. Dohrmann, Assistant United States Attorneys, Seattle, WA, for the plaintiff-appellee. Appeal from the United States District Court for the Western District of Washington; Robert S. Lasnik, District Judge, Presiding. D.C. No. CR-03-00406-L. Before HUG, FERGUSON, and McKEOWN, Circuit Judges. Opinion by Judge McKEOWN; Dissent by Judge FERGUSON. McKEOWN, Circuit Judge. 1 In this appeal we are confronted with a question of first impression regarding the scope of Congress's power under the Foreign Commerce Clause. 1 At issue is whether Congress exceeded its authority "to regulate Commerce with foreign Nations," U.S. Const. art. I, § 8, cl. 3, in enacting a statute that makes it a felony for any U.S. citizen…

In this appeal we are confronted with a question of first impression regarding the scope of Congress’s power under the Foreign Commerce Clause. 1 At issue is whether Congress exceeded its authority “to regulate Commerce with foreign Nations,” U.S. Const, art. I, § 8, cl. 3, in enacting a statute that makes it a felony for any U.S. citizen who travels in “foreign commerce,” i.e. to a foreign country, to then engage in an illegal commercial sex act with a minor. 18 U.S.C. § 2423 (c). We hold that Congress acted within the bounds of its constitutional authority.

Congressional invocation of the Foreign Commerce Clause comes as no surprise in light of growing concern about U.S. citizens traveling abroad who engage in sex acts with children. The United States reiterated its commitment to quelling sexual abuse abroad by signing The Yokohama Global Commitment 2001, available at http://www.unicef.org/events/ yokoha-ma/outcome.html (last visited Dec. 29, 2005), which was concluded at the Second World Congress Against the Commercial Sexual Exploitation of Children. The Commitment welcomes “new laws to criminalize [child prostitution], including provisions with extra-territorial effect.” Id.…