Third Circuit Upholds Foreign Commerce Clause Power in Federal Criminal Case

New Third Circuit Decision – Foreign Commerce Clause and Criminal Law

On February 3, 2025, the United States Court of Appeals for the Third Circuit decided United States v. Corrigan Clay, which upheld the constitutionality of 18 U.S.C. § 2423(c), a statute which criminalizes the sexual abuse of minors abroad by U.S. citizens or legal permanent residents. The Court ruled that Congress had the authority to enact this law under both the Foreign Commerce Clause, U.S. Const. art. I, § 8, cl. 3, and the Necessary and Proper Clause, U.S.  Const.  art.  I,  §  8,  cl.  18.

Facts and Procedural History of the Case

Corrigan Clay, a U.S. citizen, pled guilty to sexually abusing his adopted minor daughter while living in Haiti. The indictment alleged that he had engaged in illicit sexual conduct while residing in Haiti, and traveling between Haiti and the United States, in violation of 18 U.S.C. § 2423(c) (transportation of minors). Clay moved to dismiss the indictment arguing that § 2423(c) was unconstitutional on its face and as applied to him. He maintained that Congress lacked the authority to regulate his conduct because it occurred outside the United States and was entirely non-commercial in nature.

The District Court denied Clay’s motion to dismiss, relying on the Third Circuit’s decision in United States v. Pendleton, 658  F.3d  299  (3d  Cir.  2011), which upheld 18 U.S.C. § 2423(c) as a constitutional exercise of Congress’s authority to regulate the channels of foreign commerce. Clay pled guilty and was sentenced to 235 months in prison. He appealed on procedural and substantive grounds.

The Foreign Commerce Clause and Congressional Authority

The Third Circuit first examined whether Congress had the power to enact 18 U.S.C. § 2423(c) under the Foreign Commerce Clause. The Court found that the Foreign Commerce Clause grants Congress broader authority than the Interstate Commerce Clause, as it is intended to allow the federal government to regulate international affairs and prevent the United States from becoming a safe haven for crimes committed abroad.

The Court reaffirmed its holding in Pendleton, concluding that 18 U.S.C. § 2423(c) is a valid exercise of Congress’s power to regulate the channels of foreign commerce, as Clay repeatedly traveled between Haiti and the United States, maintained economic ties in the U.S., and used U.S. legal processes to adopt his children. The Court also found that § 2423(c) regulates activities that substantially affect foreign commerce, as non-commercial sexual abuse contributes to the broader problem of international sex tourism and child exploitation, which Congress has sought to combat through various laws.

Extraterritorial Jurisdiction and the Necessary and Proper Clause

The Court further held that § 2423(c) is a constitutional exercise of Congress’s power under the Necessary and Proper Clause, U.S.  Const.  art.  I,  §  8,  cl.  18, to implement treaties. The U.S. is a party to the Optional Protocol to the United Nations Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography. This treaty obligates signatory nations to take legal measures against child sexual exploitation, including jurisdiction over offenses committed by their nationals abroad.

The Court reasoned that § 2423(c) is rationally related to fulfilling these treaty obligations and preventing legal loopholes that would allow U.S. citizens to evade prosecution for child sexual abuse abroad. This decision reinforces the power of the Foreign Commerce Clause and the Necessary and Proper Clause to ensure that U.S. citizens engaging in illicit conduct overseas can be prosecuted under federal law.

Sentencing Challenges and Court’s Rationale

In rejecting Clay’s sentencing challenges, the Court held that the District Court properly considered the relevant factors under 18 U.S.C. § 3553(a). The Court found no error in the District Court’s decision to impose a sentence at the lower end of the Sentencing Guidelines range and rejected Clay’s argument that his sentence created unwarranted disparities with other defendants. The Court concluded that the sentence appropriately reflected the seriousness of the offense and the need for deterrence.

Key Takeaways from the Foreign Commerce Clause Decision

The Third Circuit’s decision in United States v. Clay reaffirms Congress’s authority to regulate the extraterritorial conduct of U.S. citizens when it affects foreign commerce and aligns with treaty obligations. The ruling upholds the constitutionality of 18 U.S.C. § 2423(c) as a key tool in combating international child exploitation and ensures that U.S. citizens can be held accountable for sexual offenses committed abroad.

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