The dynamic incorporation of foreign law and the constitutional regulation of federal lawmaking.

• Author: Larkin, Paul J., Jr.
• Position: Introduction through III. The Constitutional Issues Raised by the Lacey Act's Delegation of Federal Lawmaking Authority A. Article I Problems with the Lacey Act 1. The 'Intelligible Principle' Requirement a. Laws Imposing Criminal Liability Must Be Readily Available to the Public, p. 337-386

INTRODUCTION I. THE LACEY ACT AND THE INCORPORATION OF FOREIGN LAW II. THE FEDERAL LAWMAKING PROCESS A. The Vesting of Legislative Authority in Congress: The Article I Bicameralism and Presentment Clauses B. The Delegation of Legislative Authority to the Executive Branch: The Article II Appointments Clause 1. "Static" vs. "Dynamic" Delegation 2. Delegating Federal Lawmaking Authority to Federal Agencies a. The Conventional Theory b. Two Unconventional Theories c. The Common Denominator 3. Delegating Federal Lawmaking Authority to State Officers III. THE CONSTITUTIONAL ISSUES RAISED BY THE LACEY ACT'S DELEGATION OF FEDERAL LAWMAKING AUTHORITY A. Article I Problems With the Lacey Act 1. The "Intelligible Principle" Requirement a. Laws Imposing Criminal Liability Must Be Readily Available to the Public b. Laws Imposing Criminal Liability Must Be Written in English c. Laws Imposing Criminal Liability Must Be Readily Understandable by the Average Person d. Laws Imposing Criminal Liability Must Be Fixed and Precise 2. The "Private Nondelegation Doctrine" a. The Supreme Court's Early Private Nondelegation Doctrine Decisions: Eubank, Thomas Cusack, Roberge, Schechter Poultry, and Carter Coal b. The Supreme Court's Later Private Nondelegation Doctrine Decisions: Currin, Rock Royal Coop., New Motor Vehicle Board, and Midkiff c. The Private Nondelegation Doctrine Today 3. The Role of Due Process as "the Law of the Land" 4. The Relevance of "the Law of the Land" to the Lacey Act B. Article II Problems With the Lacey Act IV. A POTENTIAL NECESSITY DEFENSE V. CONCLUSION INTRODUCTION

The Constitution of the United States establishes an interrelated system of national and state governments, each with its own separate authority that partially complements and partially overlaps the powers lodged in the other. The Constitution assumes that states have their own independent legal sovereignty drawn from their own constitutions and possess a general "police power" denied to the federal government. (1) The Constitution creates the national government and grants it exclusive authority to regulate some areas of responsibility, such as foreign affairs. (2) In cases of a conflict between state and federal law, the default rule is that the latter will supplant the former. (3) The result is that the Framers left the states and their regulatory authority in place except insofar as necessary to enable the new federal government to protect and regulate the nation as a whole and to prevent the type of destructive interstate economic warfare that had characterized government under the Articles of Confederation. (4) Yet, rather than always act as competitors, the federal and state governments have entered into a variety of cooperative endeavors, such as the different national social insurance programs that have existed since the New Deal. (5)

"The great innovation of this design was that 'our citizens would have two political capacities, one state and one federal, each protected from incursion by the other'--'a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it.'" (6)

Foreign governments play no role in that scheme. Just as no state grants another the right to intervene in its domestic politics, nations do not cede sovereignty to each other. The prospect that the United States would grant a foreign government the legal authority to govern the people of this nation is absurd. It certainly would seem bizarre to most Americans to suggest that the world's oldest surviving representative democracy should give to a foreign country the bedrock right that our ancestors, families, and friends have purchased with blood, treasure, and honor for more than two centuries. History clearly looks askance on that possibility. The Declaration of Independence denounced King George III for "subjecting] us to a Jurisdiction foreign to our Constitution, and unacknowledged by our Laws," and for "taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Government." (7) The Colonists fought the American Revolution to overthrow foreign rule and to win the freedom to govern themselves. (8) The Framers gathered in Philadelphia to form a national government for "ourselves and our Posterity." (9) The very first words in the Constitution declare that "We the People of the United States" adopted that document as the charter for that national government. (10) The ordinary meaning of the term "republic" is a system of government in which the members of a polity rule themselves through elected representatives. (11) The Framers called this system "a Republican Form of Government." (12) Indeed, it is fair to say that the average member of the public likely would find the scenario of foreign rule utterly preposterous. (13)

Yet, Congress has enacted several federal laws that have the effect of giving foreign nations legal authority over the conduct of Americans in certain respects. (14) The Lacey Act (15) makes it a federal offense to import fauna or flora in violation of a foreign nation's law. (16) This statute essentially incorporates whatever law foreign nations adopt governing the taking of animal or plant life, thereby delegating to every foreign nation the authority to define an element in a federal law. The Lacey Act achieves that result not merely to serve as a basis for extraditing to the foreign nation whose laws were allegedly violated whatever party is supposedly responsible for those crimes. No, the Lacey Act creates a federal offense that can be--and has been--prosecuted in federal court in this country. (17)

It is unusual to see American law impose criminal liability for what happens beyond our shores. Local or state officials bring the bulk of our criminal prosecutions. (18) For historical, legal, practical, and political reasons, the charges almost always involve conduct that is entirely domestic. (19) The result is that most criminal cases rarely involve crimes committed on foreign soil.

The federal government occupies a different position. It enjoys authority that states lack to pass legislation with extraterritorial effect. (20) It also has an interest in regulating the conduct of Americans abroad and in cooperating with foreign governments over conduct they deem undesirable, regardless of the nationality of the responsible party. (21) Congress has invoked that authority on various occasions over the past few decades to adopt federal criminal laws governing conduct overseas. (22) Federal law has expanded to the point that the federal government can charge American citizens (and foreign nationals) under federal law for a variety of actions that occur, at least in part, beyond our shores. (23)

It is unusual for Congress to make domestic criminal liability turn on the issue of whether a party has broken a foreign sovereign's law. But it is precisely the government's ability to enforce the Lacey Act through use of the criminal law that transforms it from a peculiar curiosity of slight interest into a serious vexation for parties involved in the import business. Given that the United States is the world's largest wood products consumer and one of the major importers of tropical hardwood, the number of companies at risk of violating the Lacey Act may be quite large. (24) The problems are particularly acute for an importer that uses one or more intermediaries in the long and complex supply or production chain between the country of origin and this nation. (25) The Lacey Act applies to anyone who participates in that process, regardless of whether she intended to break a foreign country's law or even knew that a limitation existed. Any party in that chain--from the person who cuts timber in a foreign nation, to the person who exports that wood elsewhere, to the person who receives and takes it the last mile across our border--is at risk of violating the Lacey Act if anyone at any prior step has violated the original foreign nation's laws. (26) As that law stands today, the federal government can imprison a person for conduct done by someone else beyond our shores that violates no domestic law, but does violate some foreign law in the source country.

Defendants prosecuted under the Lacey Act have challenged the constitutionality of that statute on the ground that it unconstitutionally delegates federal lawmaking power. To date, however, the federal courts have rebuffed those claims. This Article maintains that the courts have overlooked or undervalued several of the constitutional issues posed by the Lacey Act. Congress's decision to authorize foreign governments and foreign officials to define the content of a domestic law raises legal issues residing at the core of any analysis of how the federal government may govern, and the legal challenges to the Lacey Act have far more heft than the federal courts have believed. (27)

Part I discusses the Lacey Act. It explains that the statute incorporates a virtually unlimited number of foreign legal edicts and makes it a federal offense to violate whatever a foreign nation denominates as "law." Part II next discusses the federal lawmaking process. It explains that, while the text of Article I presumes that only Congress may exercise "legislative Powers," the Supreme Court has upheld a variety of congressional delegations of lawmaking authority to other parties, such as federal administrative agencies. The Lacey Act is unlike any statute that the Court has upheld, however, because it vests domestic federal lawmaking in foreign governments or their officials. Part III addresses the constitutional flaws in the Lacey Act. That part starts by explaining that the statute supplies no "intelligible principle" for foreign governments to use when deciding what conduct to make a crime and...