As the New York Sun puts it,

A federal appeals court panel yesterday upheld the government's authority to punish Americans for patronizing child prostitutes overseas.

I think the majority was right to hold (over Judge Ferguson's dissent) that this was within Congress's Foreign Commerce Clause power, and I said this to the reporter; but I was a little amused about how the quote was rendered (quite accurately and in context, I should stress, but nonetheless with an odd double entendre):

Mr. Volokh rejected Judge Ferguson's argument that an American paying for sex abroad hasn't engaged in international commerce. "That's quintessentially commerce with a foreign nation," he said.

Let me just state, for the record, that I think it's the paying that makes an American citizen's prostitution transaction with a foreign citizen in a foreign country "foreign commerce." (I understand "commerce with foreign nations" to include commerce with the citizens of foreign nations, at least when the commerce is itself in a foreign place, and not just with the foreign nations' governments.) I do not think that it's the sex itself that qualifies as commerce — or for that matter as a violation of the Non-Intercourse Act.

Professor Frink:
Could Congress pass a law under its commerce clause powers prohibiting residents of one state from traveling to another state for the purpose of purchasing widgets? This is quintessentially interstate commerce, no?
1.27.2006 3:22pm
Milhouse (www):
More than that - could Congress forbid people who have travelled interstate for non-commercial reasons from engaging in commerce while they are there?

Eugene, do you really think that "commerce with foreign nations" includes transactions that occur entirely within the territory of a foreign nation, for goods or services to be consumed in that country, just because one party happens to be a USAn citizen? What if he wasn't a citizen, but merely a resident? And how about transactions entirely between foreigners, taking place in foreign countries — a Russian buys something from a German, in Germany, does the Constitution authorise Congress to regulate that transaction?

It seems obvious to me that the foreign commerce clause only covers transactions where one of the parties is physically in the USA at the time, or where the goods or services sold are, as part of the transaction, to be imported into or exported from the USA.
1.27.2006 3:32pm
Perhaps Congress could eliminate overseas child labor and sweatshops. Could Congress regulate the working conditions under which goods are produced in other countries if those goods are produced with the intention of importing them into this country? If Congress could not do that directly, could it do it indirectly by requiring the person importing the goods into the U.S. to investigate and certify that overseas production facilities satisfy minimum working condition requirements set by Congress?
1.27.2006 3:50pm
John Armstrong (mail):
Let me just state, for the record, that I think it's the paying that makes an American citizen's prostitution transaction with a foreign citizen in a foreign country "foreign commerce."

So if the renowned Mr. Hypothetical (U.S. Citizen) visits his cousin M. Hypothetique in Thailand, and M. Hypothetique treats him to a visit with a child prostitute that would be different?
1.27.2006 4:04pm
Ian Samuel (mail) (www):
I think Congress could constitutionally prohibit residents of the U.S. from traveling to Nevada and gambling there, under this reasoning.
1.27.2006 4:04pm
Legal Thoughts (mail):
All of the hypos posed above are solid. I'll add my own to the mix. Under the Ninth Circuit's logic, why can't Congress bar U.S. citizens from purchasing marijuana while on vacation in the Netherlands? I would say that it can, which might just make the Ninth Circuit's decision into Raich (international version).
1.27.2006 4:12pm
Dick King:

Eugene, do you really think that "commerce with foreign nations" includes transactions that occur entirely within the territory of a foreign nation, for goods or services to be consumed in that country, just because one party happens to be a USAn citizen?

This isn't as bright a line as you might think.

I would certainly argue that a person who went abroad to have surgery was having commerce with a foreign nation, whether or not the surgery was of a type that left some surgical appliances in hir body.

There are substantial high-end services being done abroad. Although I admit that in these cases there's a handle to regulate these companies by regulating the operation of the equpment they work on after it comes back, that seems a bit artificial and likely to be too cumbersome in practice for anything smaller and less regulated than an aircraft.

Yes, in the cited situations [there are two links above] the spare parts come back with the machines, but that can be worked around if it's worthwhile by having the customer bring hir own parts.

1.27.2006 4:16pm

I couldn't find the name (or docket # ?) of this case. Does anyone know it?

I tried to use findlaw, but I'm not a lawyer... so I couldn't really make sense of it.

1.27.2006 4:33pm
Dilan Esper (mail) (www):
I think that the paying element makes the case an easy case-- if the foreign commerce clause means anything, it means that the government can regulate commercial transactions between people or entities who reside in the US and people or entities abroad. (I might draw an exception where the purpose of the regulation is not to restrict commerce but to restrict travel entirely, though I have to admit that the Supreme Court held that even that falls within the federal government's power in the cases involving the Cuban embargo.)

In response to the other commenters, yes, Congress can prohibit people from crossing state lines to purchase something. Even those with the most circumscribed view of the Commerce Clause (such as Justice Thomas) except this. The classic example of this is the Mann Act, which prohibited the transportation of women across state lines for an "immoral" purpose-- it was sustained against Commerce Clause challenges at a time when the Court's view of federal power was a lot more limited than it is now.

Having said all that, I actually would go a little farther than Professor Volokh does. As I said, the paying element makes it an easy case. But "commerce" doesn't just mean an exchange of something for money. Just as interstate non-economic activity can sometimes be regulated under the domestic Commerce Clause (albeit subject to somewhat more exacting scrutiny), non-economic transactions between Americans and foreigners can surely be regulated. Congress has broad power to regulate the conduct of Americans abroad, so long as that regulation doesn't violate any of the restrictions in the Bill of Rights or some other restriction on Congressional power. To take an example that conservatives and libertarians may be able to appreciate, Congress can prohibit an American citizen with a security clearance from disclosing state secrets abroad, even if no money changes hands. What power does that fall under, if not the foreign commerce clause?

Accordingly, Congress probably has the power to prohibit Americans from having sexual relations with underage girls in foreign countries, subject only to whatever strictures that Lawrence v. Texas imposes.
1.27.2006 4:51pm
magoo (mail):
The case is US v. Clark, No. 04-30249 (9th Cir Jan 25, 2006). Check the circuit website for the opinion.
1.27.2006 5:02pm
Don't forget the famous definition of commerce from Gibbons v. Ogden: "intercourse."
1.27.2006 5:43pm
Houston Lawyer:
So the definition of foreign commerce is the same as interstate commerce. So Congress can regulate anything a person purchases worldwide, other than pornography, abortion or sodomy, our three most precious rights.
1.27.2006 6:14pm
Sam (mail):
My understanding (not a lawyer) is that the US is unusual in that it believes its laws applies to its citizens wherever they are in the world, while most countries don't attempt to apply its laws to people beyond its borders.
1.27.2006 6:57pm
Daedalus (mail):
No being a lawyer, or a law professor, I am not certain how engaging in a very despicable act overseas falls under the umbrella of Congress. There can be no excuse for the act, but for Congress to say they regulate that, says they can also prosecute you for getting drunk, and a myriad of other acts which individuals seem to engage in while overseas.....

When will this total assault on our liberties end....
1.27.2006 8:14pm
Dilan Esper (mail) (www):
Sam and Houston:

I understand your trepidation in embracing the idea that under the foreign commerce clause, Congress has near-plenary authority to regulate the conduct of US citizens and residents abroad. But you need to remember several things about this:

1. The foreign commerce power is a LIMITATION on individual states' power to regulate foreign affairs. Thus, either Congress does it or nobody does it. Concentrating the power in Congress' hands actually means it gets exercised less often and also means that US citizens and residents are less likely to be subjected to the laws of several different states when conducting commerce abroad.

2. Just because Congress has this power does not mean that it exercises it. Indeed, Congress has not seen fit to make the vast majority of illegal acts within this country illegal when done by US citizens and residents in other countries-- even such heinous acts as murder and armed robbery. If Congress' exercise of its power metastatized, the way it has with the definition of ordinary crimes within the US as federal offenses, this could be a problem. But there's no evidence that this has happened or is going to happen. It happens that the issue of child prostitution is a serious issue and one that uniquely requires congressional action, in that so many "sex tourists" are Americans and foreign countries' effectiveness at policing the activity has not been optimal.

3. I don't think that it is unusual for nations to believe they have the power to legislate with respect to the extraterritorial actions of their citizens. Indeed, I would bet that most governments believe that they have that power. It may be that other governments do not regularly exercise that power, but I see no sign that ours does either.
1.27.2006 8:25pm
Wintermute (www):
Hey, it's Sociology 101 that the holders of long-term sexual contracts (wives) use the criminal law, especially after Women's Suffrage, to punish short-term sexual contracts (prostitution). Extending the reach of US law abroad in this context also involves creation of a Congressionally legislated age of consent to be applied to our citizens traveling abroad. I gathered some research on the interesting subject of "The Age of Consent" in a post a while back. Read it and learn how young that used to be in the old USA.
1.28.2006 1:46am
Conrad (mail):
I'm a expat US citizen who's been living and working in Asia for 5 years, with no intention of ever returning. It comes as quite a revelation to learn that when I shop at the local market, pick up my dry cleaning, take a taxi to work, or buy a newspaper, I'm engaged in international commerce.

On the other hand, I've seen pre-pubescent girls being sold on the streets in Cambodia; I know a Filipina whose mother sold her virginity to a foreigner at 16; I've done pro-bono work for anti-trafficking NGOs and heard stories that made my skin crawl.

So I say, if we can stretch the Constitution to make buggering one's boyfriend a fundamental right and smoking a home grown joint to relieve glaucoma a crime, then what the hell, I can damned sure live with us stretching it a little bit further to put away the dispicable bastards buying chldren's bodies.
1.28.2006 9:38am
Dilan Esper (mail) (www):

One check on Congress' power to regulate your activities is that you can give up citizenship. You have certain rights as a citizen living abroad, and you are also potentially subject to responsibilities. To use one example you probably accept, if Congress decided after Pearl Harbor that it needed to draft everyone-- including expatriate citizens-- in order to fight the Japanese and the Germans, they could do it. On the other hand, Congress could not draft expatriates who renounced their citizenship.

But so long as you carry an American passport around and are afforded the full consular protections of the American government, you are subject to Congressional regulation-- at least in your commercial activities and probably in many noncommercial ones as well.
1.28.2006 4:54pm
Milhouse (www):
Dilan Esper: yes, it is unusual.

The USA is also very unusual in believing that its laws apply to complete foreigners, acting in foreign countries - the USA has prosecuted foreign companies under its antitrust law, for forming an international uranium cartel, even none of the companies involved in the cartel were USAn, and none of the negotiations involved in setting it up took place in the USA.

The USA is also unusual in claiming the right to tax its citizens worldwide income, no matter where they live, or where the income was earned.
1.29.2006 6:39pm
Milhouse (www):
None of which, however, touches on the point here, which is the meaning of "commerce with foreign nations".
1.29.2006 6:40pm