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Abstract

The world is becoming a smaller place. Technology and the Internet have made global travel and communication easier, quicker, and more common. Novel legal issues arise every day to deal with this modern interconnected world. How does the law address these new problems?

Congress is allowed “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The scope of Congress’s power to regulate commerce “among the several States” (the “Interstate Commerce Clause”) has long been debated. In the modern world of global interaction, Congress’s power to regulate commerce “with foreign Nations” (the “Foreign Commerce Clause”) may soon take center-stage. The U.S. Supreme Court, however, has not yet articulated a legal framework for the Foreign Commerce Clause. This lack of guidance has lead to circuit splits and confusion as to the scope of this power.

This legal issue has recently surfaced in the context of the PROTECT Act, a statute with extraterritorial application that prohibits U.S. citizens from molesting children abroad. Does the Foreign Commerce Clause give Congress plenary power to make it a crime for a U.S. citizen to engage in child sex tourism in Cambodia? How about robbing a bank in Spain? What about for far less offensive conduct, such as littering in France? Indeed, can this be taken to the extreme so that under the foreign commerce power Congress can prohibit a U.S. citizen from eating pasta in Italy? How about conduct by non-U.S citizens or other countries? Can Congress make it a crime for a non-U.S. citizen to engage in child sex tourism in Cambodia? Can Congress require Mexico to enact an embargo of Cuban cigars?

What connection, if any, must the conduct have to the United States in order for it to fall within the scope of the Foreign Commerce Clause? Lower courts are in disarray in how to answer this question. The purpose of this Article is to set forth a practical and comprehensive legal framework for the Foreign Commerce Clause that could be applied to these different situations and to the myriad of other current federal laws with extraterritorial application. This is the first Article to contemplate a distinct legal framework in light of international legal principles and in light of the history, jurisprudence, and text of the Foreign Commerce Clause.

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