Eleventh Circuit Panel finds that Maritime Drug Law Enforcement Act exceeds Congress's Powers under the Foreign Commerce Clause and the Necessary and Proper Clause Powers

This case may be headed to the Supreme Court.

|The Volokh Conspiracy |

In August, a panel of the Eleventh Circuit decided U.S. v. Davila-Mendoza. The case presented an as applied challenge to the Maritime Drug Law Enforcement Act. The MDLEA prohibits drug-trafficiking in foreign waters. Judge Branch wrote the majority opinion, which was joined by Judge Jill Pryor (no relation to Chief Judge Bill Pryor) and Judge Danny Boggs (my former boss from the Sixth Circuit who was sitting by designation). The panel found that the MDLEA exceeded Congress's powers under the Foreign Commerce Clause and the Necessary and Proper Clause.

Here, the Court presumes the Lopez framework for the Interstate Commerce Clause extends to the Foreign Commerce Clause. The MDLEA could only be upheld under the so-called "substantial effects" test. (In fact, the "substantial effects" test is an application of Congress's Necessary and Proper Clause power, but Chief Justice Rehnquist elided this position.) The substantial effects test allows Congress to regulate intrastate economic activity that has a substantial effect on interstate commerce. But there is a problem for this case. Economic activity in foreign waters is not intrastate economic activity. Judge Branch show a careful grasp of Raich:

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.

She nailed it. Lopez identified three specific requirements to trigger the substantial effects test: (1) activity, that is (2) intrastate and (3) economic in nature. Leading up to NFIB, most critics only focused on factors 2 and 3; they disregarded the first factor. But we cannot forget the second factor.

The MDLEA has more problems. The statute lacked any congressional findings about how the regulated activity would affect foreign commerce. The statute also lacked a "jurisdictional hook." Finally, the Court found that the government's capacious reading of federal power lacks any limiting principle (sound familiar?):

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.

Give that this panel was unanimous, en banc review is unlikely. This case may be headed to the Supreme Court.

Update: I have given this case a bit more thought. I think the upshot of the opinion is that the substantial effects test does not apply to the Foreign Commerce Clause unless the Supreme Court states that it applies. Congress can regulate actual foreign commerce (commerce between the United States and another states). But if Congress wanted to regulate activity that does not move between countries, it must create a jurisdictional hook in the statute. If there is actual interstate commerce and actual foreign commerce, the federal government cannot rely on the third category from Lopez (substantial effects).

NEXT: There Is No Court of History

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  1. Congress has the power “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;”

    “Commerce” involves trade in legitimate goods that aren’t banned under International Law (i.e. “the Law of Nations”) and I always understood “the High seas” to include the territorial waters of any nation that wished to cede that authority, although I may be confusing that with Costa Rico’s ability to cede sovereignty over a Costa Rican flagged vessel.

    As the court noted, “…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.”

    We can argue if it’s “Piracy” or not, but it’s definitely a “Felony” and an “Offense against the Law of Nations.” So why doesn’t that, and not the commerce clause, apply here? It isn’t like they had a load of sugar or other lawfully traded commodity.

    Or is this a case where the law is an ass?

    1. I think the “Offense against the Law of Nations” is reasonably argued based on the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances

  2. Hmm..

    I wonder if the Treaty Clause could apply here. That could be a dangerous precedent if it does.

    I think the better argument is the “To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;”

    Because of the UN Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances (To which the US is a signatory, as well as Jamaica), I think the transport of large quantities of marijuana would qualify as an offense against the law of nations.

  3. Why, one might even say, “It is our duty to apply the Constitution—not extend precedent”.

    1. The more I think about this, the more I think it was mis-argued by the Government.

      There’s a clear clause in the Constitution about this. Article 1, Section 8, Clause 10. “To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;”

      So, what is the “Law of Nations?” This generally refers to international accords and international law. And indeed, there is a UN convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

      This would appear to be a clear example.

  4. Baled marijuana?

    The clingers’ War On Doobies is approaching conclusion. Not so long from now, young Americans — who will view the marijuana store roughly as we perceive beer distributors today — will read decisions such as this and ask ‘what kind of prudish, freedom-hating losers were arresting people for marijuana?’

    I will answer: “They were called conservatives . . . or Republicans. At that time, they were the main competition for the Democratic Party. This occurred while their influence was still flickering.”

    1. If memory serves, it was that God of the Democrats, that Holy Man of all Holy Men, FDR, who outlawed doobies. But I could be wrong.

      1. Not a simple story, but the Marihuana Tax Act of 1937 looks like a trip.
        https://en.wikipedia.org/wiki/Legal_history_of_cannabis_in_the_United_States

        Note that it’s the left that’s okay with their luminaries being tarnished (see: FDR and Japanese-Americans). The right is the ones who retcons all to be exemplars of virtue, or never true conservatives in the first place.

      2. You keep clinging to those fond memories of the ’30s, disregarding the entirety of American modernity.

        I don’t much blame you. It’s about all you guys have left, and even that won’t last much longer.

        1. Allow me to translate:

          “FDR was a Democrat when he did good things. But he was a Republican when he did bad things, because party switch.”

      3. However the war on drugs may have started, its conservatives who’ve been keeping it alive for the last fifty years.

        1. Intellectual fashions change.

          From City Journal in 2016:

          “In 1991, New York’s venerable African-American congressman Charles Rangel met National Review founder William F. Buckley, Jr., for a televised debate. Their conversation centered on topics—race, crime, criminal justice—still prominent in American politics today. But a viewer born in the intervening quarter-century might be surprised at some of the positions taken in their conversation; or, rather, at who held which positions. Buckley, the conservative intellectual, argued that the so-called war on drugs had failed and that the criminalization of narcotics was the primary cause of much of the violence plaguing America at the time. Rangel, whose congressional district was the epicenter of the crack epidemic, argued for increased enforcement of the drug laws, lamenting the government’s lackadaisical approach. Using language that today would be considered inflammatory, Rangel called for drug offenders to face life sentences in prison. “We should not allow people to distribute this poison without fear that they might be arrested, and put in jail. . . . [Those people] should believe that they will be arrested and go to jail for the rest of their natural life.” It’s hard to imagine a liberal black politician making such a statement today. And Rangel himself—who, at 86, will retire from Congress in January—has retreated from his legacy as a law-and-order drug warrior as political momentum on the left has swung against such efforts.”

          https://www.city-journal.org/html/charlies-angles-14791.html

          1. I would consider Buckley more of a libertarian than a conservative but even so, the primary opposition to ending the war on drugs today is mostly conservative.

            1. The topic was the past 50 years.

              And Buckley was not a True Conservative! (TM)

              1. Suppose Buckley was a true conservative (as defined by you). Do you dispute that the opposition to legalizing drugs is mostly conservative, despite whatever outliers and exceptions there may be?

                1. It may be that way today as to marijuana, but the past 50 years is more complex even there.

                  And for other drugs, maybe I haven’t been following, what is the present-day status of the legalization campaign and who is supporting it? I know libertarians are (maybe they’re not true conservatives?).

                  I know there are people on the left who want to shift from imprisonment in certain cases to compulsory drug treatment, but that’s not legalization.

                  “Suppose Buckley was a true conservative (as defined by you).”

                  I genuinely am surprised to find that this is a controversial issue.

                  Amidst all the debate over what’s *really* conservative, the late WFB is generally cited as being in the conservative camp.

                  But by all means Google “William F. Buckley” and “conservative” if you think that associating him with conservatism is simply some random fancy of my own.

          2. It was the Black community — mostly the grandmothers and the ministers — who organized and lobbied for the heavy sentences on crack and for the heavy police presence in the minority neighborhoods.

            They were tired of seeing young Black men getting into drugs & gangs and winding up dead. They used the democratic process to get what they thought they wanted. That’s a fact.

    2. No, not so long from now, doobies will be viewed as DDT and asbestos are today. There is increasing evidence linking it to Schizophrenia and this is not right-wing research.

      1. Now do beer.

        And video games.

        And interracial gay marriage.

        And not attending church.

        Delusional right-wing cranks are among my favorite culture war casualties.

        1. Kirkland, what ever happened to the “Flappers”?

          Kirkland, what also happened (about the same time) to the so-called “Boston Marriages”, a.k.a. the “Wellesley Marrages”?

          Kirkland, who was Jonathan Edwards and what is he famous for?

          Kirkland, what was F. Scott Fitzgerald trying to say in _The Great Gatsby_?

          Kirkland, you do know that Hillary Clinton was a “Goldwater Girl”, don’t you???

          1. Jonathan Edwards — who may be alive — had a fine moment with his anti-war message.

            I had not heard that one in years. Thanks for the reminder.

        1. Citing an individual clinical study is not good science. Wait for the longitudinal studies.

          And this one doesn’t even look into causality; it’s just a correlation. Even if it were a longitudinal study it wouldn’t be good evidence of your thesis.

          1. But what do you say when someone points out the same thing with CO2 and Global Warming?

            1. That there are literally hundreds of studies showing man made global warming is a real thing.

              1. Showing correlations, and not even that.

                1. LOL no.

                  The idea that greenhouse gasses were a thing came bottom-up, from the effects if heat on closed systems.

    3. This case was prosecuted by the Obama Justice Department.

  5. The panel concludes the chain between drug-trafficking in foreign waters is too attenuated from interstate commerce to be permissible. But, I thought the same conclusions in Lopez and Morrison, which did not apply in Raich, was because the conduct being regulated was not economic. It seems to me, the conduct in this case is economic, and perhaps more in line with Raich.

    1. By the same token, wouldn’t “Piracy” be considered interstate commerce???

        1. Piracy definitely affects commerce, look at Somalia.

          However, in the 18th Century, the pirated goods (e.g dishes, fabrics, etc.) would then be sold and/or consumed. There was a real commerce in pirated goods.

          But Piracy was considered piracy and not commerce.

          1. Piracy is actually specifically and separately handled from commerce.

          2. Okay? Are you trying to make some sort of point, or just throwing out collections of words?

    2. “It seems to me, the conduct in this case is economic”

      The purpose is economic, but the conduct isn’t — the conduct is the violation of International law, albeit for economic reasons.

      Look at it this way — let’s say the purpose was subversive, to flood the US with cheap Heroin & Fentaynl so as to cause us problems. The conduct would still be the same — the violation of International law — even though the purpose wasn’t economic.

  6. I think the upshot of the opinion is that the substantial effects test does not apply to the Foreign Commerce Clause unless the Supreme Court states that it applies.

    The substantial effects test applies to interstate commerce through the Necessary and Proper Clause, and the Necessary and Proper Clause applies to all of the foregoing powers. So, while it is true SCOTUS has not explicitly applied the substantial effects test to foreign commerce, how do you distinguish interstate and foreign commerce given they are both foregoing powers?

    1. Also, your upshot has to be wrong because the panel

      assume[d], without deciding, that the Foreign Commerce Clause has the same scope as the Interstate Commerce Clause. […] Under this assumption, the parties agree that […] 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.

      1. So the court ignores a perfectly good grant of authority “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations” because “the parties agree” that this comes under the commerce clause?!?

        That may be “legal”, but it’s also stupid

        And the flip side of this is that the USCG could have opened up with a .50 cal machine gun and shredded them, their boat and the pot. There’s be an issue with it being in Jamaican waters but otherwise it’d be perfectly legal under war powers as long as both the POTUS and Congress were OK with it. “War on drugs.”

        These were modern-day pirates.

  7. ” Update: I have given this case a bit more thought. ”

    Or maybe you read the comments.

  8. From the opinion:

    “This appeal…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.”

    Well, that sounds about right.

    1. I think “consenting foreign country” meant “country consenting to U. S. jurisdiction,” not “consenting to drug dealing.”

  9. Congress lacks the authority to criminalize acts committed in the territorial waters of foreign nations

    Specifically, that Congress lacks the Constitutional authority to prosecute non-Americans outside of the United States.

    Now let’s turn to the 10th amendment:

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    If Congress’s exercise of power is not granted by the Constitution, then those powers must be reserved to the several states.

    Ergo, the state of Alabama should immediately pass a law copying the Maritime Drug Law Enforcement Act. Such a statute would allow Alabama authorities to detain and prosecute Jamaican drug smugglers operating in the territorial waters of Jamaica.

    If Alabama does have such power, then Alabama also must enjoy the power to enforce this law. Therefore, Alabama should from its own blue water navy to enforce their laws against these Jamaican drug smugglers in Jamaica.

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