AuthorAdeyemi, Femi

CONSTITUTIONAL LAW--CATCHING FLIGHTS AND COURT CASES--United States v. Park, 938 F.3d 354 (D.C. Cir. 2019).

Article I, Section 8 of the United States Constitution specifies powers vested in Congress, including the powers contained within the Commerce Clause and the Necessary and Proper Clause. (1) The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (Optional Protocol) is a progressive step in a global strategic response to global child exploitation. (2) In United States v. Park? the Court of Appeals for the District of Columbia Circuit tackled the issue of whether Congress was authorized to reach the defendant's crime of child sexual exploitation which occurred transnationally. (4) The Appeals Court held that it did in fact fall within the scope of Congress' authority, and this authority was bolstered by the Foreign Commerce Clause (FCC), contrary to the lower court decision. (5)

Joseph Ricky Park is a convicted sexual offender with a long and troubling history of committing sexual offenses against minors. (6) A citizen of the United States, Park's initial conviction occurred in the state of Connecticut. (7) Over three decades, Park traveled out of the country and sexually abused minors repeatedly, leading to his deportation or voluntary departure from several countries. (8)

Park's final destination was Guam where he was finally arrested by an agent of the United States Department of Homeland Security and indicted for his conduct abroad. (9) Specifically, the government charged Park with violating 18 U.S.C. [section] 2423(c) and (e). (10) The district court dismissed Park's indictment, concluding that Congress was not authorized to reach Park's conduct while he was in Vietnam. (11) The government appealed the dismissal of Park's indictment. (12) The Court of Appeals for the District of Columbia Circuit reversed and remanded, holding that the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (PROTECT Act) was constitutionally applied to Park's conduct through Congress's powers derived from the Necessary and Proper Clause. (13)

The Commerce Clause authorizes Congressional authority over regulation of commerce in three enumerated categories: with foreign nations, among several states, and with the Indian tribes. (14) In general, the regulation of commerce with foreign nations, as authorized by the FCC, has received an underwhelming level of attention in the legal community, remaining overshadowed by the Interstate Commerce Clause (ICC). (15) Although overshadowed, the FCC boasts a significant level of expansion given the increasingly global and interconnected nature of the world today. (16) Accordingly, this expansion, as well as the unilateral nature of the FCC, have raised novel issues in application and drawn some criticism. (17)

Sexual exploitation of children is a major issue globally. (l8) According to the United Nations International Children's Emergency Fund (UNICEF), there is a staggering number of children who have been victims of sexual violence. (19) Child sexual exploitation typically begins with sexual abuse, but it often ends up in domestic or international child trafficking for sexual exploitation. (20) Several countries are actively contributing to the eradication of child sexual exploitation and related crimes. (21)

There has been significant progress made in the advancement of child rights globally. (22) Recognition of global rights for children was solidified with the adoption of the Convention on the Rights of the Child ("Convention") in the late 1900s. (23) Furthermore, there has recently been a global showing of a sense of urgency in the late 2000s with the adoption of several Optional Protocols to supplement the original Convention. (24) These Optional Protocols were implemented to further increase the strong, coordinated, global response to issues of child exploitation. (25) Congress ratified the Optional Protocol and also enacted the PROTECT Act in alignment with the Optional Protocol's goals. (26)

In United States v. Park, the Court of Appeals for the District of Columbia Circuit determined that Congress's exercise of authority over Park's sexual abuse of minors while abroad was constitutionally valid and supported by the FCC. (27) The court began by addressing Congress's powers under the Necessary and Proper Clause of the Constitution. (28) The court noted that such exercise of power was related to furthering the ultimate goal of eradicating global sexual exploitation of children. (29) Moreover, the court explained that the PROTECT Act's prohibition against certain conduct by American citizens, while abroad, was also significant in fulfilling United States's obligations under the Optional Protocol. (30)

Furthermore, the court analyzed whether Congress's powers under the Commerce Clause--specifically the FCC--encompassed Park's conduct. (31) The court rationalized that the FCC was similar to the ICC. (32) Thus, the court adapted the ICC's comprehensively established framework, analyzed the scope of Congress's authority under this framework, and determined that Congress's authority under the FCC exceeded its authority under the ICC. (33)

The Court of Appeals for the District of Columbia Circuit's decision that Park's actions fell within the scope of Congress's authority in United States v. Park, although gratifying, is slightly concerning and raises some issues. (34) Indeed, while Park's conduct is undoubtedly reprehensible, this court's conclusion--like that of many other lower courts--that Congress has broad sweeping authority to reach the transnational activities of American citizens is slightly troubling. (35) Such a conclusion opens the door to potentially reaching a wide array of conduct--perhaps as long as it furthers some noble interest. (36)

The text of the Commerce Clause suggests that Congress's authority under the FCC is narrower than under the ICC. (37) However, application of the FCC has been much broader than the ICC as Federal laws continue to target foreign activity "on a foreign commerce rationale." (38) Because there is little guidance from the Supreme Court about the scope of congressional powers regulating foreign conduct, and no original framework dedicated to analyzing the FCC, lower courts have continued to struggle with the proper analysis. (39) Consequently, these courts, like the court in Park, have bent the ICC's framework to fit the FCC. (40)

Moreover, the question of what constitutes commerce under the FCC is still unclear. (41) Currently, there seems to be little distinction in judicial analysis of what constitutes economic versus non-economic matters when using the ICC's framework to analyze the FCC. (42) Ultimately, there needs to be some clarification as "Congress is projecting U.S. law abroad in new and aggressive ways." (43)

The Commerce Clause--particularly the FCC--boasts enormous potential, but constant misapplication and misconstruction of its separate and distinct clauses has led to scholarly criticism and constitutional challenges. Moreover, due to the lack of guidance from the Supreme Court, the lower courts continue to superimpose the ICC's three-prong framework unto the FCC, constantly stretching it to fit the next case. In the instant case, the Court of Appeals for the District of Columbia Circuit correctly decided that the defendant sexually abusing children in multiple foreign nations fell within the scope of Congress's authority. This is because Congress rightfully possessed the authority to enact the PROTECT Act in response to the United States's obligations under the Optional Protocol treaty. However, the court's reasoning that Congress's authority was further bolstered by the FCC is questionable as cases such as Park's contain complex layers that a makeshift FCC framework cannot withstand. Ultimately, the Supreme Court needs to create a specific framework dedicated to FCC analysis.

(1.) See U.S. CONST, art. I, [section]8, cl. 3 (outlining Congress's authority to regulate commerce). The Commerce Clause of the United States's Constitution authorizes Congress to regulate the country's domestic and transnational commerce. Id. Specifically, Article I, Section 8, Clause 3 provides that Congress shall have power "[t]o regulate Commerce with foreign Nations, and among the several States" and Clause 18 provides that Congress has power to "make all laws which shall be necessary and proper for carrying into execution the foregoing powers . . . ." Id. See also U.S. CONST, art. II, [section] 2, cl. 2 (outlining treaty power). Article II, Section 2, Clause 2 provides that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties . . . ." Id. See. e.g., Katzenbach v. McClung, 379 U.S. 294, 305 (1964) (finding Necessary and Proper Clause provides Congressional authority to end racial discrimination in restaurants); Neely v. Ilenkel, 180 U.S. 109, 121-22 (1901) (holding Necessary and Proper Clause authorizes Congress to enact legislation appropriate to give efficacy to treaties); United States v. Harris, 498 F.3d 278, 291 (4th Cir. 2007) (holding Congress possessed authority to criminalize witness tampering under Necessary and Proper Clause); McLellan v. Mississippi Power & Light Co., 526 F.2d 870, 882 (5th Cir. 1976) (holding Necessary and Proper Clause authorizes civil Congressional remedy for rights denied under bankruptcy statutes). See also David Forte, Commerce, Commerce, Everywhere: The Uses and Abuses of the Commerce Clause, HERITAGE FOUND. (Jan. 18, 2011), (providing definition of Commerce Clause). The Commerce Clause's definition has evolved over the years and judicial interpretation has resulted in various definitions of "commerce." Id. Some of these...

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