Petition for Writ of Certiorari — Corrigan Clay, Petitioner v. United States

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

APPENDIX A: Opinion, United States v. Clay,

128 F.4th 163 (3d Cir. Feb. 3, 2025) ...................... 1a

APPENDIX B: Opinion & Order, United States v.

Clay, No. 2:22-cr-00055-CCW (W.D. Pa. Feb.

24, 2023) ............................................................. 63a

APPENDIX C: Order

Denying

Rehearing,

United States v. Clay, No. 23-2335 (3d Cir.

Mar. 19, 2025) ....................................................... 71a

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APPENDIX A

UNITED STATES COURT OF APPEALS,

THIRD CIRCUIT

————

No. 23-2335

————

UNITED STATES OF AMERICA,

v.

CORRIGAN CLAY,

Appellant.

————

Argued on June 5, 2024

(Filed: February 3, 2025)

————

Before: HARDIMAN, PORTER, and AMBRO, Circuit

Judges.

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

Corrigan Clay pleaded guilty to sexually abusing his

minor adopted daughter while living in Haiti, in

violation of 18 U.S.C. § 2423(c). In this appeal, he

argues principally that Congress lacked the power to

enact § 2423(c). In our view, § 2423(c) is a permissible

exercise of congressional power under the Foreign

Commerce Clause and the Necessary and Proper

Clause. Because we also conclude that the District

Court did not err in imposing Clay’s sentence, we will

affirm.

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I

A

Born in Oregon, Clay was raised by a loving and

supportive family. After experiencing “many years of

unresolved grief and suffering” stemming from the

early deaths of his older brother and father, Clay was

“propelled . . . into a lifestyle of service in difficult

environments.” Dist. Ct. Dkt. No. 138, Sentencing Tr.

(“Tr.”) at 138. After graduating from college, he

married his first wife and the couple moved from the

United States to Germany, where they became Christian youth ministers. They had two biological children

before moving first to Canada, where Clay obtained a

master’s degree in theology, and then to Haiti “to work

in service to the poor.” Id. While working in a Haitian

orphanage, the couple became disillusioned by its

abusive environment and corrupt staff, so they left to

found their own nonprofit organization.

While living in Haiti, the couple adopted two

Haitian children. Unfortunately, the stresses of serving the poor took “a huge toll” on Clay, causing him to

“lash out at [his] children and neglect [his] marriage.”

Id.; App. 179. Around the same time, Haiti was struck

by a massive earthquake, and Clay experienced “psychological trauma” as he tried to cope with the resulting devastation. App. 211. His marriage deteriorated and ended in divorce.

B

Prior to their divorce and while still in Haiti, Clay

and his wife lived separately. They shared custody of

their children, who usually stayed with Clay on

weekends. When the children visited him, they each

had their own sleeping areas except for one of his

adopted daughters. According to Clay, she usually

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slept next to him in the downstairs bedroom—even if

she initially went to bed upstairs—because she would

get scared by noises.

After his divorce was finalized, Clay began to

experience intrusive thoughts, nightmares, and symptoms of post-traumatic stress disorder. He testified at

sentencing that he felt “utterly alone with no affection

. . . [in] the country that had meant so much to [him]

but had taken everything away.” Tr. at 138–139.

Clay’s adopted daughter often wet the bed while

sleeping with him. On one such night, Clay stripped

all the bedding, and they went back to bed together

with just a clean blanket and no clothing. According to

Clay, this incident sparked his protracted sexual abuse

of her. Clay claimed that he sexually abused her fewer

than 20 times over less than 6 months. The abuse

ended when Clay’s ex-wife left Haiti for the United

States and took the children with her. But Clay

continued to travel to the United States with his

second wife to visit the children as much as possible.

Following a visit with Clay in November 2020, the

minor victim told her mother that Clay had previously

sexually abused her. Clay’s ex-wife confronted him,

and he admitted that the allegation was true. Clay

later confessed to state and federal law enforcement.

C

Clay was indicted for violating 18 U.S.C. § 2423(c),

which prohibits any citizen or legal permanent

resident of the United States “who travels in foreign

commerce or resides, either temporarily or permanently, in a foreign country” from “engag[ing] in any

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illicit sexual conduct with another person.”1 The statute

elsewhere defines “illicit sexual conduct” to include “a

sexual act” with a minor that would violate U.S. law

had it occurred within the territorial jurisdiction of the

United States. 18 U.S.C. § 2423(g)(1) ((f)(1) prior to

December 22, 2023). The indictment did not allege that

Clay traveled with the intent to engage in illicit sexual

conduct or that his conduct affected foreign commerce.

During the period covered by the indictment, Clay: (1)

traveled repeatedly between Haiti and the United

States, where he owned an income-producing property;

(2) instituted adoption proceedings for his two Haitian

children in Washington state court; (3) listed an

address in the State of Washington as his permanent

address when applying for U.S. passports for his

adopted children; and (4) used a Florida address to

obtain a Florida driver’s license in September 2018.

Clay moved to dismiss the indictment under Rule

12(b)(3) of the Federal Rules of Criminal Procedure,

claiming that § 2423(c) was unconstitutional on its

face and as applied to him. He argued that neither

Congress’s power to regulate foreign commerce nor its

treaty power “extend[ed] so far as to allow Congress

to regulate [his] entirely non-commercial foreign conduct.” Dist. Ct. Dkt. No. 76, at 4. The District Court

denied Clay’s motion, concluding that § 2423(c) was a

constitutional exercise of Congress’s authority to regulate the channels of foreign commerce based on our

As Clay’s counsel conceded at oral argument, Clay can prevail

only if both the “travels in foreign commerce” and “resides in . . .

a foreign country” prongs of § 2423(c) exceed the powers of

Congress, since he pleaded guilty to an indictment charging both

prongs. See United States v. Park, 938 F.3d 354, 364 (D.C. Cir.

2019).

1

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decision in United States v. Pendleton, 658 F.3d 299 (3d

Cir. 2011). The Court declined to address the parties’

arguments on the treaty power.

After the District Court denied his motion to

dismiss, Clay pleaded guilty without a plea agreement.

In his sentencing memorandum, Clay sought a downward variance based on “both the facts of the case and

the broader legal landscape governing sentencing

under § 2423(c).” Dist. Ct. Dkt. No. 106, at 3. The

District Court denied the variance and sentenced Clay

to 235 months’ imprisonment—the bottom of the

Sentencing Guidelines range—reasoning that the

sentence “appropriately reflect[ed] the seriousness of

his offense and the needs for just punishment,

deterrence[,] and rehabilitation and that it would not

lead to unwarranted sentencing disparities between

. . . Clay and others convicted under the same

statute.” Tr. at 164. Clay stated his intent to appeal the

constitutional challenge he had previously raised and

also objected procedurally to the sentence, “[i]n particular . . . the consideration of . . . avoiding

unwarranted sentencing disparities among defendants with similar records.” Tr. at 167. He then filed this

timely appeal. 2

II

We exercise plenary review over the District Court’s

legal conclusions, and we review its factual findings for

clear error. See United States v. Stock, 728 F.3d 287,

The District Court had jurisdiction under 18 U.S.C. § 3231,

and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a). Clay may challenge the constitutionality of the statute

of conviction because this issue “properly fall[s] within the

narrow scope of review not barred by [his] guilty plea.” United

States v. Whited, 311 F.3d 259, 262 (3d Cir. 2002).

2

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291 (3d Cir. 2013). Every law enacted by Congress

must be based on one or more of its powers, or

“from them all combined.” Legal Tender Cases, 79 U.S.

(12 Wall.) 457, 534, 20 L.Ed. 287 (1870). In other words,

we may group together any number of powers and

“infer from them all that the power claimed has been

conferred.” Id. And “[d]ue respect for the decisions of a

coordinate branch of Government demands that we

invalidate a congressional enactment only upon a

plain showing that Congress has exceeded its constitutional bounds.” United States v. Morrison, 529 U.S.

598, 607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000)

(emphasis added).

Clay characterizes § 2423(c) as usurping the law

enforcement responsibilities of the Haitian government and argues that “neither the Foreign Commerce

Clause nor the Necessary and Proper Clause authorize

the extraterritorial enforcement of [federal] criminal

laws against [him] for noncommercial incestual conduct that occurred entirely outside the United States.”

Clay Br. 9.

III

The difficult constitutional questions raised in this

appeal require us to explain in some detail the

provenance of the statute under review. “Section

2423[(c)] developed through a century of legislation

addressing international sex trafficking,” originating

in the White-Slave Traffic (Mann) Act, ch. 395, § 2, 36

Stat. 825 (1910) (codified as amended at 18 U.S.C.

§ 2421 et seq.). United States v. Durham, 902 F.3d 1180,

1194 (10th Cir. 2018). “For decades, [this] statute

covered only situations in which the minor victim of

certain sex crimes was transported across state or

federal borders.” United States v. Pepe, 895 F.3d 679,

683 (9th Cir. 2018) (citation omitted).

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In 1978, Congress expanded the statute to prohibit

commercial sexual abuse against boys as well as girls.

See Protection of Children Against Sexual Exploitation Act of 1977, Pub. L. No. 95-225, § 3, 92 Stat. 7, 8

(1978). After recognizing that the statute failed to

address “private” (as opposed to commercial) exploitation, H.R. Rep. No. 99-910, at 7 (1986), reprinted in

1986 U.S.C.C.A.N. 5952, 5957, Congress expanded the

law in 1986 to encompass noncommercial sexual

exploitation, Child Sexual Abuse and Pornography Act

of 1986, Pub. L. No. 99-628, § 5, 100 Stat. 3510, 3511

(1986).

Less than a decade later, Congress began to target

sex tourism. See Durham, 902 F.3d at 1195. In 1994, it

added the offense now codified at § 2423(b) to punish

individuals who traveled in foreign commerce “for the

purpose of engaging in [a prohibited] sexual act.”

Violent Crime Control and Law Enforcement Act of

1994, Pub. L. No. 103-322, § 160001(g), 108 Stat. 1796,

2037.

Prosecutors sometimes had trouble proving the

intent element of that offense. See H.R. Rep. No. 107525, at 2–3 (2002). Congress addressed this enforcement gap by enacting § 2423(c) in 2003 “[a]s a tool to

close statutory ‘loopholes’ that affected commercial sex

tourism.” United States v. Bollinger, 798 F.3d 201, 218

(4th Cir. 2015). Passed as part of the Prosecutorial

Remedies and Tools Against the Exploitation of

Children Today (PROTECT) Act, Pub. L. No. 108-21,

§ 105, 117 Stat. 650, 654 (2003), “Congress viewed

[§ 2423(c)] as a critical part of its broader efforts to

combat the multibillion dollar international sex

trafficking market.” Durham, 902 F.3d at 1197. To that

end, Ҥ 2423(c) targets the same individuals as does

§ 2423(b)—namely, persons traveling in commerce for

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the purpose of engaging in illicit sex—[but] it does so

by focusing the court’s attention on the defendant’s

actual conduct in the foreign nation.” Pendleton, 658

F.3d at 304 (emphasis added) (citations omitted). “In

sum, Congress has worked to combat sex trafficking—

particularly of minors—for over a century, developing

a statutory scheme targeting sexual exploitation for

both commercial and noncommercial purposes.”

Durham, 902 F.3d at 1197 (emphases added).

IV

Having explained the statutory backdrop, we consider the Foreign Commerce Clause and the Necessary

and Proper Clause to assess whether Congress had the

power to enact § 2423(c). 3

At oral argument, the Government argued that Congress had

the power to establish nationality-based jurisdiction under

Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375

(1932). In that case, a U.S. citizen living in France was found

guilty of contempt for failing to respond to a subpoena requiring

him to appear as a witness for the United States at a criminal

trial. 284 U.S. at 433, 52 S.Ct. 252. The Supreme Court held the

statute to be constitutional, reasoning that

3

the question of its application, so far as citizens of the

United States in foreign countries are concerned, is one

of construction, not of legislative power. . . . Nor can

it be doubted that the United States possesses the

power inherent in sovereignty to require the return to

this country of a citizen, resident elsewhere, whenever

the public interest requires it, and to penalize him in

case of refusal.

Id. at 437, 52 S.Ct. 252. Because the issue was not briefed, we

decline to address it.

9a

A

Congress has the power to “regulate Commerce with

foreign Nations.” U.S. Const. art. I, § 8, cl. 3. Does that

include the power to regulate the conduct of American

citizens abroad? It is hard to know because such cases

“are few and far between.” United States v. Clark, 435

F.3d 1100, 1102 (9th Cir. 2006). See also Anthony J.

Colangelo, The Foreign Commerce Clause, 96 Va. L.

Rev. 949, 950 (2010) (“[U]nlike its Article I, Section 8

sibling, the Interstate Commerce Clause, which has

been scrutinized by generations of lawyers, scholars,

and judges, the Foreign Commerce Clause has received little sustained analytical attention.” (footnotes

omitted)). The Supreme Court has “yet to articulate

the constitutional boundaries beyond which Congress

may not pass in regulating the conduct of citizens

abroad.” Bollinger, 798 F.3d at 209. Meanwhile, a

circuit split has emerged regarding the scope of the

Foreign Commerce Clause relative to its interstate

counterpart. Most circuit courts that have considered

the issue have reasoned that the Constitution grants

Congress greater authority to regulate foreign commerce than interstate commerce. 4 History, text, and

Compare Clark, 435 F.3d at 1103 (“Instead of slavishly

marching down the path of grafting the interstate commerce

framework onto foreign commerce, we step back and take a

global, commonsense approach to the circumstance presented

here.”), and Bollinger, 798 F.3d at 215–16 (“Instead of requiring

that an activity have a substantial effect on foreign commerce, we

hold that the Foreign Commerce Clause allows Congress to

regulate activities that demonstrably affect such commerce.”),

and Durham, 902 F.3d at 1209 (“Because the federalism

considerations underlying the [Interstate Commerce Clause] do

not arise in the regulation of foreign commerce, the economic

and noneconomic distinction, which otherwise discourages the

aggregation of noneconomic activity, is unnecessary.”), and United

States v. Bredimus, 352 F.3d 200, 208 (5th Cir. 2003) (“[D]eference

4

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purpose strongly support this interpretation, at least

as it relates to regulating the conduct of U.S. citizens. 5

1

As the Supreme Court has recognized, “there is

evidence that the Founders intended the scope of the

foreign commerce power to be the greater” as compared to the interstate commerce power. Japan Line,

Ltd. v. Los Angeles Cnty., 441 U.S. 434, 448, 99 S.Ct.

1813, 60 L.Ed.2d 336 (1979). “A primary driver of the

Constitutional Convention of 1787 was to resolve

federal powers over foreign affairs.” Scott Sullivan,

The Future of the Foreign Commerce Clause, 83

[to Congress] applies even more forcefully to cases involving

foreign commerce travel.”), with United States v. Al-Maliki, 787

F.3d 784, 793 (6th Cir. 2015) (expressing skepticism of a broader

interpretation of the Foreign Commerce Clause because of

concerns that it would “allow[ ] the federal government to intrude

on the sovereignty of other nations” and “the liberty of individual

citizens”). See also Park, 938 F.3d at 372 (“In foreign commerce,

the federalism constraints that limit Congress’s interstate

commerce power are absent, and there is a greater need for the

United States to speak with a single voice.”).

Interpreting the Foreign Commerce Clause to permit the

United States to regulate extraterritorially the conduct of foreign

nations or non-U.S. citizens or nationals would implicate unique

foreign sovereignty concerns. See Naomi Harlin Goodno, When the

Commerce Clause Goes International: A Proposed Legal Framework for the Foreign Commerce Clause, 65 Fla. L. Rev. 1139, 1207–

12 (2013). But such concerns do not arise with respect to statutes

like § 2423(c) that regulate the conduct only of U.S. citizens or

nationals. See United States v. Bowman, 260 U.S. 94, 102, 43 S.Ct.

39, 67 L.Ed. 149 (1922) (“Clearly it is no offense to the dignity or

right of sovereignty of Brazil [for the United States] to hold

[citizens of the United States] for [a] crime against the

government to which they owe allegiance.”).

5

11a

Fordham L. Rev. 1955, 1962 (2015). As the Supreme

Court explained a few decades after ratification,

[t]he oppressed and degraded state of commerce previous to the adoption of the constitution can scarcely be forgotten. It was regulated by foreign nations with a single view to

their own interests; and our disunited efforts

to counteract their restrictions were rendered

impotent by want of combination. . . . Those

who felt the injury arising from this state of

things, and those who were capable of estimating the influence of commerce on the

prosperity of nations, perceived the necessity

of giving the control over this important

subject to a single government.

Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 445–46, 6

L.Ed. 678 (1827).

Consistent with that imperative, the records of the

Constitutional Convention and the subsequent state

ratifying conventions are replete with mentions of

commerce in the context of “matters of purely international significance, such as, war, treaties, and the

like,” 6 or discussions “purporting to deal with comSee, e.g., 1 The Records of the Federal Convention of 1787, at

133 (Max Farrand ed., 1911) (Roger Sherman identifying the

regulation of foreign commerce, but not interstate commerce, as

an “object[ ] of the Union”); id. at 413 (James Wilson: “We have

unanimously agreed to establish a general government—[t]hat

the powers of peace, war, treaties, coinage and regulating of

commerce, ought to reside in that government.”); 2 The Debates in

the Several State Conventions on the Adoption of the Federal

Constitution as Recommended by the General Convention at

Philadelphia in 1787, at 124 (Jonathan Elliot ed., 1836)

[hereinafter The Debates in the Several State Conventions]

(Samuel Adams: “[T]here are many parts of [the Constitution] I

esteem as highly valuable, particularly the article which

6

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merce generally . . . [but] focus[ing] exclusively on

some purely international attribute, consequence, or

incident.” 7 Albert S. Abel, The Commerce Clause in the

Constitutional Convention and in Contemporary Comment, 25 Minn. L. Rev. 432, 465 (1941). In contrast,

there is a “paucity” of references directed solely to

interstate commerce, and none “where the grant of

power over commerce between the states was advanced as the basis for independent affirmative

regulation by the federal government.” Id. at 470–71.

No less an authority than James Madison deemed the

Foreign Commerce Clause “the great and essential

power” and the Interstate Commerce Cause as merely

empowers Congress to regulate commerce, to form treaties.”); id.

at 350 (Alexander Hamilton: “The great leading objects of the

federal government, in which revenue is concerned, are to

maintain domestic peace, and provide for the common defence. In

these are comprehended the regulation of commerce, . . . that is, the

whole system of foreign intercourse.” (emphasis added)); 3 id. at

213 (James Monroe discussing trade relationships with Great

Britain, France, and Holland in response to the question of what

“commerce require[s]”); 4 id. at 18 (William Richardson Davie:

“The next head under which the general government may be

considered, is the regulation of commerce. The United States

should be empowered to compel foreign nations into commercial

regulations that were either founded on the principles of justice

or reciprocal advantages.”).

See, e.g., 2 The Debates in the Several State Conventions, supra

note 6, at 106–07 (Nathaniel Gorham responding to a question

about the economic well-being of farmers and yeoman by

discussing commercial treaties with Great Britain); Pamphlets on

the Constitution of the United States, Published During its

Discussion by the People, 1787–1788, at 107 (Paul Leicester Ford

ed., 1888) (Melancthon Smith: “Commerce is to expand her wings,

and bear our productions to all the ports in the world.”); id. at 379

(David Ramsay: “[I]t is probable you will soon obtain such

commercial treaties, as will open to your vessels the West-India

islands, and give life to your expiring commerce.”).

7

13a

“supplemental.” The Federalist No. 42 (James Madison).

It is true that these historical sources do not

expressly assert that the Foreign Commerce Clause

extends extraterritorially. But their tendency to directly link the regulation of foreign commerce with

inherently extraterritorial matters (e.g., war and

treaties) strongly suggests that the Founders envisioned—and did not disclaim—a foreign commerce

power that applied extraterritorially. 8 This explains

Judge Porter expresses a different view of the Foreign

Commerce Clause’s history. He relies primarily on three sources:

(1) Alexander Hamilton’s essay on the Jay Treaty, Alexander

Hamilton, Camillus No. XXXVI (1796), reprinted in 6 The Works

of Alexander Hamilton, at 164–71 (Henry Cabot Lodge ed., 1904);

(2) Chief Justice Marshall’s opinion in Gibbons v. Ogden, 22 U.S.

(9 Wheat.) 1, 6 L.Ed. 23 (1824); and (3) the views expressed by

Edmund Randolph, the first Attorney General of the United

States and the drafter of the first iteration of the Commerce

Clause, Edmund Randolph, Opinion on the Constitutionality of

the Bank (1791), in 21 The Documentary History of the First

Federal Congress of the United States of America, March 4, 1789–

March 3, 1791, at 772 (Charlene Bangs Bickford et al. eds., 2017).

See Porter Concurrence at 188–90. These sources do not bear the

weight our colleague places on them. Hamilton wrote that

“[Congress] can have no obligatory action whatsoever . . . upon

any person or thing within the jurisdiction of a foreign nation,”

Hamilton, Camillus No. XXXVI (1796), reprinted in 6 The Works

of Alexander Hamilton, at 167. But he expressed that opinion in

the context of foreign trade. See id. at 168–69 (“Congress . . . may

regulate, by law, our own trade and that which foreigners come to

carry on with us.” (emphasis added)); id. at 169 (“[Congress]

cannot regulate the trade which we may go to carry on in foreign

countries.” (emphasis added)). Judge Porter is correct that neither

Marshall nor Randolph discussed the extraterritorial application

of the Foreign Commerce Clause. But neither suggested the

contrary either. This is especially telling in Ogden, where Chief

Justice Marshall observed that “[c]ommerce among the States[ ]

cannot stop at the external boundary line of each State, but may

8

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why the Supreme Court has implicitly concluded that

the Sherman Antitrust Act, as applied to foreign

companies acting in foreign countries, was a permissible exercise of congressional power under the

Foreign Commerce Clause. See Hartford Fire Ins. Co.

v. California, 509 U.S. 764, 795–96, 113 S.Ct. 2891, 125

L.Ed.2d 612 (1993); see also id. at 813–14, 113 S.Ct.

2891 (Scalia, J., dissenting) (“[T]his Court has repeatedly upheld [Congress’s foreign commerce] power to

make laws applicable to persons or activities beyond

our territorial boundaries where United States interests are affected.” (emphasis added) (first citing Ford

v. United States, 273 U.S. 593, 621–23, 47 S.Ct. 531, 71

L.Ed. 793 (1927); then citing United States v. Bowman,

260 U.S. 94, 98–99, 43 S.Ct. 39, 67 L.Ed. 149 (1922);

and then citing American Banana Co. v. United Fruit

Co., 213 U.S. 347, 356, 29 S.Ct. 511, 53 L.Ed. 826

(1909))).

2

The text of the Foreign Commerce Clause also

“reflects the Founders’ objective to provide broader

authority” to Congress than under the Interstate

Commerce Clause. Durham, 902 F.3d at 1201. “Comprehensive as the word ‘among’ is [in the Interstate

Commerce Clause], it may very properly be restricted

to that commerce which concerns more States than

one.” United States v. Lopez, 514 U.S. 549, 553, 115

S.Ct. 1624, 131 L.Ed.2d 626 (1995) (quoting Gibbons v.

Ogden, 22 U.S. (9 Wheat.) 1, 194, 6 L.Ed. 23 (1824)).

The Foreign Commerce Clause, by contrast, authorizes

Congress to “regulate Commerce with foreign Nabe introduced into the interior,” while declining to specify that

commerce with foreign nations must stop at their borders. Ogden,

22 U.S. at 194.

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tions.” U.S. Const. art. I, § 8, cl. 3 (emphasis added).

Contemporaneous definitions of “with” included:

“noting the means,” “in mutual dealing,” and “noting

connection.” 2 Samuel Johnson, Dictionary of the

English Language (1755).

These definitions of “with” do not render the Foreign

Commerce Clause limitless. For example, the word

“connection” “signifies that whatever conduct Congress is attempting to regulate . . . should link the

foreign nation and the United States.” Goodno, supra

n.5, at 1203 (emphasis added). But they do suggest

that Congress’s power to regulate foreign commerce

is more expansive than its power to regulate interstate

commerce—at least with respect to “persons or activities . . . where United States interests are affected.” 9

Hartford Fire Ins. Co., 509 U.S. at 813–14, 113 S.Ct.

2891 (Scalia, J., dissenting). Consistent with this

reasoning, the Supreme Court has repeatedly compared the Foreign Commerce Clause to the Indian

Commerce Clause, which uses the same preposition

(“with”), U.S. Const., art I, § 8, cl. 3, and grants Congress “plenary and exclusive” power to legislate with

respect to Indian tribes, Haaland v. Brackeen, 599 U.S.

255, 272, 143 S.Ct. 1609, 216 L.Ed.2d 254 (2023)

(cleaned up); see, e.g., United States v. Forty-Three

Gallons of Whiskey, 93 U.S. 188, 194, 23 L.Ed. 846

Judge Porter asserts that “Congress lacks any power to

regulate inside sovereign nations under the Foreign Commerce

Clause.” Porter Concurrence at 194. If he is correct about that,

numerous federal criminal statutes with extraterritorial application would be unconstitutional. See, e.g., 15 U.S.C. §§ 78dd-1

et seq. (bribing foreign government officials); 18 U.S.C. § 2332

(killing or injuring a U.S. national while abroad); 18 U.S.C.

§ 1956(f) (money laundering); 18 U.S.C. §§ 470–74 (counterfeiting

abroad); 18 U.S.C. § 1512(a), (h) (threatening a federal witness or

informant).

9

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(1876); Buttfield v. Stranahan, 192 U.S. 470, 493, 24

S.Ct. 349, 48 L.Ed. 525 (1904).

3

A final reason for deeming Congress to have more

expansive powers under the Foreign Commerce

Clause than the Interstate Commerce Clause is that

the important federalism concerns applicable to the

latter have no salience with the former. See Bd. of Trs.

of Univ. of Ill. v. United States, 289 U.S. 48, 59, 53

S.Ct. 509, 77 L.Ed. 1025 (1933). While the interstate

commerce power must not be permitted to “effectually

obliterate the distinction between what is national and

what is local,” Lopez, 514 U.S. at 557, 115 S.Ct. 1624,

the purpose of the Foreign Commerce Clause is to

equip the United States “[i]n international relations

and with respect to foreign intercourse” to “act through

a single government with unified and adequate

national power,” Bd. of Trs., 289 U.S. at 59, 53 S.Ct.

509—in other words, to speak with “one voice,” Japan

Line, 441 U.S. at 451, 99 S.Ct. 1813.

It is true that foreign nations, unlike the States,

“have never ceded a portion of their sovereignty to the

federal government” and “are unprotected from federal

encroachment by political mechanisms inherent in the

federal law-making process.” Colangelo, supra, at 955.

And the Framers acknowledged “the perfect equality

of nations,” in which no foreign nation has a right to

impose a rule on another. The Antelope, 23 U.S. (10

Wheat.) 66, 122, 6 L.Ed. 268 (1825) (Marshall, C.J.); see

Colangelo, supra, at 976 (describing Chief Justice

Marshall’s views as “emblematic of the time”). 10 But

Judge Porter also emphasizes the sovereignty of foreign

nations to control their respective territories. See Porter Concurrence at 189 (first citing The Schooner Exch. v. McFaddon,

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while the Constitution grants no protection to foreign

nations, they may have recourse to international law

to protect their sovereignty. See Restatement (Third) of

Foreign Relations Law of the United States §§ 401–02

(1987).

***

For the reasons stated, there is strong evidence that

Congress has more expansive power under the Foreign

Commerce Clause than the Interstate Commerce

Clause. But because the Supreme Court has not

articulated the scope of that power, we will pursue the

more restrained course and again apply the “timetested framework” outlined in United States v. Lopez.

Pendleton, 658 F.3d at 308 (cleaned up). 11 As we

11 U.S. (7 Cranch) 116, 136, 3 L.Ed. 287 (1812); and then citing

The Antelope, 23 U.S. at 122). But it is difficult to see how Clay’s

prosecution under § 2423(c) infringes Haiti’s sovereignty. “[T]here

is no question of international law” that “[b]y virtue of the

obligations of citizenship, the United States retained its authority

over [Clay], and he was bound by its laws made applicable to him

in a foreign country.” Blackmer, 284 U.S. at 436–37, 52 S.Ct. 252;

see also Restatement (Third) of Foreign Relations Law § 402

(1987) (noting that it is uncontroversial as a matter of international law that a nation may exercise jurisdiction over “the

activities . . . of its nationals outside as well as within its territory”

(emphasis added)). Nor is there any evidence in the record that

Haiti sought to prosecute Clay under its criminal laws.

Though the Supreme Court “has never struck down an act of

Congress as exceeding its powers to regulate foreign commerce,”

Clark, 435 F.3d at 1113, it has primarily assessed the scope of

the Foreign Commerce Clause in cases involving challenges to

state laws (i.e., the dormant Foreign Commerce Clause), see, e.g.,

Japan Line, 441 U.S. at 436, 99 S.Ct. 1813 (California ad valorem

property tax applied to cargo containers owned by certain Japanese shipping companies); Container Corp. of Am. v. Franchise Tax

Bd., 463 U.S. 159, 103 S.Ct. 2933, 77 L.Ed.2d 545 (1983)

(California income tax on corporations calculated by the amount

11

18a

reasoned in Pendleton, we need not outline the precise scope of the Foreign Commerce Clause because

§ 2423(c) is permissible under “the narrower standard

articulated in Lopez.“ Id.

B

Applying the Lopez framework to Clay’s Foreign

Commerce Clause challenge, § 2423(c) is constitutional only if it fits into one of the “three broad

categories of activity that Congress may regulate

under its commerce power”: (1) channels of foreign

commerce; (2) instrumentalities of foreign commerce;

and (3) activities that substantially affect foreign

commerce. See Lopez, 514 U.S. at 558–59, 115 S.Ct.

1624. For the reasons below, as applied to the

prohibition of Clay’s noncommercial conduct, § 2423(c)

constitutes a regulation of both the channels of foreign

commerce and activities that substantially affect

foreign commerce.

1

In rejecting Clay’s challenge to § 2423(c), the District

Court correctly concluded that Pendleton “forecloses”

his “arguments regarding sex tourism and his lack of

intent at the time he traveled to Haiti” because

Pendleton “expressly addressed the facial validity” of

§ 2423 “insofar as [the statute] . . . criminalized

noncommercial sex acts.” 12 App. 15 (emphasis added).

of their worldwide business located in California); Wardair Can.,

Inc. v. Fla. Dep’t of Revenue, 477 U.S. 1, 106 S.Ct. 2369, 91 L.Ed.2d

1 (1986) (Florida statute providing for state sales tax for aviation

fuel).

Clay argues that § 2423(c) is unconstitutional both on its face

and as applied to him. Because we rejected an identical facial

challenge to § 2423(c) in Pendleton, we consider only Clay’s asapplied challenge here. See Reich v. D.M. Sabia Co., 90 F.3d 854,

12

19a

In Pendleton, the defendant sexually molested a minor

six months after arriving in Germany. 658 F.3d at 301.

After he was released from a German prison,

Pendleton returned to the United States and was

indicted under § 2423(c). Id. On appeal, he argued that

the statute was facially unconstitutional. Id. at 302.

Clay seizes on the distinction between facial and asapplied challenges, asserting that the District Court

failed to account for any of [his] unique facts

. . . , including his residency in Haiti, the fact

that his illicit conduct occurred in his own

home with a member of his own family, the

fact that the criminal conduct was untethered

to any international travel, and the fact that

he has no history of engaging in commercial

illicit sexual conduct or child pornography.

Clay Br. 32. But Pendleton’s reasoning applies equally

to all noncommercial sexual abuse because it relied on

the “authority of Congress to keep the channels of . . .

commerce free from immoral and injurious uses.” 658

F.3d at 308 (quoting Heart of Atlanta Motel, Inc. v.

United States, 379 U.S. 241, 256, 85 S.Ct. 348, 13

L.Ed.2d 258 (1964)). See also N. Am. Co. v. SEC, 327

U.S. 686, 705, 66 S.Ct. 785, 90 L.Ed. 945 (1946)

(“Congress may impose relevant conditions and

requirements on those who use the channels of

interstate commerce in order that those channels will

858 (3d Cir. 1996) (“[A] panel of this court is bound by, and lacks

authority to overrule, a published decision of a prior panel.”).

Clay’s efforts to distinguish the facts in his case from those in

Pendleton are pertinent only to his as-applied challenge. See

United States v. Marcavage, 609 F.3d 264, 273 (3d Cir. 2010)

(“A facial attack tests a law’s constitutionality based on its text

alone and does not consider the facts or circumstances of a

particular case.”).

20a

not become the means of promoting or spreading evil,

whether of a physical, moral or economic nature.”).

Citing our decision in United States v. Shenandoah,

595 F.3d 151, 161 (3d Cir. 2010), we analogized

§ 2423(c) to the Sex Offender Registration and Notification Act, which we concluded was a proper regulation of the channels of interstate commerce even

though it does not require intent by the sex offender to

violate federal registration requirements. Pendleton,

658 F.3d at 309–10. Based on this, we held that

“because the jurisdictional element in § 2423(c) has an

express connection to the channels of foreign commerce, . . . it is a valid exercise of Congress’s power

under the Foreign Commerce Clause.” Id. at 311

(internal quotation marks and footnote omitted). This

reasoning applies equally to Clay as it did to

Pendleton.

Clay argues that Pendleton should be read more

narrowly because the illegal conduct at issue there

was limited to what “was either inherently commercial

or involved travel with an improper intent.” Clay Br.

33. That argument misreads Pendleton. Pendleton was

indicted for engaging in “noncommercial illicit sexual

conduct” in Germany six months after traveling there

from the United States, and our opinion nowhere

suggests that he traveled abroad with an intent to

engage in sexual crimes. See Pendleton, 658 F.3d at

301–02, 311.

As Clay points out, some colleagues on our sister

courts disagree with our channels-of-commerce

analysis of § 2423(c). Unlike the Sex Offender Registration and Notification Act,

§ 2423(c) neither punishes the act of traveling in

foreign commerce, [n]or the wrongful use or

21a

impediment of use of the channels of foreign commerce. Rather, it punishes future conduct in a

foreign country entirely divorced from the act of

traveling except for the fact that the travel occurs

at some point prior to the regulated conduct.

Clark, 435 F.3d at 1119 (Ferguson, J., dissenting).

Consistent with that view, some judges have expressed

concern that interpreting § 2423(c) as a valid exercise

of Congress’s power to regulate the channels of commerce would “permit Congress to subject an American

to federal prosecution for any offense committed

abroad.” Durham, 902 F.3d at 1256 (Hartz, J., dissenting). See also United States v. Rife, 33 F.4th 838,

845 (6th Cir. 2022) (similar). However compelling

these concerns may be in the abstract, they do not

apply here because Clay’s case does not involve just

“any offense committed abroad.”

Section 2423(c) is constitutional under the Foreign

Commerce Clause if a defendant’s travel in foreign

commerce “encompasses movement abroad that maintains some nexus with the United States.” United

States v. Schmidt, 845 F.3d 153, 157 (4th Cir. 2017).

Clay did just that. He traveled between the United

States and Haiti multiple times each year; he owned

and rented out a house in the United States; he availed

himself of the Washington state court system to adopt

his children (including the minor victim); and he listed

addresses within the United States to acquire passports for his adopted children and a driver’s license for

himself. Even if Clay had been a resident of Haiti as

he claims, 13 he never abandoned his U.S. citizenship or

Clay and the Government disagree on this point, compare

Clay Br. 6, 26, with Gov’t Br. 24, and the District Court declined

to adjudicate it, see Tr. at 163–164.

13

22a

residence. Based on “all relevant facts and circumstances,” id., it was thus permissible for Congress to

criminalize Clay’s conduct under § 2423(c) pursuant to

its power to regulate the channels of foreign commerce—of which Clay availed himself repeatedly for

years.

2

While we did not consider in Pendleton whether

§ 2423(c) also satisfied the third Lopez category, 658

F.3d at 311 n.7, we now hold there is a rational basis

for concluding that § 2423(c) regulates “activities

[that], taken in the aggregate, substantially affect

[foreign] commerce,” see United States v. Kukafka, 478

F.3d 531, 535–36 (3d Cir. 2007) (citation omitted). Clay

asserts that “[t]he noncommercial sexual abuse of a

family member in the privacy of one’s own home . . .

has no effect on the broader market for commercial

illicit sexual conduct.” Clay Br. 23. The Government

responds that § 2423(c) represents “an essential

component of Congress’s overall scheme to combat

commercial sex tourism by Americans abroad.” Gov’t

Br. 25 (cleaned up). We agree with the Government.

Although noncommercial sexual abuse itself is not

economic, 14 “[i]nternational sex tourism is a multiAuthoritative dictionaries support interpreting the word

“economic” to require a relationship to “the production, distribution, and consumption of goods and services.” Economic,

Merriam-Webster, https://perma.cc/GWL2-4PBM. See also Economics, Oxford English Dictionary, https://perma.cc/8EWL-A7TY

(“The branch of knowledge . . . that deals with the production,

distribution, consumption, and transfer of wealth”); Economics,

Black’s Law Dictionary (12th ed. 2024) (“The social science

dealing with the production, distribution, and consumption of

goods and services”). This understanding of “economic” aligns

with how the Supreme Court has distinguished between

14

23a

billion dollar industry.” United States v. Lindsay, 931

F.3d 852, 862 (9th Cir. 2019). See also Najat Maalla

M’jid, Report of the Special Rapporteur on the Sale of

Children, Child Prostitution and Child Pornography,

U.N. Doc. A/HRC/22/54, at 9 (Dec. 24, 2012). “By 2002,

Congress had recognized the problem of sex tourism

was growing despite previous efforts to address it.”

Durham, 902 F.3d at 1210 (citing H.R. Rep. No. 107525, at 2 (2002)). “The legislative record contains

statements expressing concern that the sex tourism

industry ‘support[s] one of the fastest growing areas

of international criminal activity.’” Id. (quoting

149 Cong. Rec. H2405 (2003) (statement of Rep.

Sensenbrenner)).

As Congress recognized before enacting § 2423(c),

“[m]any developing countries have fallen prey to the

serious problem of international sex tourism,” but “sex

tourists often escape prosecution in [their] host

countries” “for reasons ranging from ineffective law

enforcement, lack of resources, corruption, and generally immature legal systems.” H.R. Rep. No. 107-525,

at 2–3 (2002). “The pathway to the enactment of

§ 2423(c) [thus] manifests a purpose to address the

foreign commerce problem of the international sex

trade.” 15 Durham, 902 F.3d at 1211. More specifically,

economic and non-economic activities in its Interstate Commerce

Clause jurisprudence. Compare Lopez, 514 U.S. at 560, 115 S.Ct.

1624 (possession of a gun in a local school zone), and Morrison,

529 U.S. at 613, 120 S.Ct. 1740 (gender-motivated crimes of

violence), with Gonzales v. Raich, 545 U.S. 1, 25–26, 125 S.Ct.

2195, 162 L.Ed.2d 1 (2005) (homegrown marijuana).

Clay suggests that the lack of specific congressional findings

on the effect of noncommercial sexual abuse on foreign commerce

precludes a finding that § 2423(c) regulates activities that

substantially affect commerce in the aggregate. But “[w]hile

congressional findings are certainly helpful in reviewing the

15

24a

§ 2423(c) was passed “to fill the enforcement gap

created by § 2423(b)‘s intent requirement.” Id. at 1196.

Criminalizing non-commercial sexual abuse

is . . . conducive to eliminating commercial

child exploitation given the enforcement

difficulties posed by a requirement to prove a

quid-pro-quo transaction. Proof of the commercial aspect of child sexual exploitation can

be exceptionally elusive. International child

sex tourists often use travel agencies, transport, accommodation[,] and other tourismrelated services that facilitate contact with

children, and everyone involved has strong

incentives to disguise their unlawful activities. . . . The transactional component of such

inducements is systematically denied by and

hidden from the child, the child’s family, and

the community, which makes it challenging

for law enforcement to uncover. Given the

nature of commercial child sexual exploitation, Congress had a rational basis to conclude that a law requiring proof of commercial

activity would result in dramatic underenforcement.

United States v. Park, 938 F.3d 354, 373–74 (D.C. Cir.

2019) (emphasis added) (cleaned up).

Clay argues that his case “falls . . . squarely [within]

the confines of Lopez and Morrison in the sense that

[there is] a regulation over conduct as opposed to a

regulation over the use of a fungible item.” Oral Arg.

substance of a congressional statutory scheme, particularly when

the connection to commerce is not self-evident, . . . the absence of

particularized findings does not call into question Congress’[s]

authority to legislate.” Raich, 545 U.S. at 21, 125 S.Ct. 2195.

25a

Tr. at 50. Morrison, after all, explains that there is “no

better example of the police power, which the Founders

denied the National Government and reposed in the

States, than the suppression of violent crime and

vindication of its victims.” 529 U.S. at 618, 120 S.Ct.

1740. Be that as it may, Gonzales v. Raich, 545 U.S. 1,

125 S.Ct. 2195, 162 L.Ed.2d 1 (2005), is the closer

analogue to Clay’s case.

In Raich, two California residents sought to

“prohibit[ ] the enforcement of the federal Controlled

Substances Act” “to the extent it prevent[ed] them

from possessing, obtaining, or manufacturing cannabis

for their personal medical use.” Id. at 7, 125 S.Ct. 2195.

The Supreme Court denied their request, reasoning

that Congress is not “required . . . to legislate with

scientific exactitude. When Congress decides that the

total incidence of a practice poses a threat to a national

market, it may regulate the entire class.” Id. at 17, 125

S.Ct. 2195 (cleaned up). See also Perez v. United States,

402 U.S. 146, 154, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971)

(“[W]hen it is necessary in order to prevent an evil to

make the law embrace more than the precise thing to

be prevented it may do so.” (quoting Westfall v. United

States, 274 U.S. 256, 259, 47 S.Ct. 629, 71 L.Ed. 1036

(1927))). In light of the “enforcement difficulties that

attend distinguishing between marijuana cultivated

locally and marijuana grown elsewhere,” the Court

“conclud[ed] that Congress had a rational basis for

believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a

gaping hole in the [Controlled Substances Act].” Raich,

545 U.S. at 22, 125 S.Ct. 2195 (emphasis added).

Raich is thus distinguishable from Lopez, which

involved a “brief, single-subject statute” that did not

comprise “an essential part of a larger regulation

26a

of economic activity.” Id. at 23–24, 125 S.Ct. 2195

(cleaned up). Tellingly, the majority in Lopez suggested

that the result might have differed had the statute at

issue been “an essential part of a larger regulation

of economic activity, in which the regulatory scheme

could [have] be[en] undercut unless the intrastate

activity were regulated.” 514 U.S. at 561, 115 S.Ct.

1624. Similarly, Morrison involved “a federal civil

remedy for the victims of gender-motivated crimes of

violence,” which, unlike the statute in Raich, did not

purport to “regulate economic activity” or any kind of

market. Raich, 545 U.S. at 25, 125 S.Ct. 2195.

Just as the statutory prohibition on homegrown

marijuana addressed in Raich formed part of a larger

regulatory scheme to regulate the illicit drug market,

§ 2423(c) is a key component of a comprehensive

framework to combat the international sex tourism

market. See Durham, 902 F.3d at 1214. So Congress

had a rational basis to conclude that the intent

requirement in § 2423(b) was “undercutting sex

tourism prosecutions” and that “shedding the mens

rea requirement” would enable the prosecution of

individuals who would otherwise “continue to fuel the

international sex tourism market.” Id. at 1212 n.19.

The petitioners in Lopez and Morrison both proffered

attenuated, but-for causal chains in which the

prohibited activities of gun ownership near schools

and domestic violence purportedly produced effects on

interstate commerce far downstream. 16 Unlike those

See Brief for Petitioner at 9, Lopez, 514 U.S. 549, 115 S.Ct.

1624, 131 L.Ed.2d 626, (No. 93-1260), 1994 WL 242541, at *9

(“Through the mechanism of insurance, the economic consequences of violent crime are spread throughout the nation. In

addition, violent crime affects interstate commerce by reducing

the willingness of other individuals to travel to areas that are

perceived to be unsafe. . . . Congress [also] had ample basis for

16

27a

attenuated causal chains, § 2423(c) is, like the

statutory provision in Raich, an essential part of a

broader scheme to directly regulate a commercial

market. 17 See Raich, 545 U.S. at 38–39, 125 S.Ct. 2195

(Scalia, J., concurring) (“Lopez and Morrison . . . do

not declare noneconomic intrastate activities to be

categorically beyond the reach of the Federal Governconcluding that the presence of guns in schools poses an

unacceptable threat to the proper functioning of primary and

secondary education. Congress had ample basis as well to

conclude that disruption of the educational process would have

substantial deleterious effects on the national economy.”); Brief

for Petitioner at 20, Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146

L.Ed.2d 658, (Nos. 99-5, 99-29), 1999 WL 1037259, at *20

(“Congress rationally determined that gender-motivated violence

imposes a substantial burden on interstate commerce, impeding

its victims’ efforts to work, travel, and engage in other economic

activity. Section 13981 is specifically designed to address the

economic consequences of gender[-]motivated violence by providing victims a means of recovering their lost earnings, medical

expenses, and other pecuniary and non-pecuniary losses.”).

The Government and our sister courts have suggested additional ways in which noncommercial child sexual abuse can affect

the commercial market. See Park, 938 F.3d at 373 (“[N]oncommercial sexual abuse of minors can drive commercial demand

for sex with minors by reinforcing the idea that such conduct is

acceptable, or by allowing traffickers to use non-commercial arrangements to entice patrons into engaging in subsequent commercial behavior.”); Bollinger, 798 F.3d at 219 (“[N]on-commercial

sex with minors . . . could affect the price for child prostitution

services and other market conditions in the child prostitution

industry.” (citation omitted)); Gov’t Br. 25 (“Child sexual abuse

victims are . . . far more likely to be victims of commercial sexual

exploitation, cementing the interconnectedness of the two violations.” (cleaned up)). We are not so sure because Lopez cautions

against “pil[ing] inference upon inference in a manner that would

bid fair to convert congressional authority under the Commerce

Clause to a general police power of the sort retained by the

States.” 514 U.S. at 567, 115 S.Ct. 1624.

17

28a

ment. Neither case involved the power of Congress to

exert control over intrastate activities in connection

with a more comprehensive scheme of regulation.”).

Clay responds that Raich is inapposite because it

involved fungible goods. But neither the holding nor

the reasoning in Raich is limited to illegal goods,

and the same economic principles apply to a market

for illegal services. So we hold that § 2423(c) is also

permissible under Congress’s power to regulate activities that substantially affect commerce.

V

The Necessary and Proper Clause, as implementing

the treaty power, provides an independent basis for

Congress’s power to enact § 2423(c). U.S. Const. art. I,

§ 8, cl. 18. The Constitution grants the President the

power to make treaties with foreign nations, which

become part of “the supreme Law of the Land” when at

least two-thirds of the Senate consents. U.S. Const. art.

II, § 2, cl. 2; id. art. VI, cl. 2.

As the Supreme Court made clear in Missouri v.

Holland, treaties may regulate purely intrastate—

and, analogously, foreign intranational—conduct. See

252 U.S. 416, 431–32, 435, 40 S.Ct. 382, 64 L.Ed. 641

(1920) (upholding the Migratory Bird Treaty Act,

which prohibited the killing, capturing, or selling of

migratory birds, including within an individual State).

The Court further held in Holland that “[i]f [a] treaty

is valid there can be no dispute about the validity of

[a] statute under Article [I], Section 8, as a necessary

and proper means to execute the powers of the

Government.” 18 Id. at 432, 40 S.Ct. 382. Clay attempts

In Bond v. United States, 572 U.S. 844, 134 S.Ct. 2077,

189 L.Ed.2d 1 (2014), the Supreme Court “interpreted a criminal

statute narrowly to avoid reconsidering” this language in

18

29a

to characterize this language as dicta, but we are

unconvinced. We have defined dicta “as a statement in

a judicial opinion that could have been deleted without

seriously impairing the analytical foundations of the

holding.” In re McDonald, 205 F.3d 606, 612 (3d Cir.

2000) (cleaned up). And this language constitutes

the main, if not the only, analysis justifying the

constitutionality of the statute at issue in Holland. So

it is not dicta.

“[I]n determining whether the Necessary and

Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to

see whether the statute constitutes a means that is

rationally related to the implementation of a constitutionally enumerated power.” United States v.

Comstock, 560 U.S. 126, 134, 130 S.Ct. 1949, 176

L.Ed.2d 878 (2010) (emphasis added). The Supreme

Court “long ago rejected the view that the Necessary

and Proper Clause demands that an Act of Congress

be absolutely necessary to the exercise of an enumerated power.” Jinks v. Richland Cnty., 538 U.S. 456, 462,

123 S.Ct. 1667, 155 L.Ed.2d 631 (2003) (cleaned up).

Rather, a statute falls within the Clause’s ambit if it is

“convenient, or useful or conducive to the authority’s

beneficial exercise.” Comstock, 560 U.S. at 133–34, 130

S.Ct. 1949 (cleaned up). See also Sabri v. United States,

541 U.S. 600, 607, 124 S.Ct. 1941, 158 L.Ed.2d 891

(2004) (reasoning that the Necessary and Proper

Holland, but “[t]hree Justices would have reached the constitutional question and struck down the statute as exceeding

Congress’s authority.” Pepe, 895 F.3d at 690 n.6; see Bond, 572 U.S.

at 878–79, 882, 134 S.Ct. 2077 (Scalia, J., concurring); id. at 894–

96, 134 S.Ct. 2077 (Thomas, J., concurring); id. at 897, 134 S.Ct.

2077 (Alito, J. concurring). But Holland remains good law, and to

determine otherwise would be to overread Bond.

30a

Clause empowers Congress to “fill[ ] . . . regulatory

gaps”). That means a treaty-implementing statute

need not be identical to the treaty, see, e.g., United

States v. Belfast, 611 F.3d 783, 806–08 (11th Cir. 2010),

and “Congress’s power to give [a] treaty practical

effect . . . is not confined to [its] minimum

requirements,” Park, 938 F.3d at 369.

As Clay notes, “[t]he legislative history of the

PROTECT Act does not include a statement regarding

the source of Congress’s authority to enact § 2423(c).”

Pendleton, 658 F.3d at 302 n.1; see Clay Br. 36–37, 39

(attempting to distinguish § 2423(c) from the Migratory Birds Treaty Act in Holland). But that omission is

immaterial because “[t]he question of the constitutionality of [an] action taken by Congress does not

depend on recitals of the power which it undertakes to

exercise.” Nat’l Fed. of Indep. Bus. v. Sebelius, 567 U.S.

519, 570, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012)

(cleaned up). “A court must be able to discern a basis

for Congress’s exercise of an enumerated power, but

that does not mean that a ‘law must be struck down

because Congress used the wrong labels’ or failed to

identify the source of its power.” Park, 938 F.3d at 363

(quoting Nat’l Fed. of Indep. Bus., 567 U.S. at 569, 132

S.Ct. 2566).

The Optional Protocol to the United Nations Convention on the Rights of the Child on the Sale of

Children, Child Prostitution and Child Pornography

(May 25, 2000), 2171 U.N.T.S. 227 [hereinafter

Optional Protocol], seeks to eliminate commercial

child sexual exploitation. Ratified by the Senate in

2002, see 148 Cong. Rec. S5717 (daily ed. June 18,

2002), the Optional Protocol binds 178 nations,

including the United States, see Status of Ratification

Interactive Dashboard, U.N. Hum. Off. of the High

31a

Comm’r for Hum. Rts., available at https://perma

.cc/8EWL-A7TY. The Optional Protocol expressed the

need for a “holistic approach” “addressing the contributing factors, including . . . irresponsible adult sexual

behaviour,” to facilitate the elimination of “the widespread and continuing practice of sex tourism, to

which children are especially vulnerable.” Optional

Protocol, pmbl. At “a minimum,” state parties to the

Optional Protocol must criminalize “[o]ffering, delivering[,] or accepting, by whatever means, a child for the

purpose of . . . [s]exual exploitation,” “whether such

offences are committed domestically or transnationally or on an individual or organized basis.” Id. art.

3(1). Parties to the Optional Protocol are also permitted to “take such measures as may be necessary to

establish . . . jurisdiction over [these] offences” “[w]hen

the alleged offender is a national of that State.” Id. art.

4(2).

While “the Protocol does not itself specifically address non-commercial child sexual abuse,” Park, 938

F.3d at 368, § 2423(c) is rationally related to implementing the purpose of the Optional Protocol: combatting commercial child sex tourism. Perhaps most

importantly, it helps “clos[e] enforcement gaps that

otherwise could . . . hinder[ ] the objectives of the

Optional Protocol.” Id. Relatedly, any loophole in

domestic law “could encourage American sex tourists—who by some estimates comprise one quarter of

all sex tourists globally—to go abroad seeking noncommercial sex with minors that, had it occurred in

the United States, would be criminalized as statutory

rape.” Id. See also Lindsay, 931 F.3d at 863 (similar).

“[T]he Constitution does not envision or condone a

vacuum of all police power, state and federal, within

which citizens may commit acts abroad that would

32a

clearly be crimes if committed at home.” Bollinger, 798

F.3d at 219. This is especially true where, as here,

this vacuum would “create[ ] or exacerbate[ ] identified

risks to treaty partners” in the Optional Protocol. Park,

938 F.3d at 369. Allowing such a vacuum “could

undoubtedly have broad ramifications on our standing

in the world.” Bollinger, 798 F.3d at 219. Additionally,

§ 2423(c) may reduce the ability of traffickers to use

noncommercial arrangements to entice children into

engaging in subsequent commercial sex acts, or

decrease the overall number of child sexual abuse

victims—and thus the number of victims of commercial sexual exploitation. 19 See Bollinger, 798 F.3d at

219. See also Jay G. Silverman et al., The Relationship

Between Commercial Sexual Exploitation of Children

(CSEC) and Childhood Sexual Abuse (CSA) Among

Boys and Girls in Haiti, 29 Int’l J. of Inj. Control &

Safety Promotion 86 (2022). For these reasons, we

conclude that § 2423(c) is rationally related to

implementing the goals of the Optional Protocol.

Our opinion should not be read to support a

Necessary and Proper Clause that imposes no limits

on the treaty power. At least four constraints exist.

First, a statute authorized as a necessary and proper

exercise of the treaty power remains subject to the Due

Process Clause and other protections enshrined in the

Bill of Rights. See Asakura v. City of Seattle, 265 U.S.

332, 341, 44 S.Ct. 515, 68 L.Ed. 1041 (1924); Boos v.

Barry, 485 U.S. 312, 324, 108 S.Ct. 1157, 99 L.Ed.2d

333 (1988). Second, Congress “may not . . . point to

any tangentially related treaty to defend a conUnder the Interstate Commerce Clause framework, these

chains of causation rely on too many inferences, see Lopez, 514

U.S. at 567, 115 S.Ct. 1624, but the rational basis standard of the

Necessary and Proper Clause is not limited by that principle.

19

33a

stitutionally suspect statute.” Park, 938 F.3d at 369

(emphasis added). That presents no problem here

because the Optional Protocol is especially related to

§ 2423(c) insofar as it expressly contemplates statutes

that “may be necessary to establish . . . jurisdiction”

over nationals who commit commercial sex offenses—

which § 2423(c) does through both its “travels in

foreign commerce” and “resides . . . in a foreign

country” prongs. Optional Protocol, art. 4(2). Third, “an

act of Congress ought never to be construed to violate

the law of nations if any other possible construction

remains.” Murray v. The Schooner Charming Betsy, 6

U.S. (2 Cranch) 64, 118, 2 L.Ed. 208 (1804). Finally,

practical political considerations, both domestic and

international, prevent overreach by Congress. See

Oona A. Hathaway, Treaties’ End: The Past, Present,

and Future of International Lawmaking in the United

States, 117 Yale L.J. 1236, 1249–50 (2008). None of

these limitations cuts against our conclusion that

§ 2423(c) is “plainly necessary and proper to implement the goals of the Optional Protocol.” Park, 938 F.3d

at 370.

VI

We turn finally to Clay’s sentencing challenges. He

argues that the District Court committed procedural

error because it “almost entirely ignored the farshorter sentences—imposed for objectively worse conduct—that [he] highlighted in his sentencing memorandum, as well as the other factors he identified in

support of his request for a downward variance.” Clay

Br. 40. He also briefly contends that his sentence is

substantively unreasonable. Both arguments are unpersuasive.

A sentence is procedurally reasonable if the District

Court: “(1) correctly calculated the . . . advisory

34a

Guidelines range; (2) appropriately considered any

motions for a departure under the Guidelines; and

(3) gave meaningful consideration to the sentencing

factors set forth in 18 U.S.C. § 3553(a).” United States

v. Freeman, 763 F.3d 322, 335 (3d Cir. 2014). We

consider whether the District Court “produce[d] a

record sufficient to demonstrate its rational and

meaningful consideration of the § 3553(a) factors.”

United States v. Begin, 696 F.3d 405, 411 (3d Cir. 2012).

While the District Court was required to “acknowledge

and respond to any properly presented sentencing

argument which ha[d] colorable legal merit and a

factual basis,” United States v. Ausburn, 502 F.3d 313,

329 (3d Cir. 2007), it did not need to discuss meritless

arguments, United States v. Lychock, 578 F.3d 214, 219

(3d Cir. 2009). And § 3553(a) does not “insist[ ] upon a

full opinion in every case.” Rita v. United States, 551

U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007).

Under 18 U.S.C. § 3553(a)(6), a sentencing court

must consider “the need to avoid unwarranted

sentence disparities among defendants with similar

records who have been found guilty of similar

conduct.” So this factor is relevant only if Clay

identifies other defendants whose circumstances

mirrored his own. United States v. Lacerda, 958 F.3d

196, 215 (3d Cir. 2020). He has failed to do so. All but

one of his putative comparators who received lower

sentences than Clay had plea agreements with

appellate waivers or other consideration given, or

pleaded guilty while simultaneously withdrawing

motions to dismiss. Clay did not. The remaining

defendant sexually abused the victim for a “short time

frame” of “approximately two weeks.” Sentencing Tr. at

86, United States v. Maurizio, No. 3:14-cr-00023-001

(W.D. Pa. Mar. 8, 2016), ECF No. 249. In contrast, Clay

committed sexual abuse “numerous times” over the

35a

course of nearly six months. App. 206. In any case, the

District Court meaningfully considered Clay’s

argument. See id. (“Any speculation about what might

have happened had he been charged in some other

jurisdiction . . . does not in the Court’s view create a

sentencing disparity let alone an unwarranted

sentencing disparity.”).

The District Court also adequately addressed Clay’s

arguments for a downward variance. It reasoned that:

(1) Clay’s acceptance of responsibility was already

accounted for by a reduction in his offense level; (2) the

challenges in Clay’s personal life, though significant,

did not mitigate his sexual abuse of the child; (3) the

severity of his conduct justified the sentence whether

his risk of recidivism was high or low; and (4) his

support network of friends and family might be unable

to detect or deter future offenses. It also reviewed the

victim impact statement in which the victim’s mother

requested only that Clay not be sentenced to 30 years’

imprisonment (which he was not). The District Court

thus sufficiently justified its decision to deny Clay’s

request for a downward variance.

Finally, we reject Clay’s challenge to his sentence as

substantively unreasonable. He can succeed only if “no

reasonable sentencing court would have imposed the

same sentence on that particular defendant for the

reasons” provided by the District Court. United States

v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc).

Because Clay’s sentence was within the Guidelines

range, it is presumptively reasonable, see United

States v. Pawlowski, 27 F.4th 897, 912 (3d Cir. 2022),

and Clay presents no persuasive argument to overcome this presumption. So the District Court did not

abuse its discretion. See Tomko, 562 F.3d at 567.

***

36a

The question of whether Congress had the power to

enact § 2423(c) is of grave significance. Sadly, many

Americans traveling abroad have sexually abused

children. Today we hold that Congress’s attempt to

ensure that those criminal acts do not find a safe

harbor when they occur outside the United States

constitutes a proper exercise of Congress’s authority

under the Foreign Commerce Clause and the Necessary and Proper Clause, as implementing the treaty

power. In our view, each power alone is sufficient. And

together they provide ample reason to reject Clay’s

challenge to the constitutionality of § 2423(c). We will

thus affirm Clay’s judgment of conviction and sentence.

37a

PORTER, Circuit Judge, concurring.

I agree with the majority that United States v.

Pendleton, 658 F.3d 299 (3d Cir. 2011), forecloses Clay’s

facial and as-applied challenges to 18 U.S.C. § 2423(c)

and (f)(1) 1 under the Foreign Commerce Clause. And I

agree that, under Missouri v. Holland, 252 U.S. 416, 40

S.Ct. 382, 64 L.Ed. 641 (1920), § 2423(c) was a valid

exercise of Congress’s power under the Necessary and

Proper Clause.

I write separately because, respectfully, those

precedents are flawed. First, Pendleton wrongly adopted the Supreme Court’s framework for the Interstate

Commerce Clause—articulated in United States v.

Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626

(1995)—as a floor to Congress’s power under the

Foreign Commerce Clause. And after adopting that

framework, Pendleton misapplied it. The majority’s

attempt to buttress Pendleton’s holding compounds

that opinion’s errors. Were we writing on a clean slate,

I would join the Sixth Circuit and several other judges

in holding that § 2423(c) exceeds Congress’s power

under the Foreign Commerce Clause. See, e.g., United

States v. Rife, 33 F.4th 838, 845 (6th Cir. 2022), cert.

denied, ––– U.S. ––––, 143 S. Ct. 356, 214 L.Ed.2d 172

(2022); United States v. Durham, 902 F.3d 1180, 1241

(10th Cir. 2018) (Hartz, J., dissenting); United States v.

Clark, 435 F.3d 1100, 1117 (9th Cir. 2006) (Ferguson,

J., dissenting); United States v. Bianchi, 386 F. App’x

156, 163 (3d Cir. 2010) (not precedential) (Roth, J.,

concurring in part and dissenting in part).

Second, Holland undermined the Constitution’s

structure of enumerated and limited legislative powI will refer to 18 U.S.C. § 2423(c) and (f)(1) together as

“§ 2423(c).”

1

38a

ers, requiring us to enforce laws like § 2423(c) that are

not valid under any enumerated power. Although the

majority properly applies Holland here, I join my

colleague and other judges who have urged the

Supreme Court to clarify the scope of that case. See,

e.g., United States v. Bond, 681 F.3d 149, 170 (3d Cir.

2012) (Ambro, J., concurring) (urging the Supreme

Court to “clarify” and “curtail” Holland), rev’d, 572 U.S.

844, 855, 134 S.Ct. 2077, 189 L.Ed.2d 1 (2014) (invoking the constitutional-avoidance canon and declining

to address Holland); Rife, 33 F.4th at 848 (discussing

Holland’s errors); United States v. Park, 938 F.3d 354,

375 (D.C. Cir. 2019) (Griffith, J., concurring) (applying

Holland but observing that it “has come in for some

criticism”).

I. Pendleton and the Foreign Commerce Clause

The Constitution authorizes Congress “to regulate

Commerce with foreign Nations, and among the

several States, and with the Indian Tribes.” U.S. Const.

art. I, § 8, cl. 3. These are referred to as the Foreign,

Interstate, and Indian Commerce Clauses. Haaland

v. Brackeen, 599 U.S. 255, 320, 143 S.Ct. 1609, 216

L.Ed.2d 254 (2023) (Gorsuch, J., concurring). Unlike

the Interstate and Indian Commerce Clauses, “th[e]

[Supreme] Court has never thoroughly explored the

scope of the Foreign Commerce Clause.” Baston v.

United States, 580 U.S. 1182, 1184, 137 S.Ct. 850, 197

L.Ed.2d 478 (2017) (Thomas, J., dissenting from denial

of certiorari) (internal quotation marks and quoted

source omitted). So the courts of appeals have devised

their own frameworks for implementing that clause.

Id. Prior to Clay’s case, Pendleton was our only

precedential opinion interpreting the scope of the

Foreign Commerce Clause.

39a

In Pendleton, given “the absence of Supreme Court

precedent on the [Foreign Commerce Clause],” we

grappled with whether Lopez governs the Foreign

Commerce Clause. 658 F.3d at 307. Lopez held that

Congress may enact a law under the Interstate Commerce Clause if it relates to (1) “the use of the channels of interstate commerce,” (2) “the instrumentalities

of interstate commerce,” or (3) “activities having a

substantial relation to interstate commerce.” 514 U.S.

at 558–59, 115 S.Ct. 1624. Like the majority of our

sister circuits, we “agree[d]” that the Foreign Commerce Clause is broader than the Interstate Commerce Clause because the former is not constrained by

“unique federalism concerns.” Pendleton, 658 F.3d at

308 (internal quotation marks and quoted source

omitted); see United States v. Bollinger, 798 F.3d 201,

210, 215–16 (4th Cir. 2015) (holding that the Foreign

Commerce Clause’s implementing framework must be

broader than Lopez); United States v. Lindsay, 931

F.3d 852, 861–62 (9th Cir. 2019) (same); Park, 938 F.3d

at 374 (same); Durham, 902 F.3d at 1209–10 (same);

but see Rife, 33 F.4th at 844 (holding that Lopez is illsuited for implementing the Foreign Commerce

Clause). But we chose to analyze Pendleton’s constitutional challenge under Lopez’s “time-tested framework,” assuming that it must at the very least constitute the floor to the Foreign Commerce Clause.

Pendleton, 658 F.3d at 308 (internal quotation marks

and quoted source omitted).

We then concluded that § 2423(c) is facially valid

under Lopez’s channels-of-commerce prong. Id. at 311.

Section 2423(c) criminalizes, in part, U.S. citizens

and permanent residents from traveling abroad and

engaging in non-commercial sexual conduct with

minors, including when the individual had no intent to

commit a crime at the time he traveled. Bollinger,

40a

798 F.3d at 218 (“Section 2423(c) removed Section

2423(b)’s condition that an individual could only be

prosecuted if he/she traveled in foreign commerce

‘for the purpose of engaging in any illicit sexual

conduct.’” (quoting 18 U.S.C. § 2423(b))). We held

that § 2423(c)’s “jurisdictional element”—its requirement that an individual traveled at some point in

foreign commerce—is sufficient to establish an “express connection to the channels of foreign commerce.”

Pendleton, 658 F.3d at 311 (internal quotation marks

and quoted source omitted). We analogized § 2423(c) to

the Sex Offender Registration and Notification Act

(“SORNA”), 2 which criminalizes the failure to register

as a sex offender after traveling in interstate commerce. Id. at 309. Because SORNA is constitutional

under Lopez, we reasoned that § 2423(c) must be

constitutional as well. Id. at 310 (referring to United

States v. Shenandoah, 595 F.3d 151, 160–61 (3d Cir.

2010), abrogated on other grounds by Reynolds v.

United States, 565 U.S. 432, 132 S.Ct. 975, 181 L.Ed.2d

935 (2012)).

As we must, the majority applies Pendleton here,

correctly reasoning that it forecloses Clay’s facial and

as-applied challenges to § 2423(c). But that case was

wrongly decided, and I am unconvinced by the majority’s attempt to defend it. First, Lopez is a misfit for the

Foreign Commerce Clause when Congress purports

to regulate extraterritorially. And second, assuming

Lopez applies, § 2423(c) does not satisfy Lopez’s

channels-of-commerce prong. While § 2423(c) may

satisfy Lopez’s substantial-relation prong, I would not

use that prong to implement the Foreign Commerce

Clause.

2

See 18 U.S.C. § 2250.

41a

A. Lopez Does Not Constitute the Floor to the

Foreign-Commerce Power in Cases Involving

Extraterritorial Regulation.

I agree that Congress possesses greater power to

regulate domestically under the Foreign Commerce

Clause than it does under the Interstate Commerce

Clause. But it does not follow that the Foreign Commerce Clause confers greater authority on Congress

to regulate extraterritorially than the Interstate Commerce Clause confers on Congress to regulate domestically. Both Pendleton and the majority fail to grapple

with the latter proposition, which is critical because

§ 2423(c) purports to regulate only extraterritorially.

The Foreign Commerce Clause’s history, text, and

purpose demonstrate that the Foreign Commerce

Clause as applied extraterritorially is narrower than

the Interstate Commerce Clause as applied domestically.

1

The historical record is replete with information

regarding the original understanding of the Foreign

Commerce Clause’s domestic application. But few

sources shed light on the Clause’s extraterritorial

reach. Three sources prove most illuminating.

The first is Alexander Hamilton’s essay on the Jay

Treaty, 3 in which he expressly compared the Foreign

Commerce Clause’s extraterritorial reach to the

President’s “power of treaty.” Alexander Hamilton,

The Jay Treaty established free trade and resolved land

disputes between the United States and Great Britain

approximately a decade after the American War of Independence.

See Dan Lewerenz, Historical Context and the Survival of the Jay

Treaty Free Passage Right: A Response to Marcia Yablon-Zug, 27

Ariz. J. Int’l & Comp. L. 193, 200–01 (2010).

3

42a

Camillus No. XXXVI (1796), in VI The Works of

Alexander Hamilton, at 164–71 (Henry Cabot Lodge

ed., 1904). There, he explained that Congress’s foreigncommerce power inside the several states is broad. Id.

at 168–69 (“Congress . . . may regulate, by law, our own

trade and that which foreigners come to carry on with

us[.]”). But the same is not true with respect to

Congress’s foreign-commerce power inside sovereign

nations: “[Congress] cannot regulate the trade which

we may go to carry on in foreign countries.” Id. at 169

(emphasis in original). Stated more sharply, under the

Foreign Commerce Clause, “[Congress] can have no

obligatory action whatsoever . . . upon any person or

thing within the jurisdiction of a foreign nation”—for

example, an American citizen inside a sovereign

nation. Id. at 167 (emphasis added). That is because

Congress’s legislative power inside those sovereign

nations must depend on the “will or regulations of

those countries.” Id. at 169. The exception to the

federal government’s lack of power abroad, he

continued, is the President’s “power of treaty,” where

the United States and a sovereign nation may “mutual[ly] regulat[e]” trade between one another, which

is “binding upon . . . [each country’s] respective citizens.” Id. at 168, 170.

Hamilton’s understanding of the Foreign Commerce

Clause foreshadowed the Supreme Court’s landmark

opinion in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6

L.Ed. 23 (1824). In Gibbons, Chief Justice Marshall,

echoing Hamilton, explained that, with respect to

domestic regulation, the Foreign Commerce Clause is

broader than the Interstate Commerce Clause. While

Congress may not regulate “the exclusively internal

commerce of a State” under its interstate-commerce

power, Congress may regulate foreign commerce inside

the several states “whenever the subject exists.” Id. at

43a

195. Tellingly, however, Chief Justice Marshall did

not say that Congress’s foreign-commerce power

extends into sovereign nations. That is consistent with

his understanding that Congress lacks such power.

See, e.g., The Schooner Exch. v. McFaddon, 11 U.S.

(7 Cranch) 116, 136, 3 L.Ed. 287 (1812) (Marshall, C.J.)

(“[A sovereign nation has] full and complete power . . .

within its own territories,” which may not be yielded

absent “the consent of the nation itself.”); The Antelope,

23 U.S. (10 Wheat.) 66, 122, 6 L.Ed. 268 (1825)

(Marshall, C.J.) (“No principle of general law is more

universally acknowledged, than the perfect equality of

nations. . . . Each [sovereign nation must] legislate[ ]

for itself, but its legislation can operate on itself

alone.”).

Edmund Randolph—who “drafted the initial version

of the commerce clause”—likewise understood the

foreign-commerce power to apply only domestically.

Christopher R. Green, Tribes, Nations, States: Our

Three Commerce Powers, 127 Penn St. L. Rev. 643, 655

(2023). During the debates on the constitutionality of

the First Bank of the United States, and while serving

as the first Attorney General of the United States,

Randolph explained that the “heads of the power to

regulate commerce with foreign nations” includes four

powers:

1. [The power] to prohibit them [foreign

nations] or their commodities from our

ports[;]

2. [The power] to impose duties on them

where none existed before, or to increase

existing Duties on them[;]

3. [The power] to subject them to any species

of Custom house regulations[;] [and]

44a

4. [The power] to grant them any exemptions

or privileges which policy may suggest.

Edmund Randolph, Opinion on the Constitutionality of

the Bank (1791), in 21 The Documentary History of

the First Federal Congress of the United States of

America 1789–1791, at 772 (Charlene Bangs Bickford

ed., 2017). Nowhere did Randolph mention that the

Foreign Commerce Clause may apply extraterritorially.

I find no evidence that the Founders understood

Congress’s foreign-commerce power inside sovereign

nations to be greater than Congress’s interstatecommerce power inside the several states, or to exist

at all. They plainly understood the Foreign Commerce

Clause to be greater than the Interstate Commerce

Clause only with respect to Congress’s power inside,

and vis a vis, 4 the several states. They did not state or

imply that Congress has the power to “project[ ] U.S.

law into the sovereign territories of other nations

under the Foreign Commerce Clause.” Anthony J.

Colangelo, The Foreign Commerce Clause, 96 Va. L.

Rev. 949, 977 (2010).

The majority cites founding-era sources mentioning

the Foreign Commerce Clause, but none asserts

Congress’s foreign-commerce power inside sovereign

nations. In particular, the majority cites records from

the Constitutional Convention and certain state

conventions, where some Founders occasionally men“When it is said that Congress shall have power to regulate

commerce with foreign nations, this has reference to the

distribution of the general legislative power of regulating our

external trade, as far as it can be done by law, which is vested in

Congress, from that of regulating the trade of a State within itself,

which is left to each State.” Hamilton, supra, at 169–70.

4

45a

tioned the Foreign Commerce Clause. And it repeats

an oft-quoted line in Japan Line, Ltd. v. County of Los

Angeles, 441 U.S. 434, 448, 99 S.Ct. 1813, 60 L.Ed.2d

336 (1979), that “the Founders intended the scope of

the foreign commerce power to be the greater” as

compared to the interstate-commerce power. Maj. Op.

at 173–75. But each source 5 speaks only to either (1)

Congress’s power over the states to exclusively regulate foreign commerce—what is now referred to as

the “dormant Foreign Commerce Clause,” 6 see ColanMany sources have nothing whatsoever to do with Congress’s

foreign-commerce power. See, e.g., 2 The Debates in the Several

State Conventions on the Adoption of the Federal Constitution as

Recommended by the General Convention at Philadelphia in

1787, at 124 (Johnathan Elliot ed., 1836) [hereinafter The Debates

in the Several State Conventions] (Samuel Adams’s comment that

the entire Commerce Clause is “highly valuable”); id. at 106–07

(Nathaniel Gorham’s comment that, via treaties, the United

States should improve the economic wellbeing of farmers and

landholders); Pamphlets on the Constitution of the United States,

Published During its Discussion by the People, 1787–1788, at 107

(Paul Leicester Ford ed., 1888) (Melancthon Smith’s comment

that the United States’s economic output should expand globally);

id. at 379 (David Ramsay’s comment that, via treaties, the United

States’s economic output should expand globally).

5

See, e.g., 1 Records of the Federal Convention of 1787, at 133

(Max Farrand ed., 1911) (Roger Sherman’s comment that the

foreign-commerce power is an “object[ ] of the Union”); id. at 413

(James Wilson’s comment that the foreign-commerce power

“ought to reside in [the federal] government”); The Federalist No.

42 (James Madison) (explaining that the interstate-commerce

power is “supplemental” to the foreign-commerce power because

the former ensured that the several states would not tax each

other’s goods, which would cause the states “to resort to less

convenient channels,” e.g., sovereign nations, “for their foreign

trade,” and it is the province of the federal government “to

regulate the intercourse with foreign nations”); Japan Line, 441

U.S. at 448, 450, 99 S.Ct. 1813 (striking down California law

that applied ad valorem property tax on cargo contained aboard

6

46a

gelo, supra, at 960, or (2) Congress’s greater power

under the Foreign Commerce Clause than under the

Interstate Commerce Clause to regulate commerce

inside the several states. 7 They offer no support for the

constitutionality of extraterritorial legislation. See

Baston, 580 U.S. at 1185, 137 S.Ct. 850 (Thomas, J.,

dissenting from the denial of certiorari) (“The courts of

appeals have relied upon statements by this Court [in

Japan Line and other cases] comparing the foreign

commerce power to the interstate commerce power,

but have removed those statements from their

context.”).

2

The text of the Commerce Clause further supports

the conclusion that Congress’s foreign-commerce power inside sovereign nations is narrower than its inJapanese ships temporarily docked in California ports because

“[f]oreign commerce is preeminently a matter of national concern”). See also Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 445–

46, 25 U.S. 419, 6 L.Ed. 678 (1827) (recognizing that the foreigncommerce power is in “the control” of “a single [federal]

government”).

See, e.g., 2 The Debates in the Several State Conventions, supra

note 5, at 350 (Alexander Hamilton’s comment that the foreigncommerce power relates to “the whole system of foreign intercourse,” without mention of its extraterritorial application); 3 id.

at 213 (James Monroe’s comment on how “commerce” involves

trade relationships); 4 id. at 18 (William Richardson Davie’s

comment on how the foreign-commerce power should be used

to compel trade relationships); The Federalist No. 42 (James

Madison) (as his only example of the foreign-commerce power,

stating that the power could be used “to prohibit . . . the

importation of slaves [to the United States]”); Japan Line, 441

U.S. at 448 n.12, 99 S.Ct. 1813 (citing The Federalist No. 42 and

The Records of the Federal Convention, which, as explained,

support only the Foreign Commerce Clause’s domestic application).

7

47a

terstate-commerce power inside the several states.

While the Foreign and Interstate Commerce Clauses

both speak of Congress’s power to “regulate Commerce,” they feature important prepositional differences: the Foreign Commerce Clause speaks of commerce “with foreign Nations,” while the Interstate

Commerce Clause speaks more broadly of commerce

“among the several States.” U.S. Const. art. I, § 8, cl. 3

(emphases added).

In interpreting this textual difference, Gibbons

again provides helpful instruction. Chief Justice Marshall explained that the word “among” means “intermingled with.” Gibbons, 22 U.S. (9 Wheat.) at 194. It

connotes that Congress’s interstate-commerce power

extends inside “the external boundary line of each

State.” Id. Chief Justice Marshall did not define the

word “with.” But he explained that it means Congress’s

foreign-commerce power also extends inside “the

jurisdictional lines of the several states.” Id. at 195.

Otherwise, he wrote, the foreign-commerce power

“would be a very useless power, if it could not pass

those lines.” Id. But telling yet again, Chief Justice

Marshall did not state whether Congress’s foreigncommerce power extends inside “the jurisdictional

lines” of sovereign nations. Id. That is because he did

not understand Congress to have that power. Id.

(explaining, as examples of Congress’s foreign-commerce power inside jurisdictional lines, that it extends

“[to] a foreign voyage [that] may commence or

terminate at a port within a State” or “[to] [t]he deep

streams which penetrate our country in every direction”).

Historical context near the time that the Framers

drafted the Foreign Commerce Clause similarly illuminates the text’s meaning. The phrase “[c]ommerce

48a

with foreign [n]ations” almost identically mirrors the

phrase used in Georg Frederich von Martens’s 1788

treatise summarizing “the law of nations” from 1748–

1788. Georg Frederich von Martens, Summary of the

Law of Nations, Founded on the Treaties and Customs

of the Modern Nations of Europe 145 (William Cobbett

trans., 1795) (explaining the meaning of “commerce

carried on with foreign nations”). At that time,

“[c]ommerce with foreign [n]ations” referred only to a

sovereign nation’s power inside its territories to

regulate commerce with foreign nations; it did not

refer to a legislature’s power to regulate inside

sovereign nations. Id. at 145, 148–49 (explaining that

the phrase “commerce carried on with foreign nations”

means, in part, that “[a] nation is . . . fully authorized

. . . [t]o proscribe the manner in which the commerce

with its dominions shall be carried on,” “[t]o prohibit

the entry or exportation of certain merchandises,” or

“[t]o exercise freely its sovereign power over the

foreigners living in its territories”) (emphases added).

The Founders were heavily influenced by “the law of

nations” and the Supreme Court has used its principles—including Martens’s exposition of it—to interpret the scope of the Foreign Commerce Clause. See,

e.g., John Scrudato IV, A Constitution Fit for a Nation:

The Influence of the Law of Nations on the Virginia

Plan and James Madison’s Constitutional Thought, 31

Yale J.L. & Human. 169, 204 (2020) (“Based on the

evidence considered above, there is no question that

the role of treaties and the tenets of the Law of

Nations were key to the bargains struck at the

[Constitutional] Convention.”); David M. Golove &

Daniel J. Hulsebosch, The Law of Nations and the

Constitution: An Early Modern Perspective, 106 Geo.

L.J. 1593, 1607 (2018) (“The commitment of the

Founders, especially the Federalists, to the law of

49a

nations is difficult to miss in the historical sources.”);

Smith v. Turner, 48 U.S. (7 How.) 283, 416, 12 L.Ed. 702

(1849) (using Martens’s understanding of “the law of

nations” to inform Congress’s foreign-commerce power,

and summarizing only domestic applications of that

power).

Based on Gibbons and the common understanding

of “the law of nations” at the time of the Founding, the

Foreign Commerce Clause’s text does not countenance

Congress regulating inside sovereign nations. Nor

does the text of the Foreign Commerce Clause confer

greater authority on Congress to regulate inside

sovereign nations than the Interstate Commerce

Clause confers on Congress to regulate inside the

several states.

The majority’s textual analysis of the Foreign

Commerce Clause misses the mark. To conclude that

Congress’s foreign-commerce power inside sovereign

nations is broader than its interstate-commerce power

inside the several states, the majority turns to

founding-era definitions of the word “with.” Maj. Op. at

175–76. Specifically, it quotes Samuel Johnson’s definition—“noting the means,” “in mutual dealing,” and

“noting connection”—and concludes that Congress

may regulate inside sovereign nations if the commerce

in question has some “connection” (or link) between

the foreign nation and the United States. Id. (quoting

2 Samuel Johnson, Dictionary of the English Language

(1755) (internal quotation marks omitted)). As a

description of Congress’s ability to regulate inside the

United States under the Foreign Commerce Clause,

that is correct. Gibbons, 22 U.S. (9 Wheat.) at 195.

But respecting Congress’s ability to regulate

commerce inside foreign nations, the majority’s argument is precisely backwards. The Foreign Commerce

50a

Clause’s preposition, “with foreign Nations,” in contrast to the Interstate Commerce Clause’s more comprehensive formulation, “among the several States,”

means that Congress’s power to regulate foreign commerce extraterritorially is lesser—not greater—than

its power to regulate interstate commerce. That is

because Congress does not have plenary power to

regulate any foreign commerce, or instrumentalities

and channels of foreign commerce, or foreign commerce that arguably affects the United States. The

commerce in question must be “with” foreign nations

and “with” the United States. Absent that connection,

commercial activity occurring within foreign nations,

or among foreign nations but not “with” the United

States, falls outside the scope of Congress’s enumerated power. See Gibbons, 22 U.S. (9 Wheat.) at 195

(“enumeration presupposes something not enumerated”); Colangelo, supra, at 985–88; Anthony J. Colangelo, Constitutional Limits on Extraterritorial Jurisdiction: Terrorism and the Intersection of National and

International Law, 48 Harv. Int’l L.J. 121, 146–51

(2007).

In addition, the majority wrongly compares the

Foreign Commerce Clause to the Indian Commerce

Clause, Maj. Op. at 175–76, which similarly allows

Congress to regulate commerce “with the Indian

Tribes,” U.S. Const. art. I, § 8, cl. 3. The argument goes

that, because the Supreme Court construes the Indian

Commerce Clause more broadly than the Interstate

Commerce Clause—“provid[ing] Congress with plenary power to legislate in the field of Indian affairs,”

Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163,

192, 109 S.Ct. 1698, 104 L.Ed.2d 209 (1989)—Congress

must also possess broad authority under the Foreign

Commerce Clause. See, e.g., Bollinger, 798 F.3d at 211–

12 (making this argument); Lindsay, 931 F.3d at 861

51a

(same). But I agree with Judge Hartz that the Indian

Commerce Clause says little about Congress’s power

inside sovereign nations. Durham, 902 F.3d at 1243

(Hartz, J., dissenting). Unlike with sovereign nations,

the Supreme Court understands “Indian Tribes” to

constitute “dependent sovereign[s].” United States v.

Lara, 541 U.S. 193, 203, 124 S.Ct. 1628, 158 L.Ed.2d

420 (2004) (emphasis added). In addition, to support

Congress’s plenary power over Indian tribes, the

Supreme Court has pointed to an amalgamation of

constitutional powers—not the Indian Commerce

Clause in isolation. Id. at 200–01, 124 S.Ct. 1628

(referencing “the Indian Commerce Clause,” “the

Treaty Clause,” “the Property Clause,” and “preconstitutional powers necessarily inherent in any Federal

Government, namely powers that this Court has

described as necessary concomitants of nationality”

(internal quotation marks and quoted source omitted)); Haaland, 599 U.S. at 275, 143 S.Ct. 1609

(“Admittedly, our precedent [on Congress’s power over

Indian tribes] is unwieldy, because it rarely ties a

challenged statute to a specific source of constitutional

authority.”); see also Naomi Harlin Goodno, When the

Commerce Clause Goes International: A Proposed

Legal Framework for the Foreign Commerce Clause, 65

Fla. L. Rev. 1139, 1191–92 (2013) (“[I]n discussing the

scope of the Indian Commerce Clause, the [Supreme]

Court has not relied on or analyzed the Foreign

Commerce Clause. Thus, the Indian Commerce Clause

legal framework should not be, and has not been,

superimposed onto the Foreign Commerce Clause.”).

3

Finally, general principles of sovereignty also

demonstrate that Congress’s foreign-commerce power

inside sovereign nations is narrow or non-existent. The

52a

Founders had fundamental concerns with a legislature

imposing its laws inside sovereign nations. See, e.g.,

The Schooner Exch., 11 U.S. (7 Cranch) at 136–37

(Marshall, C.J.) (“The jurisdiction of the nation within

its own territory is necessarily exclusive and absolute.

It is susceptible of no limitation not imposed by itself.

Any restriction upon it, deriving validity from an

external source, would imply a diminution of its

sovereignty[.] . . . [Consequently] [t]his full and absolute territorial jurisdiction being alike the attribute of

every sovereign, . . . [is] incapable of conferring extraterritorial power[.]”); The Antelope, 23 U.S. (10 Wheat.)

at 122 (Marshall, C.J.) (“[N]o [nation] can rightfully

impose a rule on another.”). And that principle applies

to the Foreign Commerce Clause’s application inside

sovereign nations.

The majority argues that the Foreign Commerce

Clause is broader than the Interstate Commerce

Clause because the former is not constrained by

federalism concerns. Maj. Op. 176–77; see Lopez, 514

U.S. at 557, 115 S.Ct. 1624 (“[T]he scope of the

interstate commerce power must be considered in the

light of our dual system of government[.]” (internal

quotation marks and quoted sourced omitted)). True,

federalism concerns are absent in the Foreign

Commerce Clause. Durham, 902 F.3d at 1205. And it

is implausible that principles of federalism and

sovereignty are on equal footing in our Constitution;

federalism is “an integral part of our constitutional

structure” in ways that sovereignty is not. Id. But

given the Founders’ sovereignty concerns (both in the

Foreign Commerce Clause and otherwise), the absence

of federalism concerns in the Foreign Commerce

Clause does not somehow imply that the Foreign

Commerce Clause is broader than the Interstate

Commerce Clause in all of its applications. See United

53a

States v. Al-Maliki, 787 F.3d 784, 793 (6th Cir. 2015)

(“[A]n 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.”).

***

Because Congress’s foreign-commerce power inside

sovereign nations is narrower than its interstatecommerce power inside the several states, Lopez is illsuited for implementing the Foreign Commerce Clause

in this case. We should instead look to the Foreign

Commerce Clause’s text and original meaning to

interpret its scope. Rife, 33 F.4th at 843–44. Based on

those sources, it appears that Congress lacks any

power to regulate inside sovereign nations under the

Foreign Commerce Clause. See supra, at 188–93.

Accordingly, § 2423(c)—which purports to regulate a

U.S. citizen’s or permanent resident’s non-commercial

conduct inside sovereign nations—does not survive

scrutiny. I would thus join the Sixth Circuit and other

judges who have determined that § 2423(c) is unconstitutional under the Foreign Commerce Clause.

See, e.g., Rife, 33 F.4th at 845; Durham, 902 F.3d at

1241 (Hartz, J., dissenting); Clark, 435 F.3d at 1117

(Ferguson, J., dissenting); Bianchi, 386 F. App’x at 163

(Roth, J., concurring in part and dissenting in part).

B. Pendleton and the Majority Misapply Lopez.

I take issue with Pendleton and the majority for an

additional reason. Assuming that Lopez does apply to

the Foreign Commerce Clause for Congress’s power to

regulate extraterritorially, we erred in Pendleton in

holding that § 2423(c) satisfies the channels-ofcommerce prong. While § 2423(c) is a more comfortable

54a

fit under Lopez‘s substantial-relation prong, as the

majority recognizes, I would not analyze the Foreign

Commerce Clause under that prong.

1

It is well-settled that, under the first prong, Congress may regulate the use of “the channels of

interstate commerce” to prevent “immoral and injurious uses.” Heart of Atlanta Motel, Inc. v. United States,

379 U.S. 241, 256, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964)

(internal quotation marks and quoted source omitted).

And Congress may regulate non-commercial activity.

Id. (stating that it does not “make any difference

whether the transportation is commercial in character”). However, under this authority, the Supreme

Court has affirmed such regulations only in cases

where “the person or thing barred from interstate

commerce was tainted by either prior immoral conduct

or the intent to engage in such conduct upon completion of the journey.” Durham, 902 F.3d at 1255 (Hartz,

J., dissenting) (collecting cases). For example, the

Supreme Court upheld regulations where an individual trafficked illegal lottery tickets through the

channels of interstate commerce, Champion v. Ames,

188 U.S. 321, 23 S.Ct. 321, 47 L.Ed. 492 (1903), and

where an individual transported women through

interstate commerce for purposes of future

prostitution, Hoke v. United States, 227 U.S. 308, 33

S.Ct. 281, 57 L.Ed. 523 (1913).

Section 2423(c) does not fit into that framework. It

requires a defendant neither to have engaged in prior

immoral conduct nor to have had an intent to engage

in future criminal conduct at the time he travels. See

Bollinger, 798 F.3d at 218. In essence, “[it] is not really

a regulation of channels of commerce at all, but is

rather an attempt to ‘hook’ subsequent conduct by

55a

defendants to Congress’s foreign commerce authority

by tying the conduct to some previous foreign travel.”

Colangelo, Foreign Commerce Clause, supra, at 996–

97. Stated differently, § 2423(c)’s purported constitutionality is based only in its “jurisdictional hook”—its

requirement that an individual traveled at some point

in foreign commerce. That does not survive scrutiny

under Supreme Court precedent. See Durham, 902

F.3d at 1255 (Hartz, J., dissenting); see also United

States v. Rodia, 194 F.3d 465, 472 (3d Cir. 1999) (“The

mere presence of a jurisdictional element . . . does not

in and of itself insulate a statute from judicial scrutiny

under the Commerce Clause, or render it per se

constitutional.” (quoting United States v. Bishop, 66

F.3d 569, 585 (3d Cir. 1995))).

To be sure, Pendleton finds support in SORNA,

which we have declared constitutional under Lopez’s

first prong because of its “jurisdictional hook.” Shenandoah, 595 F.3d at 160–61, abrogated on other grounds

by Reynolds, 565 U.S. 432, 132 S.Ct. 975. But I agree

with Judge Hartz that SORNA is distinguishable and

fits more comfortably under Supreme Court precedent.

Under SORNA, the defendant did commit a prior

unlawful act (a child sex offense) before traveling in

interstate commerce. Durham, 902 F.3d at 1256

(Hartz, J., dissenting). So the “person . . . barred from

interstate commerce was tainted by . . . prior immoral

conduct.” Id. at 1255 (Hartz, J., dissenting). “And the

SORNA registration requirement is an incidental

condition for permitting such persons to travel in those

channels.” Id. at 1256 (Hartz, J., dissenting).

Pendleton’s errors regarding the channels-of-commerce prong are made obvious by their consequences.

Pendleton “mean[s] that any time a U.S. citizen or

permanent resident travels in foreign commerce, every

56a

subsequent act by that individual”—commercial or

non-commercial—“is within Congress’s regulatory

authority.” Colangelo, Foreign Commerce Clause,

supra, at 1000. Congress could, for example, regulate

a U.S. citizen’s jaywalking in Toronto, gambling in

London, or consumption of foie gras in Paris. Clark,

435 F.3d at 1120 (Ferguson, J., dissenting); Durham,

902 F.3d at 1263 (Hartz, J., dissenting). The government conceded this point at argument. See Oral Arg.

Tr. at 29:8–11 (conceding foie gras example). But

Congress does not possess “such a general international police power.” Bianchi, 386 F. App’x at 164

(Roth, J., concurring in part and dissenting in part). “If

Congress . . . can regulate virtually anything,” then it

“is no longer [a branch] of limited and enumerated

powers.” Gonzales v. Raich, 545 U.S. 1, 57–58, 125 S.Ct.

2195, 162 L.Ed.2d 1 (2005) (Thomas, J., dissenting).

The majority’s response to this point is unavailing.

It finds “compelling” other judges’ and scholars’

concerns that Pendleton “permit[s] Congress to subject

an American to federal prosecution for any offense

committed abroad,” but it contends that those

concerns “do not apply here” because Clay’s crime (a

child sexual offense) does not involve “just any offense

committed abroad.” Maj. Op. at 178–79 (internal quotation marks and quoted source omitted). That misses

the point. Clay’s acts were certainly immoral, but

Pendleton’s reasoning does not stop at sexual offenses

under § 2423(c). Pendleton answers whether, under

Lopez’s first prong, Congress may regulate any noncommercial, extraterritorial conduct of whatever nature, solely by virtue of an individual’s travel in foreign

commerce. 658 F.3d at 310–11. And it answers that

question broadly: Congress has carte blanche. Id.

57a

2

Section 2423(c) fits more comfortably under Lopez‘s

substantial-relation prong. Under the Supreme Court’s

interpretation of that prong, Congress may regulate

non-commercial and intrastate activity, so long as it

“substantially affect[s] interstate commerce.” Lopez,

514 U.S. at 559, 115 S.Ct. 1624. The regulation must be

an “essential part of a larger regulation of economic

activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.”

Id. at 561, 115 S.Ct. 1624; see Raich, 545 U.S. at 36,

125 S.Ct. 2195 (Scalia, J., concurring). The majority

properly concludes that § 2423(c), though regulating

non-commercial sexual conduct, is “an essential part of

a broader scheme to directly regulate” the commercial

sex tourism market and thus satisfies Lopez’s third

prong. Maj. Op. at 181–82 (emphases omitted).

My issue is not with the majority’s application of the

prong but instead with the prong itself. I agree with

the Sixth Circuit that the Supreme Court “depart[ed]

from the original meaning of ‘commerce’” in Lopez‘s

third prong. Rife, 33 F.4th at 843. Originally, “commerce” meant “trade and transportation thereof, as

opposed to [non-commercial and intrastate] activities

preceding those things.” Id. at 842; see Lopez, 514

U.S. at 585–89, 115 S.Ct. 1624 (Thomas, J., concurring)

(explaining the historical meaning of “commerce,”

which is largely uncontested); see also Robert G.

Natelson, The Legal Meaning of “Commerce” in the

Commerce Clause, 80 St. John’s L. Rev. 789, 805 (2006)

(“commerce” meant exchange, traffic, or commercial

intercourse); Randy F. Barnett, The Original Meaning

of the Commerce Clause, 68 U. Chi. L. Rev. 101, 116

(2001) (“commerce” referred to trade or exchange, not

all gainful activity). Even assuming the Foreign

58a

Commerce Clause as applied extraterritorially is

broader than the Interstate Commerce Clause, I see

“[no] compulsion to add [Lopez‘s third prong] to the

Foreign Commerce Clause” here. Rife, 33 F.4th at 844

(declining to extend Lopez‘s third prong to the Foreign

Commerce Clause). And Supreme Court precedent

does not compel us to do so. See Rodriguez de Quijas v.

Shearson/Am. Exp., Inc., 490 U.S. 477, 484, 109 S.Ct.

1917, 104 L.Ed.2d 526 (1989) (stating lower courts

must follow Supreme Court precedent if it “directly

controls” the issue before them); Baston, 580 U.S. at

1184, 137 S.Ct. 850 (Thomas, J., dissenting from the

denial of certiorari) (“The U.S. Supreme Court has not

yet articulated the extent of Congress’s power under

the Foreign Commerce Clause to enact laws with

extraterritorial reach.” (internal quotation marks and

quoted source omitted)). Without such direction from

the Supreme Court, I would refrain from extending

Lopez’s expansive and unhistorical treatment of the

Interstate Commerce Clause to the Foreign Commerce

Clause.

II. Holland and Congress’s “Treaty Power”

Because I conclude that Congress does not have the

power to enact § 2423(c) under the Foreign Commerce

Clause, Holland‘s misinterpretation of congressional

power is troubling here. Article II of the Constitution

grants the President the “Power, by and with the

Advice and Consent of the Senate, to make Treaties,

provided two thirds of the Senators present concur[.]”

U.S. Const. art. II, § 2, cl. 2. Article I grants Congress

the 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.” Id., art. I,

59a

§ 8, cl. 18. “Read together, the two Clauses empower

Congress to pass laws necessary and proper for

carrying into Execution . . . [the] Power . . . to make

Treaties.” 8 Bond, 572 U.S. at 874–75, 134 S.Ct. 2077

(Scalia, J., concurring) (internal quotation marks and

quoted source omitted).

In Holland, the Supreme Court interpreted the

scope of Congress’s treaty power. With no analysis

whatsoever, it asserted: “If the treaty is valid there can

be no dispute about the validity of the statute under

Article [I], Section 8, as a necessary and proper means

to execute the powers of the Government.” Holland,

252 U.S. at 432, 40 S.Ct. 382. In other words, the Court

declared that Congress not only has the power to help

make treaties, but it can also enact laws purporting to

implement a valid treaty after it has been made.

Holland therefore allows Congress to increase its

legislative power by treaty when no enumerated power

would otherwise authorize its legislation. Nicholas

Quinn Rosenkranz, Executing the Treaty Power, 118

Harv. L. Rev. 1867, 1868 (2005).

Holland is in “deep tension” with the Constitution.

Id. The “predominant view” regarding the Executive’s

power to make treaties is that “there are [no] subjectmatter limitations whatsoever on that power,” id. at

1878, other than matters that “the Constitution

forbids [e.g., rights enshrined in the Bill of Rights],”

Asakura v. City of Seattle, 265 U.S. 332, 341, 44 S.Ct.

515, 68 L.Ed. 1041 (1924) (internal quotation marks

and quoted source omitted). If that is true, the Executive could expand the power of the Legislature almost

I will refer to this power as Congress’s “treaty power.” See

United States v. Lara, 541 U.S. 193, 201, 124 S.Ct. 1628, 158

L.Ed.2d 420 (2004) (referring to it in that manner).

8

60a

“without limit.” Rosenkranz, supra, at 1893; Bond, 572

U.S. at 878, 134 S.Ct. 2077 (Scalia, J., concurring).

Under Holland, Congress need not adhere to the

Constitution’s “basic . . . scheme of enumerated legislative powers” but instead may legislate via treaty.

Rosenkranz, supra, at 1894; see also Bond, 572 U.S. at

874–76, 134 S.Ct. 2077 (Scalia, J., concurring) (explaining that the Holland Court misread the plain text

of the Congress’s treaty power, which allows Congress

to pass laws necessary and proper only to make a

treaty, not implement it).

That issue is front and center here. Other than the

Foreign Commerce Clause, the government does not

rely on any enumerated power to justify § 2423(c)’s

constitutionality, instead relying only on the treaty

power. 9 That argument prevails under Holland beIn a footnote, the majority suggests that “nationality-based

jurisdiction” may justify § 2423(c)’s constitutionality, though

neither party presented that argument in briefing. Maj. Op. at

172 n.3. “Nationality-based jurisdiction” is a doctrine rooted in

international law holding that a nation’s legislature may prosecute its citizens for crimes committed abroad, solely by virtue of

their citizenship. Geoffrey R. Watson, Offenders Abroad: The Case

for Nationality-Based Criminal Jurisdiction, 17 Yale J. Int’l L. 41,

42 (1992). That principle is troubling here for many reasons. No

enumerated power in our Constitution supports the doctrine. Id.

at 63. Nor did the Founders recognize it; they expected only that

“the United States [would] . . . exercise criminal jurisdiction over

crimes committed in U.S. territory[.]” Id. at 44–45 (citing sources

discussing the history). In addition, the few early-1900s Supreme

Court cases purportedly invoking the doctrine involved cases

where the individual’s crime directly implicated the United

States. See, e.g., Blackmer v. United States, 284 U.S. 421, 436–38,

52 S.Ct. 252, 76 L.Ed. 375 (1932) (involving U.S. citizen, residing

in Paris, who refused to comply with subpoena to return to the

United States to testify in the Supreme Court of the District of

Columbia); United States v. Bowman, 260 U.S. 94, 99–102, 43

S.Ct. 39, 67 L.Ed. 149 (1922) (applying extraterritorially a statute

9

61a

cause, as the majority properly concludes, § 2423(c)

has a “rational[ ] relat[ionship]” to a treaty—the socalled Optional Protocol. United States v. Comstock,

560 U.S. 126, 134, 130 S.Ct. 1949, 176 L.Ed.2d 878

(2010). However, our Constitution’s scheme of enumerated legislative powers cannot bear the weight of

Holland. The treaty power is simply a “power to ‘make

Treaties’ that are consistent with provisions of the

Constitution allocating federal governmental power

and that do not violate prohibitory provisions of the

Constitution framed broadly enough to apply to the

treaty-making authority.” Gary Lawson & Guy Seidman, The Jeffersonian Treaty Clause, 2006 U. Ill. L.

Rev. 1, 56 (2006). Treating the Article II treaty power

as a source of unbounded legislative power independent of the Constitution’s overall structure of

carefully enumerated powers is anomalous, at best. As

other judges have, I respectfully urge the Supreme

Court to clarify the scope of Holland and its place in

our constitutional design. See, e.g., Bond, 681 F.3d at

169 (Ambro, J., concurring); Rife, 33 F.4th at 845–48;

Park, 938 F.3d at 375 (Griffith, J., concurring).

***

Pendleton and Holland, though flawed, compel our

judgment here. So I respectfully concur.

that made it criminal offense to conspire to defraud a corporation

owned by the United States government). That is not the case

with § 2423(c).

62a

AMBRO, Circuit Judge, concurring

I agree with my colleagues that our decision in

United States v. Pendleton, 658 F.3d 299 (3d Cir. 2011),

and the Supreme Court’s decision in Missouri v.

Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641

(1920), preclude Clay’s facial and as-applied challenges to 18 U.S.C. §§ 2423(c) and (g)(1) (denominated

as (f)(1) before December 22, 2023). I also agree with

Judge Hardiman that the Supreme Court’s decision in

United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624,

131 L.Ed.2d 626 (1995), provides the analytical framework for evaluating Congress’s exercise of its power

under the Foreign Commerce Clause. And I agree with

his conclusion that §§ 2423(c) and (g)(1) are constitutional exercises of that power under the substantialeffects prong because criminalizing conduct like Clay’s,

though noncommercial, is an “essential part of a larger

regulation of economic activity”—international sex

tourism—and because that “regulatory scheme could

be undercut unless the [foreign] activity were regulated.”

Lopez, 514 U.S. at 561, 115 S.Ct. 1624.

I disagree with Judge Hardiman, however, in one

respect. I believe, as Judge Porter explains well, that

§§ 2423(c) and (g)(1) fail to satisfy Lopez‘s channels-ofcommerce prong. Under Pendleton’s logic, Congress’s

authority to regulate the conduct of American residents abroad is seemingly boundless. I also join Judge

Porter in continuing to “urge the Supreme Court to

clarify the scope of Holland and its place in our constitutional design.” Porter Concurrence Op. at 198

(citing United States v. Bond, 681 F.3d 149, 169 (3d Cir.

2012) (Ambro, J., concurring)).

Despite these reservations, I recognize that

Pendleton and Holland bind us, and so I respectfully

concur.

63a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

————

2:22-cr-00055-CCW

————

UNITED STATES OF AMERICA,

Plaintiff,

v.

CORRIGAN CLAY,

Defendant.

————

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant Corrigan Clay’s

Motion to Dismiss the Indictment against him. ECF

No. 75. For the following reasons, the Court will DENY

Mr. Clay’s Motion.

Mr. Clay is charged with a single count of violating

18 U.S.C. § 2423(c), which makes it unlawful for a

United States citizen or permanent resident “who

travels in foreign commerce or resides, either

temporarily or permanently, in a foreign country” to

“engage[] in any illicit sexual conduct with another

person.”1 The statute defines “illicit sexual conduct” to

include both commercial and noncommercial sex acts

with persons under the age of 18. See id. § 2423(f)(1)–

(2) (citing 18 U.S.C. §§ 1591, 2242). According to his

Indictment, Mr. Clay, a United States citizen, traveled

in foreign commerce from the United States to Haiti,

resided there between approximately January 2014

and December 2017, and, at some point during that

1

The same Count of the Indictment charges Mr. Clay with

attempt, in violation of 18 U.S.C. § 2423(e).

64a

period, engaged in illicit sexual conduct with a minor.

ECF No. 3 at 1. Mr. Clay’s charge falls under the

noncommercial prong of section 2423(c), specifically

subsection (f)(1). See id. As Mr. Clay points out, the

Indictment does not include allegations that Mr. Clay

engaged in commercial sexual activity, that he

traveled with the intent to engage in sexual activity, or

that his conduct affected foreign commerce. See id.;

ECF No. 76 at 1–2.

On January 17, 2023, Mr. Clay filed the instant

Motion to Dismiss the Indictment under Federal Rule

of Criminal Procedure 12(b)(3), arguing that section

2423(c) is unconstitutional. Specifically, Mr. Clay

argues that section 2423(c) is both facially unconstitutional and unconstitutional as applied to him because

it exceeds Congress’s lawmaking authority under both

the Foreign Commerce Clause and the Necessary and

Proper Clause. To succeed on his facial challenge, Mr.

Clay must show that “no set of circumstances exists

under which [section 2423(c)] would be valid.” United

States v. Salerno, 481 U.S. 739, 745 (1987). By contrast,

to succeed on his as-applied challenge, Mr. Clay must

only show that the statute’s application under the

circumstances would deprive him of a constitutional

right. United States v. Marcavage, 609 F.3d 264, 273

(3d Cir. 2010). In ruling on Mr. Clay’s Rule 12(b)(3)

Motion, the Court “accepts as true the factual

allegations set forth in the indictment.” United States

v. Besmajian, 910 F.2d 1153, 1154 (3d Cir. 1990); see

United States v. Bergrin, 650 F.3d 257, 265 (3d Cir.

2011). The parties have fully briefed the Motion, which

is ripe for adjudication. See ECF Nos. 76, 78, 80.

The parties’ arguments can be summarized as

follows. Noting that Congress generally may only pass

laws grounded in its enumerated powers, Mr. Clay

65a

argues section 2423(c) is unconstitutional because

Congress does not have the authority to “regulate the

entirely non-commercial, foreign-located conduct alleged

against [him].” ECF No. 76 at 3. Mr. Clay contends that

the Foreign Commerce Clause does not support section

2423(c) because that clause grants Congress only the

authority to regulate commercial activity, and he did

not pay for sex, travel in foreign commerce with the

intent to engage in sexual conduct, or engage in

activity that has a substantial effect on foreign commerce.

He argues that, for similar reasons, the statute is not

a valid exercise of Congress’s Necessary and Proper

Clause authority to give effect to treaties such as the

Optional Protocol to the Convention on the Rights of

the Child on the Sale of Children, Child Prostitution,

and Child Pornography (the “Optional Protocol”).

The government responds that section 2423(c) is a

valid exercise of Congress’s authority under the Foreign

Commerce Clause or the Necessary and Proper Clause.

As to the Foreign Commerce Clause, it contends that

the Third Circuit rejected an identical facial challenge

in United States v. Pendleton, 658 F.3d 299 (3d Cir.

2011), and that the court’s decision compels the same

conclusion as to both of Mr. Clay’s facial and as-applied

challenges. The government argues further that

section 2423(c) is a valid exercise of Congress’s

authority to give effect to the Optional Protocol,

because the statute is rationally related to the treaty’s

goals of deterring sex tourism. Because the Court

agrees with the government that a faithful application

of Pendleton requires this Court to hold that section

2423(c) is a constitutional exercise of Congress’s

authority under the Foreign Commerce Clause, the

Court will not address whether it might also be a

constitutional exercise of Congress’s authority under

the Necessary and Proper Clause.

66a

In Pendleton, the Third Circuit addressed the

following issue: “whether 18 U.S.C. §2423(c) and (f)(1),

which together criminalize noncommercial illicit

sexual conduct outside the United States, is a valid

exercise of Congress’s power under . . . the Foreign

Commerce Clause.” Pendleton, 658 F.3d at 301. The

case involved a defendant charged with violating

section 2423(c) and (f)(1) by flying from New York City

to Germany and, about six months later, molesting a

fifteen-year-old boy. Id. The defendant moved to

dismiss his indictment and, after the district court

denied that motion, a jury convicted him. Id. at 302.

On appeal, the defendant brought a facial challenge to

section 2423(c) insofar as it is predicated on noncommercial sexual acts under section 2423(f)(1). Id.

The Third Circuit rejected the defendant’s facial

challenge. First, it assumed without deciding that the

same framework for assessing the extent of Congress’s

authority under the Interstate Commerce Clause

applied in cases involving the Foreign Commerce

Clause (the government had argued that Congress

enjoys broader authority under the latter). Id. at 307–

08. Thus, it applied the framework from United States

v. Lopez, 514 U.S. 549 (1995), where the Supreme Court

set forth three areas in which Congress may regulate

under the Interstate Commerce Clause: “(1) the use of

the channels of interstate commerce; (2) the instrumentalities of interstate commerce, or persons or

things in interstate commerce; and (3) activities that

substantially affect interstate commerce,” Pendleton,

658 F.3d at 306. Ultimately, the Third Circuit held that

section 2423(c) and (f)(1) is a valid exercise of Congress’s

authority under the first Lopez category because it

“has an ‘express connection’ to the channels of foreign

commerce.” Pendleton, 658 F.3d at 311. The court

explained that the requirement that the defendant

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have traveled in foreign commerce was sufficient to

uphold section 2423(c) as a constitutional application

of Congress’s Foreign Commerce Clause authority.

In so holding, the court rejected the defendant’s

argument that traveling in foreign commerce without

an associated intent to engage in prohibited conduct

was an insufficient connection to commerce to uphold

section 2423(c). The court reasoned that “[u]nlike

Congressional authority to regulate activities affecting

interstate commerce under the third category in

Lopez, Congress’s authority to regulate the channels of

commerce is not confined to regulations with an

economic purpose or impact,” such that “a statute need

not include an element of mens rea to trigger the first

prong of Lopez.” Pendleton, 658 F.3d at 308–09. Thus,

the court explained that although the statute’s

purpose is to deter child sex tourism (persons traveling

to foreign countries while intending to sexually abuse

minors), Congress could “cast a wide net” and

criminalize conduct even when the intent to engage in

illicit activity is not present at the time the defendant

used the channels of foreign commerce to travel. Id. at

310–11. For support, the Third Circuit analogized

to portions of the Sex Offender Registration and

Notification Act, 18 U.S.C. § 2250(a)(1)–(2) and 42

U.S.C. § 14072(i)(1), which it had previously upheld

despite the Act’s criminalization of a sex-offender’s

failure to properly register after traveling in interstate

commerce, even if the failure to register occurred

“years later” and there was no intent to improperly

register at the time of travel. Pendleton, 658 F.3d at

309–11 (citing United States v. Shenandoah, 595 F.3d

151, 161 (3d Cir. 2010), abrogated on other grounds by

Reynolds v. United States, 565 U.S. 432 (2012)).

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Here, there is no serious dispute that Pendleton is

dispositive of Mr. Clay’s facial challenge. Because the

Third Circuit has already held in a precedential

decision that section 2423(c) and (f)(1) is a facially

valid exercise of Congress’s authority under the

Foreign Commerce Clause, this Court must do the

same. See Jakomas v. City of Pittsburgh, 342 F. Supp.

3d 632, 647 (W.D. Pa. 2018) (Hornak, J.) (“This Court

is, of course, bound by the precedential decisions of the

Third Circuit.”). Mr. Clay nevertheless resists this

conclusion, arguing that Pendleton rested on “purely

commercial activities like ‘sex trafficking’ and ‘sex

tourism,’” such that “there remains no set of facts

involving non-commercial conduct that can save

[section 2423(c)].” ECF No. 76 at 11. His argument

cannot be reconciled with the Third Circuit’s framing

of the issues in Pendleton. The court was clear that its

holding addressed the facial validity of section 2423(c)

insofar as it was paired with subsection (f)(1) and

“criminalize[d] noncommercial illicit sexual conduct

outside the United States.” Pendleton, 658 F.3d at 301

(emphasis added). Thus, the court’s holding was not

based on hypothetical charges of “purely commercial

activities” and Mr. Clay is asking this Court to create

space between this case and Pendleton where none

exists. The balance of Mr. Clay’s facial challenge

focuses on why Pendleton was “wrongly decided” and

why section 2423(c) falls outside of each of the Lopez

categories, therefore exceeding Congress’s Foreign

Commerce Clause authority. ECF No. 4 n.3. Those

arguments, however, are beyond the purview of this

Court, which is bound by Third Circuit precedent. See

Jakomas, 342 F. Supp. 3d at 647.

The Third Circuit’s decision in Pendleton also

forecloses Mr. Clay’s as-applied challenge. Appreciating

the hurdle that Pendleton poses, Mr. Clay takes pains

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to explain why that case is not likewise fatal to his asapplied challenge. He focuses on the distinction

between as-applied and facial challenges, which can

succeed only if there is “no set of circumstances” under

which the statute could be constitutionally applied.

Salerno, 481 U.S. at 745. In essence, Mr. Clay argues

that his circumstances—traveling to a foreign country

without the intent to engage in illicit sexual conduct

and later engaging in noncommercial sexual activity

with a minor—fall outside of the constitutional

application of section 2423(c) to sex tourists that

rendered the law facially valid. This argument

resembles Mr. Clay’s argument for why Pendleton does

not foreclose his facial challenge because it is similarly

premised on reading Pendleton as a decision holding

that the hypothetical application of section 2423(c)

and (f)(1) to sex tourists and those who engage in

commercial sex abroad is what rendered the statute

facially constitutional.

The problem with Mr. Clay’s argument is that it

would require this Court to ignore the Third Circuit’s

reasoning in Pendleton. There, the court expressly

addressed the facial validity of section 2423(c) insofar

as it was paired with subsection (f)(1) and criminalized

noncommercial sex acts. Thus, even accepting that Mr.

Clay did not pay for sex, Pendleton supports the

application of section 2423(c) here. Pendleton likewise

forecloses Mr. Clay’s arguments regarding sex tourism

and his lack of intent at the time he traveled to Haiti.

As explained above, the Third Circuit acknowledged

that section 2423(c)’s purpose was to deter child sex

tourism—foreign travel with the intent to engage in

illicit sexual activity—but concluded that Congress

could do so by criminalizing travel in foreign commerce

even without an associated mens rea. Pendleton, 658

F.3d at 609. The court explained that this closed an

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“enforcement gap” that existed because of the

difficulty in proving intent in sex-tourism cases, and

was proper because regulating the channels of foreign

commerce need not have “an economic purpose or

impact.” Id. at 308, 311. Thus, although Mr. Clay is

correct that a holding that a statute is facially

constitutional does not per se foreclose a later holding

that the same statute is unconstitutional as applied in

a particular set of circumstances, a faithful application

of Pendleton compels the conclusion that the statute is

constitutional as applied to Mr. Clay.

In sum, the Court concludes that, under Pendleton,

section 2423(c) is a constitutional exercise of Congress’s

authority to regulate the channels of foreign commerce.

Accordingly, the Court will not address Mr. Clay’s

arguments that the statute exceeds Congress’s authority

to regulate “the instrumentalities of interstate

commerce,” “persons or things in interstate

commerce,” or “activities that substantially affect

interstate commerce.” Pendleton, 658 F.3d at 306.

Neither will the Court address the parties’ arguments

regarding the Necessary and Proper Clause.

For the foregoing reasons, Ms. Clay’s Motion is

DENIED.

DATED this 24th day of February, 2023.

BY THE COURT:

/s/ Christy Criswell Wiegand

CHRISTY CRISWELL WIEGAND

United States District Judge

cc (via ECF email notification):

All Counsel of Record

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APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

————

No. 23-2335

————

UNITED STATES,

v.

CORRIGAN CLAY,

Appellant.

————

(District Court No. 2:22-cr-00055-001)

————

SUR PETITION FOR REHEARING

————

Present: CHAGARES, Chief Judge, HARDIMAN,

SHWARTZ, KRAUSE, RESTREPO, BIBAS, PORTER,

MATEY, PHIPPS, FREEMAN, MONTGOMERYREEVES, and AMBRO,1 Circuit Judges.

The Appellant’s petition for rehearing in the aboveentitled case having been submitted to the judges

who participated in the decision of this Court and to

all the other available circuit judges of the circuit in

regular active service, and no judge who concurred

in the decision having asked for rehearing, and a

majority of the judges of the circuit in regular service

not having voted for rehearing, the petition for

1

The vote of Judge Ambro is limited to panel rehearing.

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rehearing by the panel and the Court en banc, is

denied.

BY THE COURT,

/s/ Thomas M. Hardiman

Circuit Judge

Dated: March 19, 2025

PDB/cc: All Counsel of Record