Wednesday, June 10, 2015

Sex and Commerce

It is common knowledge that the courts allow Congress to regulate noncommercial activity via its Commerce Clause authority. And this is so despite two Supreme Court decisions reigning in that power with respect to gun-free school zones and violence against women. On the heels of these decisions, failed attacks were made on a number of statutes rooted in commerce-clause authority (think child pornography and other sex-offender-related statutes as examples). But we continue to press the arguments, knowing that there are Supreme Court Justices displeased with the breadth of Congress's commerce-clause powers.

 Supreme Court Justice Clarence Thomas laughs at The Federalist Society's 2011 Annual Dinner in Washington on Nov. 10, 2011.   
In a recent dissent, Justice Thomas, joined by Justice Scalia, was explicit: “Congress may not regulate noneconomic activity, such as sex crimes, based on the effect it might have on interstate commerce."

Enter the Sixth Circuit's even more recent decision in United States v. al-Maliki.
The case involved a prosecution based on foreign travel followed by sex with a minor in a foreign country. The defendant challenged the prosecution as outside the scope of Congress's foreign commerce clause powers. The Sixth Circuit rejected the argument under plain error review, but, for all intents and purposes, found the argument persuasive. The Court found it doubtful that it is enough to establish that a defendant at one point traveled in foreign commerce, with no unlawful intent whatsoever, in order to convict under the statute at issue (18 U.S.C. 2423(c)). That type of noneconomic activity is beyond commerce-clause authority. The Court noted: "There isn't -- and can't be -- a generalized federal crime for traveling in interstate commerce with no illicit purpose and then, after a few months, committing illicit sexual conduct with a minor."
Let's stop there and insert: "failing to register as a sex offender" for "committing illicit sexual conduct with a minor." Because the logic is identical: why do we allow Congress to prohibit the intrastate activity of failing to register simply because the defendant had earlier traveled in interstate commerce, with no illicit purpose not to register. Because the courts do not require such an illicit purpose.
As difficult as it is to raise bound-to-fail commerce-clause challenges, this case gives some hope that, at some point, perhaps we can turn the tide and reign in the farce that is noncommercial regulation justified via a clause about commerce.    

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