Justin Senior


Congress enacted the PROTECT Act in 2003 to curtail the sexual abuse of children by U.S. citizens abroad. While the Act has not received much attention from scholars or courts, defendants in court consistently challenge its constitutionality. Congress maintains that it has the Foreign Commerce Clause power to prohibit the illicit sex activity in question. However, the Foreign Commerce Clause, unlike its Interstate and Indian Commerce Clause brethren, has received very little attention. The Supreme Court has rarely—and not at all recently—discussed the Foreign Commerce Clause; and its lack of guidance in this arena has led to a recently widened circuit split regarding the constitutionality of the Act and the scope of the Foreign Commerce Clause. Lower courts are at a loss for how to approach and analyze the Foreign Commerce Clause in the context of the Act. Some courts use the Interstate Commerce Clause framework; others create new language and establish their own tests. These approaches have overcomplicated analysis for the foreign context. While other scholars have discussed this issue, they have generally contributed to the confusion by also creating new tests. This Note is the first endeavor to simplify the approach to Foreign Commerce Clause cases. It argues that courts should employ the age-old rational basis standard. This solution represents a commonsense approach and simplifies analysis for Foreign Commerce Clause cases in the future; additionally, it clears up the overcomplicated state of the jurisprudence created by the circuit split.