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United States v. Bollinger

United States District Court · Constitutional Law

Constitutional LawNecessary and Proper ClauseForeign Commerce ClauseDue ProcessExtraterritoriality18 U.S.C. § 2423(c)Optional ProtocolNecessary and Proper Clause

Facts

Defendant, a resident of Gastonia, North Carolina, was indicted on two counts alleging that between August 1, 2009 and November 18, 2009 he traveled to Haiti and engaged in illicit sexual conduct with a minor. The indictment did not allege that the sexual activity was commercial or that Defendant traveled with the intent to engage in illicit sexual conduct. Defendant argued that Congress lacked constitutional authority to criminalize this conduct under Article I and that applying § 2423(c) to conduct occurring in Haiti violated the Fifth Amendment. Defendant remained a United States citizen and retained legal residence in North Carolina during the relevant period.

Issue

Whether 18 U.S.C. § 2423(c), as applied to a United States citizen alleged to have engaged in noncommercial illicit sexual conduct with a minor in Haiti after traveling there, is a constitutional exercise of congressional power and whether its extraterritorial application violates the Fifth Amendment Due Process Clause. More specifically, the court considered whether the statute could be sustained under the Necessary and Proper Clause as implementation of a valid treaty and whether applying it abroad was arbitrary or fundamentally unfair.

Rule

Where a valid non-self-executing treaty exists, Congress may enact implementing legislation under the Necessary and Proper Clause if the statute is a means rationally related, or reasonably adapted, to carrying the treaty into execution. For extraterritorial criminal application, due process is satisfied so long as Congress has clearly expressed intent that the statute apply abroad and the application is neither arbitrary nor fundamentally unfair; citizenship alone is sufficient to satisfy due process concerns.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

After the Senate ratifies a non-self-executing treaty requiring member nations to criminalize the sexual exploitation of children, Congress enacts a statute making it a felony for any U.S. citizen who resides in a foreign country to engage in a sexual act with a person under 18 abroad. Omar Velez, a U.S. citizen living temporarily in Lima, Peru, is indicted under the statute and argues Congress lacks Article I authority because the conduct was private and noncommercial.

What is the strongest basis for upholding the statute as applied to Omar?

Explanation. The majority held that where a valid non-self-executing treaty exists, Congress may enact implementing legislation under the Necessary and Proper Clause so long as the statute is rationally related, or reasonably adapted, to carrying the treaty into execution. The opinion expressly relied on treaty implementation rather than resolving the foreign commerce question. (Derived from United States v. Bollinger (n.d.).)