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Ryan R. Babb

Abstract

Maritime drug trafficking poses a serious threat to the security and societal well-being of the United States. As one of the largest consumers of foreign-cultivated illicit drugs, the United States serves as a lucrative market for international drug trafficking organizations. Exploiting this insatiable demand, drug traffickers often use maritime routes in the Eastern Pacific Ocean, the Caribbean Sea, and the Gulf of Mexico to convey bulk quantities of drugs ultimately bound for the United States. The United States Coast Guard, which is charged with stopping drug traffickers within this six million square mile maritime zone, faces a task akin to searching for a needle in a haystack. Seeking to enhance the Coast Guard’s ability to suppress drug trafficking efforts as close to their origins as possible, the Maritime Drug Law Enforcement Act (MDLEA), which criminalizes extraterritorial maritime drug trafficking, includes a far-reaching provision providing for United States jurisdiction over drug trafficking vessels interdicted in the territorial seas of a foreign nation. While the MDLEA has generally withstood constitutional attack since the statute’s enactment, the U.S. Court of Appeals for the Eleventh Circuit struck major blows to the constitutionality of this critical provision of the MDLEA in United States v. Bellaizac-Hurtado and United States v. Davila-Mendoza. In each case, the Eleventh Circuit held that Congress exceeded its authority under Article I, Section 8 of the U.S. Constitution in criminalizing the drug trafficking conduct of foreign persons aboard foreign vessels in foreign territorial seas. The Eleventh Circuit’s holdings seriously undermine the United States’ ability to suppress maritime drug trafficking, signaling to drug traffickers that they may remain beyond the reach of the United States simply by shifting their trafficking routes to remain entirely within the territorial seas of Caribbean, Central American, and South American nations, where there is a markedly limited law enforcement presence. Contrary to the Eleventh Circuit’s holdings, however, this Note argues that Congress does have the power to criminalize the drug trafficking conduct of foreign persons aboard foreign vessels in foreign territorial seas under the Define and Punish Clause, the Foreign Commerce Clause, and the Necessary and Proper Clause. The Eleventh Circuit stands alone in holding that the MDLEA is unconstitutional as applied to foreign persons aboard foreign vessels in foreign territorial seas. Other circuits should not follow the Eleventh Circuit’s lead but should instead find that Article I, Section 8 supports such an application of the MDLEA.

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