This appeal presents a novel issue about the scope of congressional power to proscribe conduct abroad: whether the Maritime Drug Law Enforcement Act, 46 U.S.C. §§ 70503(a), 70506, exceeds the power of Congress to “define and punish … Offences against the Law of Nations,” U.S. Const. Art. I, § 8, cl. 10, as applied to the drug-trafficking activities of Yimmi Bellaizac-Hurtado, Pedro Felipe Angulo-Rodallega, Albeiro Gonzalez-Valois, and Luis Carlos Riascos-Hurtado in the territorial waters of Panama. Because we conclude that drug trafficking is not an “Offence against the Law of Nations” and that Congress cannot
constitutionally proscribe the defendants’ conduct under the Offences Clause, we vacate their convictions….
We divide our discussion in two parts. First, we explain why the power of Congress to define and punish conduct under the Offences Clause is limited by customary international law. Second, we explain why drug trafficking is not a violation of customary international law and, as a result, falls outside of the power of Congress under the Offences Clause.
If the Justice Department asks the Court to review the case — and I can’t see why it wouldn’t — the Court is nearly certain to agree to hear it. Thanks to How Appealing for the pointer.
UPDATE: Unless I’m mistaken, the opinion’s analysis is quite close to that discussed by our occasional guest-blogger Eugene Kontorovich in his articles The “Define and Punish” Clause and the Limits of Universal Jurisdiction, 103 Northwestern University Law Review 149 (2009) and Beyond the Article I Horizon: Congress’s Enumerated Powers and Universal Jurisdiction Over Drug Crimes, 93 Minnesota Law Review 1191 (2009).