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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 17-12038
D.C. Docket No. 4:16-cr-10032-JEM-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANDRES ALBETO DAVILA-MENDOZA,
Defendant - Appellant.
No. 17-12039
D.C. Docket No. 4:16-cr-10032-JEM-3
OTMAR SING GONZALEZ,
Defendant - Appellant. Case: 17-12038 Date Filed: 08/26/2020 Page: 2 of 28
No. 17-12742
D.C. Docket No. 4:16-cr-10032-JEM-1
JULIO BRAVO PINEDA,
Appeals from the United States District Court for the Southern District of Florida
(August 26, 2020)
Before JILL PRYOR, BRANCH, and BOGGS,∗ Circuit Judges.
BRANCH, Circuit Judge:
In this case, three foreign nationals in a foreign vessel in the territorial
waters of a foreign nation were arrested by the United States Coast Guard with the
consent of the foreign country and prosecuted in the United States for drug-
∗ Honorable Danny J. Boggs, United States Circuit Judge for the Sixth Circuit, sitting by designation. 2 Case: 17-12038 Date Filed: 08/26/2020 Page: 3 of 28
trafficking crimes under the Maritime Drug Law Enforcement Act (MDLEA), 46
U.S.C. §§ 70501–70508. The defendants unsuccessfully moved to dismiss the
indictment, in relevant part, on the ground that the MDLEA was unconstitutional
as applied to them because Congress lacks the authority to criminalize acts
committed in the territorial waters of foreign nations. The defendants ultimately
pleaded guilty to the drug-trafficking crimes, but preserved their right to appeal the
denial of their motion to dismiss. This appeal followed and presents us with a
question of first impression—whether the MDLEA exceeds Congress’s authority
pursuant to the Constitution’s Foreign Commerce Clause or, alternatively, the
Necessary and Proper Clause, as applied to the drug-trafficking activities of these
defendants in the territorial waters of a consenting foreign country. After careful
consideration, and with the benefit of oral argument, we conclude that the
MDLEA, as applied to these defendants, exceeds Congress’s constitutional
authority, and we vacate their convictions.
I. BACKGROUND
The undisputed facts are as follows. On June 4, 2016, Andres Davila-
Mendoza, Otmar Gonzalez, Julio Pineda, and a minor were on board a stalled go-
fast vessel in the territorial waters of Jamaica. With the permission of the
Jamaican government, U.S. Coast Guard officials who had been patrolling the area
by air and sea boarded and searched the distressed vessel. They discovered that the
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vessel was loaded with 3,500 kilograms of baled marijuana. Pineda told the Coast
Guard officials that he was the captain, that he was Nicaraguan, that the vessel was
Costa Rican, and that they were traveling from Jamaica to Costa Rica. Another
crew member stated that the vessel was overloaded with marijuana and its engines
had stopped working. With the further permission of the Jamaican government,
the Coast Guard seized the boat occupants and the drugs, and the United States
prosecuted the three men.
The three defendants were charged in an indictment with possessing and
conspiring to possess with intent to distribute more than 1,000 kilograms of
marijuana while on board a vessel, in violation of the MDLEA, 46 U.S.C.
§§ 70503(a)(1), 70503(b); 70506(b). That statute provides in relevant part that:
“While on board a covered vessel, an individual may not knowingly or
intentionally . . . manufacture or distribute, or possess with intent to manufacture or
distribute, a controlled substance.” 46 U.S.C. § 70503(a)(1). This prohibition
“applies even though the act is committed outside the territorial jurisdiction of the
United States.” Id. § 70503(b). For purposes of the MDLEA, a “covered vessel”
includes “a vessel subject to the jurisdiction of the United States.” Id. § 70503(e).
And the MDLEA specifically provides that a vessel in the territorial waters of a
foreign nation is subject to the jurisdiction of the United States “if the nation
consents to the enforcement of United States law by the United States.” Id.
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§ 70502(c)(1)(E).1 Notably, in enacting the MDLEA, Congress found “that . . .
trafficking in controlled substances aboard vessels is a serious international
problem, is universally condemned, and presents a specific threat to the security
and societal well-being of the United States.” Id. at § 70501.
The defendants moved to dismiss the indictment on the grounds that the
application of the MDLEA to them exceeded Congress’s power under the Define
and Punish Clause, U.S. Const. art. I, § 8, cl. 10. They also objected to the district
court’s exercise of in personam jurisdiction over them as a violation of their
due-process rights. The government responded that the extraterritorial application
of the MDLEA to the defendants was authorized by the Foreign Commerce Clause,
id. art. I, § 8, cl. 3, and/or the Necessary and Proper Clause, id. art. I, § 8, cl. 18.
The magistrate judge heard oral argument on the issue and recommended
that the defendants’ motion be denied, finding that Congress had lawfully
exercised its power under the Foreign Commerce Clause. The magistrate judge
also found that international law provided adequate notice to the defendants,
satisfying due process. The defendants filed objections, and the district court
affirmed and adopted the report and recommendation of the magistrate judge.
1 The defendants’ boat was a “vessel subject to the jurisdiction of the United States,” by statutory definition, because Jamaica consented to the United States Coast Guard’s enforcement of American laws in its territorial waters. 46 U.S.C. § 70502(c)(1)(E). 5 Case: 17-12038 Date Filed: 08/26/2020 Page: 6 of 28
The defendants pleaded guilty under a conditional plea agreement that
preserved their right to appeal the denial of their motion to dismiss the indictment.
The district court sentenced each defendant to 59 months of imprisonment to be
followed by removal proceedings and 5 years of non-reporting supervised release.
The defendants now appeal on that preserved basis, and we consider their appeals
together.
II. STANDARD OF REVIEW
“We review de novo the legal question of whether a statute is
constitutional.” United States v. Campbell, 743 F.3d 802, 805 (11th Cir. 2014)
(quoting United States v. Tinoco, 304 F.3d 1088, 1099 (11th Cir. 2002)).
III. DISCUSSION
The defendant-appellants in this consolidated appeal argue that the MDLEA,
as applied to them, exceeds Congress’s authority under Article I of the
Constitution. The government contends that the MDLEA, as applied to the
defendants, was a valid exercise of Congress’s power under the Foreign Commerce
Clause, or alternatively, under the Necessary and Proper Clause. We address
whether Congress has such authority under each Clause in turn.
A. The Foreign Commerce Clause
As an initial matter, the district court correctly recognized that, under our
Circuit precedent, the Constitution’s Define and Punish Clause does not authorize
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the MDLEA’s operation in foreign territorial waters. See United States v.
Bellaizac-Hurtado, 700 F.3d 1245, 1258 (11th Cir. 2012). That tripartite clause
grants Congress power to “define and punish Piracies and Felonies committed on
the high Seas, and Offenses against the Law of Nations.” U.S. Const. art. I, § 8,
cl. 10. Because the crimes here were not committed on the high seas,2 the Piracies
and Felonies Clauses do not apply. And we explained in Bellaizac-Hurtado that
the use of the term “the law of nations” in the Offenses Clause limits its application
to those offenses recognized by customary international law. 700 F.3d at 1249–53.
Because drug trafficking is not such an offense, id. at 1253–57, we held that the
MDLEA was unconstitutional under the Offenses Clause as applied to the
Bellaizac-Hurtado defendants, who had been charged with drug trafficking on
board a vessel in the territorial waters of Panama.
But we generally presume statutes to be constitutional. United States v.
Morrison, 529 U.S. 598, 607 (2000). And our Court has suggested in passing,
albeit dicta, that there may exist a different Article I authorization for the
MDLEA’s operation as applied to conduct that occurs in the territorial waters of a
2 The high seas lie beyond any nation’s territorial sea and are “international waters not subject to the dominion of any single nation.” United States v. Louisiana, 394 U.S. 11, 23 (1969). And we have frequently examined and upheld the constitutionality of the application of the MDLEA to conduct that occurred on the high seas. See, e.g., United States v. Estupinan, 453 F.3d 1336, 1338–39 (11th Cir. 2006); United States v. Rendon, 354 F.3d 1320, 1322–23 (11th Cir. 2003); Tinoco, 304 F.3d at 1092–95. But this case presents an altogether different question because the conduct at issue here involves foreign nationals aboard a foreign vessel in the territorial waters of a foreign nation, not the high seas. 7 Case: 17-12038 Date Filed: 08/26/2020 Page: 8 of 28
foreign nation—the Foreign Commerce Clause. United States v. Baston, 818 F.3d
651, 667 (11th Cir. 2016) (“If the government had invoked the Foreign Commerce
Clause in Bellaizac-Hurtado, we might have reached a different result.”). The
government here has taken us up on that suggestion and argues that the MDLEA as
applied to the conduct of these defendants was a valid exercise of Congress’s
authority pursuant to the Foreign Commerce Clause. Accordingly, the question we
must answer is whether the Foreign Commerce Clause authorizes the MDLEA’s
operation as applied to these defendants.
1. Legal Framework
The Constitution provides that “Congress shall have Power . . . [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. This tripartite clause is commonly known as
the Foreign Commerce Clause, the Interstate Commerce Clause, and the Indian
Commerce Clause, respectively. “The Commerce Clause emerged as the Framers’
response to the central problem giving rise to the Constitution itself: the absence of
any federal commerce power under the Articles of Confederation.” Gonzales v.
Raich, 545 U.S. 1, 16 (2005). The Supreme Court first defined the nature of
Congress’s commerce power in its 1824 decision in Gibbons v. Ogden, explaining
that:
[c]ommerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, 8 Case: 17-12038 Date Filed: 08/26/2020 Page: 9 of 28
and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse. . . . It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.
22 U.S. 1, 189–90, 196 (1824). Over time, the understanding and meaning of
“regulate Commerce,” at least in the context of the Interstate Commerce Clause,
has expanded and three general categories of regulation have emerged as
permissible exercises of Congress’s commerce power. See Raich, 545 U.S. at 15–
17 (discussing historical evolution of commerce power). “First, Congress can
regulate the channels of interstate commerce. Second, Congress has authority to
regulate and protect the instrumentalities of interstate commerce, and persons or
things in interstate commerce. Third, Congress has the power to regulate activities
that substantially affect interstate commerce.” Id. at 16–17 (internal citations
omitted).
With regard to the Foreign Commerce Clause, the Supreme Court has
described the Foreign Commerce Clause as granting Congress a broad,
“exclusive[,] and plenary” power to regulate commerce with foreign nations. See
Bd. of Trs. of Univ. of Ill. v. United States, 289 U.S. 48, 56 (1933). Yet,
jurisprudence addressing Congress’s positive Foreign Commerce Clause power is
sparse. Most of the Supreme Court’s Foreign Commerce Clause precedents
concern the foreign commerce power only in its negative, or dormant, sense. 9 Case: 17-12038 Date Filed: 08/26/2020 Page: 10 of 28
Specifically, the dormant foreign commerce power operates to void acts of the
states upon foreign commerce because of the Constitution’s overriding concern for
national uniformity in foreign commerce—even in instances when Congress has
not affirmatively acted. See, e.g., Japan Line, Ltd. v. Cty. of L.A., 441 U.S. 434,
448 (1979) (striking down a state tax on imports); see also Bd. of Trs. of Univ. of
Ill., 289 U.S. at 57–58 (affirming a U.S. tariff over a state’s protest). But the
Supreme Court has never clearly articulated the bounds of the positive foreign
commerce power.
And we have only one case in which we have addressed Congress’s positive
foreign commerce power, Baston. Specifically, the defendant in Baston was “an
international sex trafficker” who trafficked women “around the world, from
Florida to Australia to the United Arab Emirates.” 818 F.3d at 656. Although
Baston was a non-citizen, he was arrested at his mother’s home in the United
States and charged and convicted of violating 18 U.S.C. §§ 1596(a)(2) and 1591,
which prohibits sex trafficking by force, fraud, or coercion.3 Id. at 657–59.
3 18 U.S.C. § 1591 provides:
(a) Whoever knowingly-- (1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person; or
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Notably, § 1596(a)(2) grants the United States “extra-territorial jurisdiction over”
sex trafficking by force, fraud, or coercion that occurs overseas by a person who is
“present in the United States.”4
As relevant background, Congress enacted §§ 1591 and 1596, respectively,
as part of the Trafficking Victims Protection Act of 2000 and the Trafficking
Victims Protection Reauthorization Act of 2008 (together, the “TVPA”). Id. at
666, 668. “The TVPA is part of a comprehensive regulatory scheme,” id. at 668
(quotation omitted), designed to “combat trafficking in persons . . . to ensure just
and effective punishment of traffickers, and to protect their victims,” 22 U.S.C.
(2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (1),
knowing, or, except where the act constituting the violation of paragraph (1) is advertising, in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished as provided in subsection (b). 4 18 U.S.C. § 1596(a) provides:
In addition to any domestic or extra-territorial jurisdiction otherwise provided by law, the courts of the United States have extra-territorial jurisdiction over any offense (or any attempt or conspiracy to commit an offense) under section . . . 1591 if—
(1) an alleged offender is a national of the United States or an alien lawfully admitted for permanent residence (as those terms are defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101)); or
(2) an alleged offender is present in the United States, irrespective of the nationality of the alleged offender. 11 Case: 17-12038 Date Filed: 08/26/2020 Page: 12 of 28
§ 7101. In enacting the TVPA, Congress expressly found that “[t]rafficking in
persons is a modern form of slavery,” and “is the fastest growing source of profits
for organized criminal enterprises worldwide. Profits from the trafficking industry
contribute to the expansion of organized crime in the United States and
worldwide.” Id. § 7101(b)(1), (8). Further, Congress found that “[t]rafficking in
persons substantially affects interstate and foreign commerce” as such trafficking
“has an impact on the nationwide employment network and labor market.” Id.
§ 7101(b)(12).
On appeal, Baston argued that he could not be ordered to pay restitution for
his extraterritorial conduct, and that any holding to the contrary would exceed
Congress’s authority under Article I of the Constitution. 818 F.3d at 666. Thus,
this Court examined whether § 1596(a)(2), which confers extraterritorial
jurisdiction over sex trafficking, was a constitutional exercise of Congress’s
authority under the Foreign Commerce Clause. Id. at 666–69. In addressing this
question, we first noted that “nothing in the Foreign Commerce Clause” or in
Article I itself “limits Congress’s power to enact extraterritorial laws.” Id. at 667.
We then noted that the dormant Foreign Commerce Clause cases provided little
insight into the bounds of Congress’s positive foreign commerce power other than
the suggestion in dicta that the foreign commerce power “may be broader” than the
interstate commerce power (the bounds of which have been more thoroughly
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explored). Id. at 668 (quoting Atl. Cleaners & Dyers, Inc. v. United States, 286
U.S. 427, 434 (1932)). Nevertheless, we declined to “demarcate the outer bounds
of the Foreign Commerce Clause” and instead “assum[ed], for the sake of
argument, that the Foreign Commerce Clause has the same scope as the Interstate
Commerce Clause.” Id.
In other words, Congress’s power under the Foreign Commerce Clause includes at least the power to regulate the “channels” of commerce between the United States and other countries, the “instrumentalities” of commerce between the United States and other countries, and activities that have a “substantial effect” on commerce between the United States and other countries.
Id.
We then concluded that § 1596(a)(2) was a valid exercise of Congress’s
foreign commerce power “at least as a regulation of activities that have a
‘substantial effect’ on foreign commerce.” 818 F.3d at 668. Citing the
congressional findings, we explained that “Congress had a ‘rational basis’ to
conclude that [sex trafficking by force, fraud, or coercion]—even when it occurs
exclusively overseas—is ‘part of an economic “class of activities” that have a
substantial effect on . . . commerce’ between the United States and other
countries.” Id. at 668–69.
With Baston as our guide in the case at hand, we too, assume, without
deciding, that the Foreign Commerce Clause has the same scope as the Interstate
Commerce Clause. Under this assumption, the parties agree that, given the unique 13 Case: 17-12038 Date Filed: 08/26/2020 Page: 14 of 28
facts of this case, if the application of the MDLEA to the defendants’ conduct is to
pass muster, it will be under the third category of regulated commerce: those
activities that have a “substantial effect” on commerce between the United States
and foreign nations.
The substantial-effects inquiry is most commonly conducted in the Interstate
Commerce Clause context. For instance, in United States v. Lopez, 514 U.S. 549
(1995), the Supreme Court was tasked with determining whether the Gun-Free
School Zones Act of 1990, which made it a federal offense “for any individual
knowingly to possess a firearm at a place that the individual knows, or has
reasonable cause to believe, is a school zone[,]” was a valid exercise of Congress’s
authority under the Interstate Commerce Clause. Id. at 551 (citing the Gun-Free
School Zones Act of 1990, Pub. L. 101-647, § 1702 (1990), codified at 18 U.S.C.
§ 922(q) (1990)). Emphasizing that Congress’s constitutionally enumerated
powers have “judicially enforceable outer limits,” the Court set out to define more
clearly the limit on Congress’s authority to regulate interstate commerce. Id. at
566. The Court acknowledged that, if the statute “[was] to be sustained, it must be
under the third category as a regulation of an activity that substantially affects
interstate commerce.” Id. at 559. The Court then explained “[w]here economic
activity substantially affects interstate commerce, legislation regulating that
activity will be sustained.” Id. at 560. But the Gun Free School Zones Act was “a
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criminal statute that by its terms ha[d] nothing to do with ‘commerce’ or any sort
of economic enterprise[.]” Id. at 561. The Court also noted that the statute
“contain[ed] no jurisdictional element which would ensure, through case-by-case
inquiry, that the firearm possession in question affect[ed] interstate commerce.”
Id. The Court further explained that although Congress is not required to make
findings as to the burdens an activity has on interstate commerce and “[w]hether
particular operations affect interstate commerce sufficiently to come under the
constitutional power of Congress to regulate them is ultimately a judicial rather
than a legislative question,” it nevertheless would consider any legislative and
congressional findings regarding the effect of the activity on interstate commerce
as part of its independent inquiry into the constitutionality of the statute under the
Commerce Clause. Id. at 557 n.2, 562–63 (quoting Heart of Atlanta Motel, Inc. v.
United States, 379 U.S. 241, 273 (1964) (Black, J., concurring)). However, there
were no such findings present in Lopez as “[n]either the statute nor its legislative
history contain[ed] express congressional findings regarding the effects upon
interstate commerce of gun possession in a school zone.” Id. at 562 (first alteration
in original) (quotations omitted). Finally, although the government made
attenuated arguments about the substantial effects of gun possession in a local
school zone on interstate commerce (i.e., that possession of a firearm in a school
zone might lead to violent crime and violent crime affects the economy by driving
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up insurance costs and by deterring individuals from traveling to “unsafe areas”)
the Court rejected those arguments, concluding that such arguments would,
logically extended, allow Congress to regulate almost every private activity. Id. at
563–64. Consequently, because the text and structure of the Constitution do not
allow Congress a “general police power of the sort retained by the States,” id. at
567, the Court struck down the Act as unconstitutional.
Five years later, in United States v. Morrison, 529 U.S. 598 (2000), the
Supreme Court was again confronted with the question of whether a particular
statute regulating a non-economic activity was a valid exercise of Congress’s
power under the Interstate Commerce Clause. The statute in question in Morrison
created a civil right of action against perpetrators of gender-motivated crimes of
violence. Id. at 601 (citing the Violence Against Women Act of 1994, Pub. L.
103-322, § 40302 (1994), originally codified at 42 U.S.C. § 13981 (1994), now
codified at 34 U.S.C. § 12361). The government sought to sustain the statute “as a
regulation of activity that substantially affects interstate commerce.” Id. at 609.
The Court noted that, similar to the statute at issue in Lopez, the statute in question
did not seek to regulate an economic activity and “contain[ed] no jurisdictional
element establishing that the federal cause of action is in pursuance of Congress’[s]
power to regulate interstate commerce.” Id. at 613. But, unlike in Lopez, in
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Morrison Congress made express findings that gender-motivated violence affects
interstate commerce
“by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved in interstate commerce; . . . by diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products.”
Id. at 614–15 (quoting H.R. Conf. Rep. No. 103–711, at 385, U.S. Code Cong. &
Admin. News 1994, pp. 1803, 1853). However, the Court reiterated that “the
existence of congressional findings is not sufficient, by itself, to sustain the
constitutionality of Commerce Clause legislation,” and Congress’s findings as to
the Morrison statute suffered from the same flaw as the arguments proffered by the
government in Lopez. Id. at 614–15. Specifically, the reasoning of Congress
followed “the but-for causal chain from the initial occurrence of violent crime . . .
to every attenuated effect upon interstate commerce[,]” which “[i]f accepted . . .
would allow Congress to regulate any crime as long as the nationwide, aggregated
impact of that crime has substantial effects on employment, production, transit, or
consumption.” Id. at 615. And, again the Court cautioned that such reasoning
would allow the vast regulation of crime, family law, and other areas traditionally
reserved to the states. Id. at 615–16. Accordingly, the Court concluded that
Congress may not “regulate noneconomic, violent criminal conduct based solely
on that conduct’s aggregate effect on interstate commerce.” Id. at 617.
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The Supreme Court applied the substantial-effects test yet again five years
later in Raich to determine whether the federal Controlled Substances Act (“CSA”)
was a valid exercise of the interstate commerce clause power as applied to prohibit
the purely intrastate growth and use of marijuana for medical purposes in
California. 545 U.S. at 15. The Court explained that although the respondents in
Raich were cultivating the marijuana for local consumption, it was “a fungible
commodity for which there is an established, albeit illegal, interstate market.” Id.
at 18. And “a primary purpose of the CSA is to control the supply and demand of
controlled substances in both lawful and unlawful drug markets.” Id. at 19. Thus,
“[g]iven the enforcement difficulties that attend distinguishing between marijuana
cultivated locally and marijuana grown elsewhere, and concerns about diversion
[of the locally grown marijuana] into illicit channels,” the Court concluded that
Congress had a rational basis for believing that purely intrastate marijuana
production would, in the aggregate, have a substantial effect on interstate
commerce. Id. at 22 (internal citation omitted). Accordingly, the Court upheld the
constitutionality of the CSA, as applied to the Raich respondents, noting that “case
law firmly establishes Congress’[s] power to regulate purely local activities that
are part of an economic ‘class of activities’ that have a substantial effect on
interstate commerce,” and “the de minimis character of individual instances” of
regulated conduct did not matter. Id. at 17, 22 (quoting Lopez, 514 U.S. at 558).
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Notably, in reaching this conclusion, the Court rejected the respondents’
argument that the CSA could not “be constitutionally applied to their activities
because Congress did not make a specific finding that the purely local production
of marijuana for medicinal purposes “would substantially affect the larger
interstate marijuana market.” Id. at 21. The Court reiterated that “while we will
consider congressional findings in our analysis when they are available, the
absence of particularized findings does not call into question Congress’[s]
authority to legislate.” Id. Finally, the Court emphasized that a reviewing court’s
task under the substantial-effects inquiry is “a modest one. We need not determine
whether respondents’ activities, taken in the aggregate, substantially affect
interstate commerce in fact, but only whether a ‘rational basis’ exists for so
concluding.” Id. at 22.
2. Application of this framework to the facts of this case
With this framework in mind, we turn to the question of whether the
MDLEA as applied to the defendants’ conduct in this case is a valid exercise of
Congress’s authority under the Foreign Commerce Clause to regulate those
activities that have a “substantial effect” on the commerce of the United States
“with foreign nations.” U.S. Const. art. I, § 8, cl. 3. The government maintains the
Baston/Raich framework requires us to conclude that the application of the
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MDLEA to the wholly foreign conduct in this case was a valid exercise of
Congress’s authority. Baston, however, is factually distinguishable.
First, Baston involved statutory provisions enacted as part of the TVPA, “a
comprehensive regulatory scheme” that included specific congressional findings
“that trafficking of persons has an aggregate economic impact on interstate and
foreign commerce.” Baston, 818 F.3d at 668–69 (quoting United States v. Evans,
476 F.3d 1176, 1179 (11th Cir. 2007)). Importantly, in applying the
substantial-effects test to the extraterritorial conduct at issue in Baston, we relied
on those congressional findings to determine that “Congress had a ‘rational basis’
to conclude that such conduct—even when it occurs exclusively overseas—is ‘part
of an economic “class of activities” that have a substantial effect on . . . commerce’
between the United States and other countries.” Id. at 668 (citing Raich, 545 U.S.
at 17). Indeed, Congress’s findings were the only support we cited for this
conclusion. See id.
Although the government argues that, similar to the TVPA, the MDLEA is a
comprehensive regulatory scheme designed to combat a global problem (in this
case, drug trafficking), the MDLEA does not contain any congressional findings
regarding international drug trafficking’s effect on United States commerce “with
foreign nations.” See 46 U.S.C. § 70501. The law mentions only that “trafficking
in controlled substances aboard vessels is a serious international problem” and that
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it “presents a specific threat to the security and societal well-being of the United
States[.]” 46 U.S.C. § 70501. It does not include any findings on the existence or
extent of an economic impact, aggregate or otherwise, of the international drug
trade on United States commerce with foreign nations. See id. Admittedly, such
congressional findings are not required nor sufficient to establish substantial effect.
Morrison, 529 U.S. at 614. Nevertheless, “to the extent that congressional findings
would enable us to evaluate the legislative judgment that the [wholly foreign drug
trafficking] in question substantially affected [the United States’s commerce with
foreign nations] . . . they are lacking here.” See Lopez, 514 U.S. at 563.
Second, the statutes at issue in Baston, 18 U.S.C. §§ 1591(a) and 1596(a)(2)
required both an effect on foreign commerce as an element of the offense and a
physical connection to the United States. Specifically, § 1591(a) makes it a crime
to, “in or affecting interstate or foreign commerce,” recruit a person knowing that
force, fraud, or coercion “will be used to cause the person to engage in a
commercial sex act.” 18 U.S.C. § 1591(a) (emphasis added). The MDLEA does
not contain a similar “in or affecting interstate or foreign commerce” element. See
46 U.S.C. §§ 70502(c), 70503.
Additionally, and more importantly, although not a focal point of the
analysis in Baston (but certainly a critical factual distinction when compared to the
case at hand), under § 1596(a) the United States has jurisdiction over the
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extraterritorial sex-trafficking conduct only if the defendant is “a national of the
United States,” “an alien lawfully admitted for permanent residence,” or otherwise
“present in the United States, irrespective of the nationality of the alleged
offender.” See 18 U.S.C. § 1596(a). Thus, § 1596 provides a jurisdictional hook
that precludes purely foreign activity with no nexus to the United States from being
criminalized. 5 In contrast, the MDLEA does not contain a similar jurisdictional
hook or nexus to tie wholly foreign extraterritorial conduct to the United States.6
See 46 U.S.C. §§ 70502(c), 70503. In any event, no such jurisdictional hooks are
present in this case.
5 This distinction means that had the situation in Baston in fact been analogous to the facts of this case—if, for example, the defendant had been an Australian who had trafficked women between Australia and New Zealand, and was never present in the United States—the statutes at issue in Baston, 18 U.S.C. §§ 1591 and 1596, would not have permitted the defendant’s prosecution in the United States. 6 Our discussion of nexus in the context of the Foreign Commerce Clause does not in any way undercut our holdings that no nexus is necessary where the MDLEA is an exercise of Congress’s express authority to define and punish conduct occurring on the high seas pursuant to the Felonies Clause. See United States v. Campbell, 743 F.3d 802, 810 (11th Cir. 2014) (“‘[W]e have always upheld extraterritorial convictions [for conduct occurring on the high seas] under our drug trafficking laws as an exercise of power under the Felonies Clause.’ . . . We also have recognized that the conduct proscribed by the [MDLEA] need not have a nexus to the United States because universal and protective principles support its extraterritorial reach” (first alteration in original) (quoting Bellaizac-Hurtado, 700 F.3d at 1257)). Specifically, under the protective principle of international law, Congress “may assert extraterritorial jurisdiction over vessels in the high seas that are engaged in conduct that has a potentially adverse effect and is generally recognized as a crime by nations that have reasonably developed legal systems.” Tinoco, 304 F.3d at 1108 (quotations omitted). Thus, we have frequently rejected a nexus requirement and upheld the constitutionality of the application of the MDLEA to conduct that occurred on the high seas as a valid exercise of Congress’s authority under the Felonies Clause. See, e.g., Estupinan, 453 F.3d at 1338–39; Rendon, 354 F.3d at 1325. 22 Case: 17-12038 Date Filed: 08/26/2020 Page: 23 of 28
Furthermore, the facts in Baston demonstrated that the defendant’s activities
were so thoroughly intertwined with the United States’s commerce with foreign
nations that the issue was not a close call. Baston “resided in Florida, where he
rented property, started businesses, and opened bank accounts,” and “portrayed
himself as a United States citizen.” Baston, 818 F.3d at 669. He also “used a
Florida driver’s license and a United States passport to facilitate his criminal
activities.” Id. at 670. He trafficked a victim “in both the United States and
Australia, and when he trafficked her in Australia, he wired the proceeds back to
Miami.” Id. The court described Baston’s contacts with the United States as
“legion,” concluding that he “used this country as a home base and took advantage
of its laws; he cannot now complain about being subjected to those laws.” Id. at
669–70. While these facts were discussed in relation to Baston’s due-process
claim, they nevertheless make clear that Baston could have made no credible
argument that his conduct had no effect on United States commerce with foreign
nations. In the case at hand, however, the government did not allege that the
contraband, the boat, or the defendants had any connection, even a peripheral one,
with the United States, when they were seized in the territorial waters of Jamaica.
Accordingly, Baston is factually distinguishable and is not dispositive of the
question of whether the MDLEA as applied to the defendants in this case was a
valid exercise of Congress’s foreign-commerce power.
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Turning to Raich, the government argues that Raich reaffirmed that wholly
intrastate economic activities could have a substantial effect on interstate
commerce and could be regulated by Congress via the Interstate Commerce
Clause. Therefore, according to the government, if we logically extend Raich to
this case, the MDLEA’s application to the defendants’ extraterritorial conduct is a
permissible exercise of Congress’s authority under the Foreign Commerce Clause
because Congress could rationally conclude that foreign drug trafficking could
have a substantial effect on the international drug trade, which has an aggregate
economic impact on foreign commerce. However, while Raich may serve as a
backdrop for our analysis, Raich involved Congress’s power to regulate commerce
“among the states,” which undoubtedly presents a different question than
Congress’s power to regulate commerce “with foreign nations,” and, therefore,
does not necessarily control our analysis. In other words, the Interstate Commerce
Clause jurisprudence must be carefully adapted to fit the “commerce with foreign
nations” context.
To be clear, Supreme Court jurisprudence confirms that Congress’s power
under the Commerce Clause, be it the Interstate, Foreign, or Indian Commerce
Clause, “is subject to outer limits.” See Lopez, 514 U.S. at 556–57; see also Nat’l
Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 557 (2012) (Congress does not
have “a general license to regulate an individual from cradle to grave,” even if
24 Case: 17-12038 Date Filed: 08/26/2020 Page: 25 of 28
“[e]veryone will likely participate in the markets for food, clothing, transportation,
shelter, or energy”); Baston, 818 F.3d at 668 (noting that the Foreign Commerce
Clause has “outer bounds” but declining to demarcate those bounds). Thus, the
question in this case, which again presents an as applied challenge, is whether there
is a rational basis for concluding that the drug-trafficking conduct here in the
territorial waters of a foreign nation, by foreign nationals using a foreign-registered
vessel, of drugs not bound for the United States, substantially affects United States
commerce with foreign nations. The record contains no evidence to support this
conclusion. And the government’s attenuated argument that wholly foreign drug
trafficking impacts the international drug trade, which could impact United States
commerce with foreign nations, requires a chain of inferences like that rejected by
the Lopez court. Lopez, 514 U.S. at 564. As the Lopez court noted, “if we were to
accept the [g]overnment’s arguments, we are hard pressed to posit any activity by
an individual that Congress is without power to regulate.” Id.
Indeed, under the government’s reasoning, nothing would prevent Congress
from globally policing wholly foreign drug trafficking commerce, potentially
intruding on the sovereignty of other Nations, and bringing foreign nationals into
the United States for prosecution based solely on extra-territorial conduct when the
United States was neither a party to, nor a target of, the commerce. See United
States v. Al-Maliki, 787 F.3d 784, 792–93 (6th Cir. 2015) (cautioning that “an
25 Case: 17-12038 Date Filed: 08/26/2020 Page: 26 of 28
unbounded reading of the Foreign Commerce Clause allows the federal
government to intrude on the sovereignty of other nations—just as a broad reading
of the Interstate Commerce Clause allows it to intrude on the sovereignty of the
States”). Moreover, the Constitution withholds “from Congress a plenary police
power that would authorize” such regulation. Lopez, 514 U.S. at 566. Rather, the
Constitution grants Congress the authority to regulate commerce “with foreign
nations” not “among and within foreign nations.” cf. Al-Maliki, 787 F.3d at 792
(noting that “the textualist reading” of the Foreign Commerce Clause “require[s]”
“commerce ‘with’ a foreign Nation”).
Accordingly, for the reasons set forth above, as applied to these defendants,
the MDLEA is unconstitutional and exceeded Congress’s authority under the
Foreign Commerce Clause.
B. NECESSARY AND PROPER CLAUSE
The government also argues that the MDLEA’s application to this case is a
valid exercise of Congress’s authority pursuant to Article I’s Necessary and Proper
Clause to enforce the 1989 Convention Against Illicit Traffic Treaty and the 1997
Jamaica Bilateral Agreement between the United States and Jamaica. We are
unpersuaded.
Article II of the Constitution gives the President the “Power, by and with the
Advice and Consent of the Senate, to make Treaties . . . .” U.S. Const. art. II, § 2,
26 Case: 17-12038 Date Filed: 08/26/2020 Page: 27 of 28
cl. 2. “In determining whether Congress has the authority to enact legislation
implementing such a treaty, we look to the Necessary and Proper Clause.” United
States v. Belfast, 611 F.3d 783, 804 (11th Cir. 2010). That clause provides that
“Congress shall have Power . . . [t]o make all Laws which shall be necessary and
proper for carrying into Execution the foregoing Powers, and all other Powers
vested by this Constitution in the Government of the United States, or in any
Department or Officer thereof.” U.S. Const. art. I, § 8, cl. 18. “Collectively, these
clauses empower Congress to enact any law that is necessary and proper to
effectuate a treaty made pursuant to Article II.” Belfast, 611 F.3d at 804 (emphasis
added).
But the MDLEA was enacted long before the Convention against Illicit
Traffic Treaty or the Jamaica Bilateral Agreement; therefore, it was not enacted
pursuant to the Necessary and Proper Clause to effectuate those international
agreements. See id. And the government has not provided us with any case in
which legislation has been upheld as necessary and proper for carrying into
execution a treaty which did not yet exist at the time the legislation was enacted.
Cf. United States v. Lara, 541 U.S. 193, 201 (2004) (“The treaty power does not
literally authorize Congress to act legislatively, for it is an Article II power
authorizing the President, not Congress, ‘to make Treaties.’” (quoting U.S. Const.
art. II, § 2, cl. 2)). Moreover, “nothing in the legislative history of MDLEA
27 Case: 17-12038 Date Filed: 08/26/2020 Page: 28 of 28
mentions a treaty or intimates that the legislation is in compliance with treaty
obligations.” United States v. Cardales-Luna, 632 F.3d 731, 749 (1st Cir. 2011)
(Torruella, J., dissenting). Similarly, “[n]o court decision dealing with [the]
MDLEA refers to any treaty obligation as the source of Congress’s Article I
authority.” Id. Accordingly, we do not find that, as applied to these defendants,
the MDLEA was a valid exercise of Congress’s authority under the Necessary and
Proper Clause to effectuate the subsequently enacted Illicit Traffic Treaty or the
Jamaica Bilateral Agreement.
IV. CONCLUSION
Because as applied to these defendants, the MDLEA exceeded Congress’s
authority under Article I, we must VACATE their convictions.