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1 1 (June 23, 2022)

handle is hein.crs/govehws0001 and id is 1 raw text is: Congressional_______ ~ Research Service Congress's Foreign Commerce Clause Power Questioned June 23, 2022 On May 5, 2022, a divided panel of the U.S. Court of Appeals for the Sixth Circuit (the panel) held that the federal sex tourism statute, 18 U.S.C. § 2423(c), outlawing overseas child molestation, exceeds Congress's legislative authority under the Constitution's Foreign Commerce Clause, but remains viable under treaty-implementing constitutional provisions. The opinion is at odds with those of other federal appellate decisions. It is also cast in language that invites the Supreme Court to revisit its treaty- implementing and Interstate Commerce Clause substantial effect jurisprudence. Background Micky Rife travelled from the United States to Cambodia to become a school teacher there. Authorities accused him of noncommercial sexual assault of two young students several years later. Federal prosecutors secured his indictment and conviction in the U.S. District Court for the Eastern District of Kentucky under Section 2423(c). On appeal, he questioned whether Congress had the legislative authority to enact a statute applicable to him under either the Constitution's Foreign Commerce Clause or its Treaty Enabling Clause. Foreign Commerce Clause Congress possesses only such legislative authority as can be traced to the Constitution. Article I, Section 8 of the Constitution authorizes Congress to regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes. The Supreme Court in Lopez explained that the Interstate Commerce Clause (Commerce among the several States) encompasses the power to regulate (1) the use of the channels of interstate commerce; (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce; and (3) those activities having a substantial relation to interstate commerce. The Lopez third category builds on the Court's holding decision in Wickard v. Filburn (as articulated in Fry v. United States): Even activity that is purely intrastate in character may be regulated by Congress, where the activity, combined with like conduct by others similarly situated, affects commerce among the States or with foreign nations. The Court invoked the same principle when it Congressional Research Service https://crsreports. congress.gov LSB10767 CRS Legal Sidebar Prepared for Members and Committees of Congress

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