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Beyond the Article I Horizon: Congress's Enumerated Powers and Universal Jurisdiction Over Drug Crimes

By Eugene Kontorovich. Full text here.

The United States routinely apprehends foreign drug traffickers in international waters. It prosecutes many of them under the Maritime Drug Law Enforcement Act, which allows for jurisdiction even over foreign-flagged vessels with no demonstrable intent of bringing their cargo to the United States. This assertion of universal jurisdiction—a doctrine generally reserved for heinous human rights violations—is by far the most vigorous by the United States, or any other nation. Yet neither the cases nor the commentary has explored the source of Congress’s constitutional authority to legislate extraterritorially about conduct with no connection to the United States.

This Article argues that most exercises of universal jurisdiction under the MDLEA exceed Congress’s Article I powers. The statute is generally seen as an exercise of Congress’s power to “define and punish Piracies and Felonies on the high Seas.” The power over “Piracies” is distinct from “Felonies.” The clause only authorizes universal jurisdiction over piracy, and, in a broader view, other offenses clearly treated as universally cognizable by today’s international law. Piracy was until recently the only universally cognizable offense. Regular felonies—all other crimes—can only be punished when they have some connection to the United States.

This Article shows that drug trafficking is a felony rather than a piracy for purposes of the Define and Punish Clause. An examination of the criteria for universal jurisdiction, international treaties regarding the high seas and narcotics, and state practice show that it is not universally cognizable. As a result, Congress can punish it only when it has a nexus with the United States. Crucially, this limitation on Congress’s authority does not come directly from customary international law, which Congress can override. Rather, it comes from the Constitution itself, which incorporates international law by reference. Additionally, certain sections of the Act exceed the scope of the clause by reaching defendants not on the “high Seas,” but in foreign waters.

The statute’s allowance of universal jurisdiction cannot be justified on alternate grounds, such as the treaty power or Foreign Commerce Clause. The statute was not passed to implement any treaty to which the United States is a party. While the United States has subsequently joined a treaty whose subject matter encompasses drug trafficking on the high seas, the language of the treaty, and certain declarations made by the Senate in ratifying it, make it a dubious basis for supporting the MDLEA. The Foreign Commerce Clause has never been used to regulate commerce with no demonstrable connection to the United States. If one were to understand Congress’s power under that provision so broadly, it would give it unlimited legislative power over the entire world.

The Article concludes that, with the narrow exception of certain stateless vessels, the universal application of the MDLEA violates Article I of the Constitution. Congress, a body of limited and enumerated powers, does not have a general constitutional authority to legislate for the rest of the world.