The Volokh Conspiracy

Could Congress pass a law under its commerce clause powers prohibiting residents of one state from traveling to another state for the purpose of purchasing widgets? This is quintessentially interstate commerce, no?

Perhaps Congress could eliminate overseas child labor and sweatshops. Could Congress regulate the working conditions under which goods are produced in other countries if those goods are produced with the intention of importing them into this country? If Congress could not do that directly, could it do it indirectly by requiring the person importing the goods into the U.S. to investigate and certify that overseas production facilities satisfy minimum working condition requirements set by Congress?

I think Congress could constitutionally prohibit residents of the U.S. from traveling to Nevada and gambling there, under this reasoning.

Eugene, do you really think that "commerce with foreign nations" includes transactions that occur entirely within the territory of a foreign nation, for goods or services to be consumed in that country, just because one party happens to be a USAn citizen?

This isn't as bright a line as you might think.

I would certainly argue that a person who went abroad to have surgery was having commerce with a foreign nation, whether or not the surgery was of a type that left some surgical appliances in hir body.

There are substantial high-end services being done abroad. Although I admit that in these cases there's a handle to regulate these companies by regulating the operation of the equpment they work on after it comes back, that seems a bit artificial and likely to be too cumbersome in practice for anything smaller and less regulated than an aircraft.

Yes, in the cited situations [there are two links above] the spare parts come back with the machines, but that can be worked around if it's worthwhile by having the customer bring hir own parts.

-dk

I think that the paying element makes the case an easy case-- if the foreign commerce clause means anything, it means that the government can regulate commercial transactions between people or entities who reside in the US and people or entities abroad. (I might draw an exception where the purpose of the regulation is not to restrict commerce but to restrict travel entirely, though I have to admit that the Supreme Court held that even that falls within the federal government's power in the cases involving the Cuban embargo.)

In response to the other commenters, yes, Congress can prohibit people from crossing state lines to purchase something. Even those with the most circumscribed view of the Commerce Clause (such as Justice Thomas) except this. The classic example of this is the Mann Act, which prohibited the transportation of women across state lines for an "immoral" purpose-- it was sustained against Commerce Clause challenges at a time when the Court's view of federal power was a lot more limited than it is now.

Having said all that, I actually would go a little farther than Professor Volokh does. As I said, the paying element makes it an easy case. But "commerce" doesn't just mean an exchange of something for money. Just as interstate non-economic activity can sometimes be regulated under the domestic Commerce Clause (albeit subject to somewhat more exacting scrutiny), non-economic transactions between Americans and foreigners can surely be regulated. Congress has broad power to regulate the conduct of Americans abroad, so long as that regulation doesn't violate any of the restrictions in the Bill of Rights or some other restriction on Congressional power. To take an example that conservatives and libertarians may be able to appreciate, Congress can prohibit an American citizen with a security clearance from disclosing state secrets abroad, even if no money changes hands. What power does that fall under, if not the foreign commerce clause?

Accordingly, Congress probably has the power to prohibit Americans from having sexual relations with underage girls in foreign countries, subject only to whatever strictures that Lawrence v. Texas imposes.

Don't forget the famous definition of commerce from Gibbons v. Ogden: "intercourse."

My understanding (not a lawyer) is that the US is unusual in that it believes its laws applies to its citizens wherever they are in the world, while most countries don't attempt to apply its laws to people beyond its borders.

Sam and Houston:

I understand your trepidation in embracing the idea that under the foreign commerce clause, Congress has near-plenary authority to regulate the conduct of US citizens and residents abroad. But you need to remember several things about this:

1. The foreign commerce power is a LIMITATION on individual states' power to regulate foreign affairs. Thus, either Congress does it or nobody does it. Concentrating the power in Congress' hands actually means it gets exercised less often and also means that US citizens and residents are less likely to be subjected to the laws of several different states when conducting commerce abroad.

2. Just because Congress has this power does not mean that it exercises it. Indeed, Congress has not seen fit to make the vast majority of illegal acts within this country illegal when done by US citizens and residents in other countries-- even such heinous acts as murder and armed robbery. If Congress' exercise of its power metastatized, the way it has with the definition of ordinary crimes within the US as federal offenses, this could be a problem. But there's no evidence that this has happened or is going to happen. It happens that the issue of child prostitution is a serious issue and one that uniquely requires congressional action, in that so many "sex tourists" are Americans and foreign countries' effectiveness at policing the activity has not been optimal.

3. I don't think that it is unusual for nations to believe they have the power to legislate with respect to the extraterritorial actions of their citizens. Indeed, I would bet that most governments believe that they have that power. It may be that other governments do not regularly exercise that power, but I see no sign that ours does either.

I'm a expat US citizen who's been living and working in Asia for 5 years, with no intention of ever returning. It comes as quite a revelation to learn that when I shop at the local market, pick up my dry cleaning, take a taxi to work, or buy a newspaper, I'm engaged in international commerce.

On the other hand, I've seen pre-pubescent girls being sold on the streets in Cambodia; I know a Filipina whose mother sold her virginity to a foreigner at 16; I've done pro-bono work for anti-trafficking NGOs and heard stories that made my skin crawl.

So I say, if we can stretch the Constitution to make buggering one's boyfriend a fundamental right and smoking a home grown joint to relieve glaucoma a crime, then what the hell, I can damned sure live with us stretching it a little bit further to put away the dispicable bastards buying chldren's bodies.

Dilan Esper: yes, it is unusual.

The USA is also very unusual in believing that its laws apply to complete foreigners, acting in foreign countries - the USA has prosecuted foreign companies under its antitrust law, for forming an international uranium cartel, even none of the companies involved in the cartel were USAn, and none of the negotiations involved in setting it up took place in the USA.

The USA is also unusual in claiming the right to tax its citizens worldwide income, no matter where they live, or where the income was earned.