[00:00:01] Speaker 01: Case number 18-37, United States of America, Appellant v. Joseph Mickey Park, also known as Joseph de Nasi. [00:00:09] Speaker 01: Ms. [00:00:09] Speaker 01: Ralston for the Appellant, Mr. Kramer for the Appellant. [00:00:15] Speaker 01: Good morning, Your Honors, and may it please the Court, Sonia Ralston for the United States. [00:00:20] Speaker 01: Best to reserve five minutes for the rebuttal. [00:00:22] Speaker 01: This case asks whether Section 2423, as applied to Mr. Park, is constitutional in any of four ways. [00:00:29] Speaker 01: That's under the Commerce Power, [00:00:31] Speaker 01: or the treaty power outlined in a matrix, the F3 conduct of production and the F1 conduct of child sexual abuse, set one, two, three, four, as outlined in the briefs. [00:00:41] Speaker 01: And because this court is exercising de novo review, Mr. Park continues to bear the heavy burden of making a, quote, plain showing that Congress has exceeded its constitutional bounds. [00:00:53] Speaker 01: He has not and cannot do so. [00:00:55] Speaker 01: This court should therefore reverse and reinstate the indictment. [00:00:58] Speaker 01: Turning first to that first box, [00:01:00] Speaker 01: the F3 production conduct under the Commerce Clause. [00:01:03] Speaker 01: This is the easiest way to resolve this part of the case. [00:01:07] Speaker 01: This doesn't require the Court to address the framework question of whether a broader framework or the Lopez framework applies, because under Raich, the production of any commodity, every instance of the production of any commodity, is commercial activity that can be regulated by Congress. [00:01:22] Speaker 01: This is the same as the marijuana at issue in Reich, the wheat at issue in Wickard, and as this court recognized, child pornography in Sullivan, other courts, the Sixth Circuit in Bowers, the Ninth Circuit overruling prior precedent in light of Reich. [00:01:35] Speaker 03: But under that, don't you have to have some substantial effect on commerce? [00:01:40] Speaker 01: In the aggregate, Your Honor, yes. [00:01:42] Speaker 01: So because the conduct, the production of a commodity is economic, you can aggregate all of the instances of production of the commodity. [00:01:50] Speaker 01: And if you look at the production of child pornography in the whole, that has a substantial effect on commerce because there's a thriving global trade in the illicit commodity, just as there is in drug trade and just as Mr. Philburn's 12 acres of wheat had, although small in itself, if you aggregate all the production of wheat, that has an effect on the market. [00:02:10] Speaker 02: It just seems hard to imagine that [00:02:18] Speaker 02: Our Congress has that scope of authority to regulate with respect to conduct in other nations, even assuming that that conduct in the aggregate has an impact on the global market for child pornography. [00:02:36] Speaker 02: I understand we're in an as-applied challenge here, but we have to think about what the implications would be if you were here next week with a case [00:02:43] Speaker 02: seeking to prosecute a Vietnamese national for the same conduct, same argument? [00:02:50] Speaker 01: Yes and no. [00:02:51] Speaker 01: And I think this is a good opportunity to explain that the Article I question doesn't do all of the work. [00:02:56] Speaker 01: So this case is only presenting the Article I question. [00:03:00] Speaker 01: But in terms of what Congress can reach, it's not just Article I power. [00:03:05] Speaker 01: There's also the presumptions against violating international law or applying law extraterritorially. [00:03:11] Speaker 01: You also have the due process question, which this court hasn't yet fully held, but other courts have applied. [00:03:18] Speaker 01: And if you're talking about a Vietnamese national, you would have a due process question. [00:03:22] Speaker 01: I don't know exactly how that would shake out. [00:03:23] Speaker 01: It would depend on the facts of the case. [00:03:25] Speaker 01: But here, we're talking about a US citizen, which satisfies that due process concern. [00:03:30] Speaker 01: And also. [00:03:30] Speaker 04: Well, if there's a Vietnamese citizen with no contact with the United States, our courts wouldn't have authority under the due process clause to reach them. [00:03:40] Speaker 04: I take it your argument is because it's an American citizen, we do have the authority under the due process to reach the person. [00:03:46] Speaker 01: Yes, Your Honor, that's correct. [00:03:47] Speaker 04: Well, that seems pretty simple. [00:03:50] Speaker 04: Yes. [00:03:50] Speaker 04: You said it was sort of would require a lot more analysis. [00:03:54] Speaker 01: No, I'm saying in Judge Pillard's hypothetical, if you're talking about a different case, I think in any case we have to look at each of those components. [00:04:04] Speaker 01: And so this statute satisfies those presumptions, right? [00:04:07] Speaker 02: Is due process satisfied in this case where the individual has not been? [00:04:13] Speaker 02: I mean, is it satisfied just categorically for every national? [00:04:18] Speaker 02: Yes. [00:04:18] Speaker 01: And every green card holder? [00:04:21] Speaker 01: Due process is certainly satisfied categorically for citizens. [00:04:24] Speaker 01: And I think that's pretty clear from the Supreme Court's holding in Blackmere. [00:04:27] Speaker 01: Other courts have also considered the due process question and held that citizenship by itself is enough. [00:04:34] Speaker 01: The Supreme – Black Mirror is a case where the citizen moved abroad, he was residing in France, he had been there for a number of years before the subpoena had been issued, and then he's held in criminal contempt for refusing to answer the subpoena. [00:04:47] Speaker 01: So the Supreme Court there says that citizenship comes with it the benefits and burdens that you maintain your citizenship, you have to answer to U.S. [00:04:56] Speaker 01: laws. [00:04:57] Speaker 01: And so that satisfies the due process component. [00:05:00] Speaker 01: Also, this statute, because of the citizenship, complies with international law. [00:05:05] Speaker 01: Because of the way the statute is written, it complies with the presumption against extra-territoriality. [00:05:11] Speaker 01: It's not just the Article 1 power that's doing work. [00:05:15] Speaker 02: I know this is not this case, but it's been very helpful to hear you sort of sketch out the structure under which we think about it. [00:05:21] Speaker 02: If this were this case with someone like Mr. Park, who's a U.S. [00:05:24] Speaker 02: national, happening in Vietnam and the victim were from Laos – and I don't know if they are a signatory, but assume that Laos is also a signatory – and Laos wants to prosecute and the U.S. [00:05:35] Speaker 02: wants to prosecute and Vietnam being the place where it occurs wants to prosecute, how does that get worked out? [00:05:42] Speaker 01: So then that would be a question under an extradition treaty, and I'm not sure exactly what our treaty arrangements are with those countries, but generally the place where the conduct occurs has first dibs, so Vietnam would get to go first if they want, and that's if you look at the Pendleton case out of the Third Circuit, he was prosecuted in Germany where the conduct occurred before he returned to the United States and was prosecuted here. [00:06:10] Speaker 01: If it does happen sometimes where there is a prosecution abroad, where the conduct occurred, then as between the place where the victim is a national love and where the defendant is a national love, I just don't really answer that question. [00:06:22] Speaker 01: But it would be a question of treaty law. [00:06:24] Speaker 02: And if the extradition treaty, double-departee analog, didn't prohibit it, you could actually theoretically have prosecution in law, so prosecution and sentence in the United States. [00:06:38] Speaker 01: You could. [00:06:38] Speaker 01: It would depend on the treaty. [00:06:39] Speaker 01: So different extradition treaties treat that differently. [00:06:43] Speaker 03: What's the nexus with the United States? [00:06:47] Speaker 03: The Constitution talks about regulating commerce with foreign nations. [00:06:53] Speaker 03: So there's got to be a nexus to the United States. [00:06:56] Speaker 03: What's the nexus to the United States on that pornography here? [00:06:59] Speaker 01: So if we're still talking about the production count, the F3 conduct, then the nexus is that there's a market. [00:07:06] Speaker 01: and that every instance of production of a commodity... Well, what's the nexus with the United States? [00:07:12] Speaker 01: That the market, the United States, that market exists in the United States as well. [00:07:18] Speaker 01: Now, if you're talking about production of a commodity abroad, you have these other questions about whether Congress can regulate those things, and then you're talking about is there jurisdiction, is there venue proper, is [00:07:30] Speaker 01: Can you really send out the FBI to go get people? [00:07:34] Speaker 03: So your argument is that the production of child pornography in this instance in Vietnam has an effect on U.S. [00:07:41] Speaker 03: markets? [00:07:43] Speaker 01: Yes, just as the production of, so you're looking at that production of marijuana. [00:07:48] Speaker 03: In California, whether it had impact on U.S. [00:07:51] Speaker 03: markets, that's a little more tenable than to say a single instance of production of child pornography in Vietnam has some [00:08:00] Speaker 03: impact on U.S. [00:08:01] Speaker 03: markets. [00:08:01] Speaker 01: I think the reasoning is no different, Your Honor, because under California law that marijuana had to stay within the... The reasoning is very different. [00:08:07] Speaker 03: One's under the interstate commerce clause, right, and the other's the foreign commerce clause. [00:08:11] Speaker 03: They're not the same. [00:08:12] Speaker 01: They're not, Your Honor, and the foreign commerce clause is actually broader, which brings us to that second... Is it? [00:08:17] Speaker 03: Is it? [00:08:17] Speaker 01: Yes, it is, Your Honor. [00:08:18] Speaker 03: Every court to have addressed... What work does the word with do with foreign nations? [00:08:24] Speaker 03: Does it do any work? [00:08:25] Speaker 01: It does. [00:08:26] Speaker 01: And if you look at Bollinger, the Fourth Circuit talks about width. [00:08:29] Speaker 01: And it's talking about a U.S. [00:08:31] Speaker 01: citizen acting inside another country. [00:08:33] Speaker 01: Is the United States engaging with that country? [00:08:36] Speaker 01: Because citizens represent their countries abroad. [00:08:39] Speaker 01: And that's at page 214 of the Bollinger opinion. [00:08:42] Speaker 01: So I think that is a good analysis of the width. [00:08:44] Speaker 01: The Durham opinion also talks about that textual analysis of how width and among are different. [00:08:49] Speaker 01: And we get to that in all the courts who have looked at this, that in the foreign context, there is no federalism concern. [00:08:55] Speaker 01: There's no need to defer to the states who are going to take up that mantle. [00:09:00] Speaker 01: And that's, in fact, when we shifted from the Articles of Confederation to the Constitution, one of the things the framers were doing was trying to move more of that foreign power to consolidate it in the national government. [00:09:11] Speaker 01: talking now about the F1 conduct, there is a relationship to the market. [00:09:16] Speaker 01: There is a nexus to the market. [00:09:18] Speaker 01: Looking at the travel, the sex tourism is obviously part of the market, and that line between when travel morphs into residing, it's a fuzzy line. [00:09:28] Speaker 01: So it's not irrational, and remember the standard is rational basis. [00:09:32] Speaker 01: It's not irrational for Congress to want to plug those holes, to close those loopholes, to close the gaps, and say to make the regulation effective, [00:09:40] Speaker 01: we're going to make sure that you can't outrun the law, that you can't lie low for a few months, and it's not travel anymore. [00:09:47] Speaker 01: Now you can do whatever you want. [00:09:48] Speaker 02: I mean, ordinarily that's dealt with by information supplied by countries through cooperative agreements about where people who are suspected of crimes are located. [00:09:58] Speaker 02: This is a more aggressive approach. [00:10:01] Speaker 02: It's very odd to think about the [00:10:04] Speaker 02: In some ways it makes sense that the Foreign Commerce Clause would be broader for reasons that you say because you don't have the federalism concern. [00:10:09] Speaker 02: But federalism in a sense is a system of independent sovereigns and it's modeled to some degree on [00:10:16] Speaker 02: the international community of nations, and the notion that the United States would have more authority, even in the absence of the supremacy relationship that the federal government has with the states, over actions happening in the territory of other sovereign nation states, it doesn't seem to me actually as easy as your argument would suggest. [00:10:37] Speaker 01: I understand your concern, and that's why I think we've got to back up to the – this is just the article one question, and you have those other areas of things doing work. [00:10:44] Speaker 01: And so that's international laws doing that work on the sovereign-to-sovereign state – international framework. [00:10:51] Speaker 01: And there are the five bases of international laws that insist that there's one. [00:10:54] Speaker 01: And so, you know, in the way that the federalism is policing that relationship between the states and the federal government, international law is serving that function between different countries. [00:11:05] Speaker 01: And here, we're complying with international law. [00:11:08] Speaker 01: So I don't think that it's really that out there. [00:11:10] Speaker 01: And when you consider that the Article I power doesn't have to do all of the work, that there are other factors that also do work. [00:11:18] Speaker 01: I think I want to touch briefly on the treaty before you do. [00:11:22] Speaker 04: I'm just wondering why you don't rely on decisions of the Supreme Court of the United States rather than courts and appeals. [00:11:29] Speaker 04: You have the Japan case, the Supreme Court saying, [00:11:32] Speaker 04: scope of the foreign commerce clause is broader than the scope of the interstate commerce clause. [00:11:39] Speaker 04: And that was what the founders intended. [00:11:42] Speaker 04: That's a quote from that case. [00:11:44] Speaker 04: It seems to do more work than just making an argument about what a bunch of circuits have said. [00:11:48] Speaker 01: Yes, and we cite Japan Line, and there are only two Supreme Court cases that have touched on the Foreign Commerce Clause. [00:11:55] Speaker 01: And the reason we talk about the circuits is that those courts have considered this particular statute. [00:11:59] Speaker 01: So I think in some ways that's helpful. [00:12:01] Speaker 01: But yes, in Japan Line, the Supreme Court says that the founders intended the Foreign Commerce Clause to be broader because there is no federalism concern in that area. [00:12:09] Speaker 01: We think that's right. [00:12:10] Speaker 01: We think that applies here as well. [00:12:12] Speaker 03: I'm troubled by the scope of your argument. [00:12:15] Speaker 03: So it seems to me you're saying that any economic activity engaged in by a U.S. [00:12:21] Speaker 03: citizen abroad falls within the ability of Congress to regulate it under the Foreign Commerce Clause. [00:12:29] Speaker 03: Is that what you're saying? [00:12:31] Speaker 03: A U.S. [00:12:32] Speaker 03: citizen in France buying a sandwich? [00:12:35] Speaker 03: Is that within the scope? [00:12:39] Speaker 03: that somebody engaged in economic activity affecting the sandwich market? [00:12:47] Speaker 03: That can't be the right answer. [00:12:49] Speaker 03: It just can't be. [00:12:50] Speaker 03: Instinctually, we're just going to say Congress of reach can't go that far. [00:12:55] Speaker 03: But I don't know what the limit is on your argument. [00:12:58] Speaker 01: So certainly, Congress could, and in some sense, as Congress has, put regulations on prohibiting, for example, the use of [00:13:07] Speaker 01: the U.S. [00:13:08] Speaker 01: financial system on any transaction, for example involving sanctioned countries. [00:13:13] Speaker 01: And by that logic, Congress could say, you may not use the financial system to engage in transactions of buying sandwiches in foreign countries, which is essentially the same prohibition. [00:13:25] Speaker 01: My point is just this idea that because the rule seems very broad, it must be wrong, would apply the same to having a jurisdictional hook, would apply the same to requiring the use of the financial system, would apply the same to many other things that are accepted. [00:13:44] Speaker 03: So the US tourist in France who buys a sandwich there, conceivably that activity could be regulated by Congress. [00:13:52] Speaker 01: Yes, I mean, in Black Mirror, the court said that the US citizen refusing to return to the United States, and thus taking inaction, is within Congress's power to regulate. [00:14:03] Speaker 01: So the sanctions upheld against Iran, against Sudan, the sanctions against Cuba, and the Helms-Burton Act, which essentially regulates the entire global system, preventing countries from all over the world from trading with Cuba. [00:14:18] Speaker 01: That is a huge regulation. [00:14:20] Speaker 01: And yet, no one questions that that's part of the commerce power. [00:14:24] Speaker 04: Well, the sandwich example seemed – you could make the same argument about Mr. Philburn or whatever his name was in – Wilburne. [00:14:31] Speaker 04: Philburn, yeah. [00:14:32] Speaker 04: Could Congress have regulated the eating of sandwiches? [00:14:38] Speaker 04: And the answer, I think, to that would have been no, unless Congress had a complete program [00:14:46] Speaker 04: of controlling sandwich eating around the entire US in interstate commerce as to which eating this particular sandwich might be relevant. [00:14:56] Speaker 04: The reason it worked in Wickard was because they did have a program with respect to wheat quotas. [00:15:02] Speaker 04: The reason that it worked in Raich is because there is a comprehensive program with respect to drug distribution. [00:15:10] Speaker 04: It's very hard to imagine what the program would be in the example of the sandwich eating. [00:15:15] Speaker 04: And therefore, unlikely that would be constitutional. [00:15:18] Speaker 04: So that horrible hypothetical is one I think you can probably give up on. [00:15:22] Speaker 01: Yes, Your Honor. [00:15:23] Speaker 01: I was assuming that there would be a universalized prohibition. [00:15:26] Speaker 01: And I think it's highly unlikely Congress would enact that law. [00:15:30] Speaker 01: But were Congress to prohibit sandwiches in the same way that it prohibits marijuana? [00:15:36] Speaker 01: Sure, it'd be just like race. [00:15:38] Speaker 01: But it would have to be that kind of comprehensive regulation. [00:15:41] Speaker 01: And here we have a comprehensive regulation targeting [00:15:44] Speaker 01: both child sexual abuse and the production of child pornography. [00:15:48] Speaker 01: You want to talk about the treaty power? [00:15:50] Speaker 01: Yeah. [00:15:51] Speaker 04: It's the other half of your argument. [00:15:52] Speaker 04: We're over time. [00:15:54] Speaker 01: The treaty provides an independent basis for reversing the district court. [00:16:01] Speaker 01: This treaty, the Optional Protocol, is a treaty ratified on advice and consent of the Senate. [00:16:06] Speaker 01: And it targets the production of child pornography very clearly. [00:16:10] Speaker 01: That doesn't have any commercial definition to it. [00:16:14] Speaker 01: that that definition tracks very neatly onto the definition in F3. [00:16:18] Speaker 01: The resides prong of 2423C also tracks very neatly onto the part in Article IV of the treaty that talks about targeting your own nationals abroad. [00:16:30] Speaker 01: And so those pieces, I think, flow directly from the treaty and are neatly within. [00:16:37] Speaker 04: That includes the conduct with the child unrelated to the pornography. [00:16:42] Speaker 01: I think that's the third aspect, and that's a more difficult question because it's not quite as direct. [00:16:48] Speaker 01: There you have the one-stepper move from sex tourism. [00:16:53] Speaker 01: The treaty is talking about the sale of children and child prostitution, which in the preamble it says sex tourism is an integral part of feeding both of those things. [00:17:02] Speaker 01: And then we're back to this question about whether taking the resides away from the travel to kind of solve that fuzzy line problem. [00:17:12] Speaker 01: or in the cases where remuneration or any other consideration, the treaty says, can be difficult to prove, we're going to kind of make a prophylactic rule that plugs in the gaps, that fills the loopholes. [00:17:25] Speaker 03: Isn't there language in the preamble to the protocol that suggests it's much broader than just sexual explication? [00:17:34] Speaker 03: There's language of irresponsible adult sexual behavior as a prophylactic to this. [00:17:39] Speaker 03: So isn't your argument there stronger than you're suggesting? [00:17:42] Speaker 01: It could be. [00:17:43] Speaker 01: The preamble gives you an idea of what is rationally related to implementing the articles of the treaty. [00:17:49] Speaker 01: And there, it's talking about, yes, it's talking about sex tourism, it's talking about the exploitation of children in all its forms, and the need to take a holistic approach. [00:17:58] Speaker 01: So we're taking that holistic approach that is the idea of saying we're not going to turn our prohibition on the need to prove beyond a reasonable doubt a quid pro quo exchange of money. [00:18:09] Speaker 01: to know that the exploitation of every child fuels the market for sex tourism, for child prostitution, for the sale of children and child trafficking. [00:18:18] Speaker 03: If we disagreed with your argument on the Foreign Commerce Clause, does Congress have the power to enact this statute to go beyond its enumerated powers in the treaty? [00:18:32] Speaker 01: Yes, Your Honor. [00:18:32] Speaker 01: Missouri v. Holland says yes. [00:18:34] Speaker 01: And that's still the law. [00:18:37] Speaker 01: In bond, there were three justices who expressed some concern with that view. [00:18:42] Speaker 04: Were there three or only two? [00:18:43] Speaker 04: I thought Justice Alito only joined part one of the dissent. [00:18:50] Speaker 01: Yeah, well, I don't remember exactly. [00:18:55] Speaker 01: But whether it's three or two, it's not five. [00:19:00] Speaker 04: Good point. [00:19:02] Speaker 01: And this court obviously is bound to follow the laws that exist, which is Holland. [00:19:06] Speaker 01: And also, if you take that view that it's, I'm going to stop there before I get myself into trouble. [00:19:16] Speaker 02: I was going to ask you along those lines, it seems possible that your strongest argument combines your two arguments. [00:19:28] Speaker 02: that you have a comprehensive scheme under the treaty, and that whatever one thinks about the separate opinions in bond and the reasoning, and whether, in fact, Missouri versus Holland doesn't articulate all the relevant limitations, at least in this case, you have a treaty, you have, to my sovereignty concerns about other nations, you have countries coming together. [00:19:53] Speaker 02: when the treaty comes back to the United States and Congress is asked to implement it, at least in that kind of context, Congress has the full scope of the foreign commerce power, as you describe it. [00:20:08] Speaker 01: Yeah, I think that's absolutely a reasonable way to look at it. [00:20:10] Speaker 01: To put together the power to regulate commerce in a comprehensive way, that this treaty asks for a holistic approach to eradicating these problems, [00:20:19] Speaker 01: and that Congress generally has under Curtis Wright this broad foreign affairs power to speak with one voice for the nation. [00:20:26] Speaker 01: You also have in the legislative history of the Protect Act, other countries coming to the United States asking for their help in solving this problem. [00:20:33] Speaker 01: So this situation in particular. [00:20:36] Speaker 02: Is it other countries or is it only the United Nations that came and said, look, you still haven't fully addressed this? [00:20:43] Speaker 02: Where's Vietnam in this? [00:20:44] Speaker 01: Do you have anything in the record on that? [00:20:47] Speaker 01: Not Vietnam in particular, but we have the United Nations through these reports, the 2010, 2012, 2016 reports, and the dialogue that's going on there. [00:20:56] Speaker 01: And then we have in the 2002 House report for the Protect Act, for the predecessor to the Protect Act, where there – the report talks about other countries have asked the United States to help crack down on sex tourism, [00:21:15] Speaker 01: that Americans are a large part of the problem going abroad driving this market. [00:21:19] Speaker 01: And it doesn't specify which other countries, though we know that Southeast Asia is a target region for this type of behavior. [00:21:29] Speaker 04: So interestingly enough, I was thinking the same question that Judge Pillard is asking. [00:21:36] Speaker 04: There's a Supreme Court case, United States versus Lara, which is about the Indian Commerce Clause. [00:21:43] Speaker 04: and it rests on both the treaty power with the Indians and the Indian Commerce Clause for the authority of the United States federal government to enact statutes that apply wholly within Indian country. [00:22:01] Speaker 04: What would you say about that kind of analysis? [00:22:05] Speaker 01: Again, I think that any time [00:22:08] Speaker 01: It's our position that either stands alone. [00:22:10] Speaker 01: But certainly, any time you put the powers together... We'd like to win on any ground you can. [00:22:13] Speaker 01: I understand that. [00:22:14] Speaker 01: But, you know, we also like to win by a lot. [00:22:16] Speaker 04: Mr. Cramer would like to win on any ground he could win, so that doesn't sound about it. [00:22:19] Speaker 01: But any time you're putting the powers together, I do think that they bolster each other. [00:22:23] Speaker 01: That you are getting that... You know, if the question is, is this something... At bottom, right? [00:22:28] Speaker 01: If the question is, is this something that the founders intended the national government to be able to address? [00:22:33] Speaker 01: then anytime you can draw the powers together and see that they're working in concert, you have a stronger answer to that question, which is that this is the national government speaking with one voice to effectuate a treaty that it's negotiated under international law with other nations to respect everyone's sovereignty and targeting a problem that is fundamentally economic. [00:22:59] Speaker 02: unrelated question about the count. [00:23:01] Speaker 02: There's just one count? [00:23:04] Speaker 01: There is. [00:23:04] Speaker 02: So what would be the implications if we only reached one of your boxes, one of the two statutory grounds? [00:23:14] Speaker 01: We'd ask the court to reach at least one rationale for each F1 and F3 conduct so that we know what to proceed on at trial. [00:23:23] Speaker 02: But functionally, why is it, I guess I'm asking, why is it just one count? [00:23:28] Speaker 02: I'm more familiar with seeing two separate counts on something like that. [00:23:33] Speaker 01: There's underdeveloped law on what the unit of prosecution is. [00:23:37] Speaker 01: Under the resides, we've only had a couple of these cases under resides and under the travel prong. [00:23:43] Speaker 01: We've long conceived of the unit of prosecution being the act of travel, though in some cases, like the Durham case, it was prosecuted as the unit of prosecution is the victim. [00:23:56] Speaker 01: So there's just some disagreement. [00:23:59] Speaker 01: Obviously, prosecuting it as one count is actually favorable to the defendant because it reduces the statutory maximum. [00:24:05] Speaker 01: He hasn't raised the duplicity challenge. [00:24:07] Speaker 01: in the district. [00:24:08] Speaker 04: Is one count with two methods as to which the jury would be asked to say which of the two or both in a jury instruction? [00:24:21] Speaker 01: Or verdict form. [00:24:22] Speaker 01: Yes, it's certainly possible. [00:24:25] Speaker 04: Can I ask, did you concede that there's no commercial aspect here? [00:24:36] Speaker 04: The defense seems to say that. [00:24:38] Speaker 04: Then I read something in your reply brief saying that this was potentially commercial because it was a trade of teaching for – enticed a kid to come to the apartment. [00:24:53] Speaker 04: What's the government's position on that? [00:24:55] Speaker 04: You have that in the complaint, right? [00:24:57] Speaker 04: That is in the complaint that he got there. [00:25:01] Speaker 01: Yes. [00:25:02] Speaker 01: Yes, yes. [00:25:03] Speaker 01: So now we're talking about this is just. [00:25:05] Speaker 04: I know. [00:25:06] Speaker 04: It's on a different subject. [00:25:07] Speaker 01: No, no. [00:25:07] Speaker 01: I just want to be clear. [00:25:08] Speaker 01: The F1 conduct only involves the teaching. [00:25:12] Speaker 01: And the defendant used his commercial position as a teacher to lure the child to his apartment is our position. [00:25:19] Speaker 01: So that's the facts of this case. [00:25:22] Speaker 01: The statute doesn't require [00:25:24] Speaker 01: It's not an element of the statute, so it doesn't require that proof at trial, beyond a reasonable doubt, but it is present on the facts of this case. [00:25:33] Speaker 04: And you say, here the government alleges that Park's presence in Vietnam on a business visa involved commercial activity, teaching that he used as a pretext to lure minor children to his home. [00:25:43] Speaker 04: So you're not arguing this with respect to the constitutional as applied theory as purely a non-commercial case. [00:25:53] Speaker 01: That's right. [00:25:54] Speaker 04: This is even as to that problem. [00:25:56] Speaker 01: That's right. [00:25:57] Speaker 01: There's a difference. [00:25:58] Speaker 01: We continue to think that the conduct in, for example, the Reed case of the incest is related, because I think that the facts of that case show the defendant both molested his own daughter and engaged in commercial child prostitution, where he would patronize a child prostitute, conduct to which he's pleaded guilty in another court. [00:26:17] Speaker 01: So these things are related. [00:26:19] Speaker 01: But if the court were to draw a line between [00:26:22] Speaker 01: incest in Mr. Park's conduct, there's still a difference there, because this conduct did involve that commercial lure. [00:26:31] Speaker 02: But you did not charge in the alternative under, because there's not a... We don't have evidence of a quid pro quo, which is what FG requires. [00:26:43] Speaker 02: So the government chose not to put itself in a position where it would have to prove that, but what would the [00:26:50] Speaker 02: what would the count be, if it were, because the commerce is typically the travel, right, in the F1 type situation, it would be, or it wouldn't be F1, in the situation where you are substituting the non-commercial, residing and doing the conduct. [00:27:08] Speaker 01: I'm just trying to think of, I mean, there's the constitutional question, which is commercial, non-commercial, but then there's the statutory question, commercial, non-commercial. [00:27:16] Speaker 01: So the statute C, 2423C, [00:27:18] Speaker 01: permits charging under one of six theories, either, and this is another matrix, either travel or resides across F1, F2, F3. [00:27:30] Speaker 01: Anytime you have the travel with any of that conduct, that's travel in foreign commerce. [00:27:35] Speaker 01: When you're talking about the resides, the F2 conduct is a commercial sex act, which is a quid pro quo trade of something of value for the sex act. [00:27:45] Speaker 01: F3 is the production of child pornography, the production of a commodity, which is part of a market. [00:27:49] Speaker 01: F1 is – so that resides F1, which is one of the two things we have here, is admittedly the least commercial of the six things. [00:27:57] Speaker 01: Right. [00:27:58] Speaker 01: And you didn't charge an alternative F2. [00:28:00] Speaker 01: That's sort of – That's correct, Your Honor. [00:28:02] Speaker 01: We didn't, because we can't prove beyond a reasonable doubt that there was a quid pro quo exchange in this case, which is – and that's part of the idea that you look at that B to C in the Protect Act, where Congress says there are [00:28:15] Speaker 01: Problems of proof approving the intent. [00:28:17] Speaker 01: So we're going to take out the intent requirement to make it easier to eradicate this conduct. [00:28:22] Speaker 01: But then, you know, you're looking at that commercial to non commercial the problems of proof on proving the quid pro quo, especially where the child is really the one getting the money. [00:28:32] Speaker 01: that's very difficult to prove. [00:28:35] Speaker 01: So even when it is commercial, the child often doesn't know. [00:28:38] Speaker 03: Where does the idea that he lured them? [00:28:40] Speaker 03: That's an explosive word. [00:28:43] Speaker 03: Where did that come from, that he lured them to his apartment? [00:28:48] Speaker 01: Well, two things. [00:28:49] Speaker 01: I think that's our word, and I think that's something that if that became an element of the offense, I would welcome the opportunity to prove it because the jury could infer [00:29:01] Speaker 01: from his long history of child predation and the fact that he's advertising to teach English to children at his apartment that he did it for this purpose. [00:29:14] Speaker 01: That he's advertising the teaching in order to get children into his apartment away from their parents in a vulnerable situation, as child predators often do. [00:29:22] Speaker 01: Well, and business people. [00:29:24] Speaker 01: I mean, he advertises to teach all the obvious markets. [00:29:28] Speaker 01: Yeah, we don't have any evidence that he's teaching adults and not children. [00:29:31] Speaker 02: No, but I thought the record had some specifics on who he was advertising to teach to and included business people. [00:29:39] Speaker 01: Yeah, so he's passing out his card. [00:29:43] Speaker 01: But the idea that he's using that as a way to get children into his apartment [00:29:50] Speaker 01: into a private place away from their parents where they're vulnerable, especially if you look at the – his history, it's not a leap to say that he's doing this on purpose. [00:30:02] Speaker 04: Well, you have the complaint in the case listing the elements of probable cause and listing what was told to the agent by the victim's mother. [00:30:19] Speaker 04: He provided victim with his address and invited victim to his apartment for additional English language instruction. [00:30:26] Speaker 04: And then, approximately two weeks after their first encounter, they had the sexual misconduct. [00:30:35] Speaker 04: I think you would just put it to the jury as circumstantial evidence to decide whether the two were connected. [00:30:41] Speaker 01: Yes. [00:30:42] Speaker 01: And again, it's not an element of the offense. [00:30:46] Speaker 01: It's more an atmospheric idea of if he – his conduct is within Congress's scope of commercial power. [00:31:14] Speaker 05: Good morning, Your Honors. [00:31:14] Speaker 05: May it please the Court, A.J. [00:31:16] Speaker 05: Kramer on behalf of Mr. Park. [00:31:18] Speaker 05: Let me answer one question first. [00:31:20] Speaker 05: The government in a bill of particulars said that none of the alleged conduct involves a commercial transaction. [00:31:27] Speaker 05: That's at page 25 of the... That's why I was wondering about the two seemingly inconsistent positions. [00:31:34] Speaker 05: So, well, they at least told the district court and the case proceeded in the district court on that. [00:31:38] Speaker 04: Was that about the content of the charge or was it necessarily about the [00:31:44] Speaker 04: constitutional as applied question. [00:31:46] Speaker 05: That was a question about what is exactly being charged here because it just contained the statutory language. [00:31:52] Speaker 04: I guess that's consistent with what she's saying that the charge isn't a two charge it's one or three charge but as to the question of constitutional as applied may be a different question. [00:32:06] Speaker 04: Well the district court proceeded on the... I know that the district court did but I just don't know whether that's [00:32:11] Speaker 05: Well, I think it's correct based on what they told the district court they're charging in this case. [00:32:17] Speaker 04: It's correct as a charge. [00:32:18] Speaker 04: The question is whether you consider the statute as applied in particular circumstances, you look only at the charge. [00:32:26] Speaker 04: I don't know what the answer to that is. [00:32:27] Speaker 05: Well, I think you have to go with the circumstances that they say they're going to prove at trial when you deal with a motion to dismiss like this, accepting those facts. [00:32:36] Speaker 04: It's the information they're going to prove at trial with respect to the charge, but [00:32:41] Speaker 04: the background of how the person got to the apartment can be proved even if it's not the charge. [00:32:49] Speaker 05: But the back, sure they can put in how the person got there, but that's, but when they've said the charge is [00:32:57] Speaker 05: not a commercial transaction, then if they presented some kind of, tried to prove that, that would be a variance from what they said in the bill of particulars with whatever that, but in any event, I don't think it's, but I want to start off, I guess, with, I think the district court, by the way, got it exactly right in its opinion. [00:33:16] Speaker 05: The notion that the foreign commerce clause is broader than the interstate commerce clause in, [00:33:24] Speaker 05: The Supreme Court's opinion in Gibbons versus Ogden, they talked about the Foreign Commerce Clause and said, [00:33:33] Speaker 05: no sort of trade can be carried on between this country and any other to which this power does not extend. [00:33:39] Speaker 05: And they talked about the Foreign Commerce Clause. [00:33:42] Speaker 05: And they then said, if this meaning of the word about commerce is in its application to foreign nations, it must carry the same meaning throughout the sentence as to interstate commerce and commerce with Indian tribes as well. [00:33:57] Speaker 05: in Gibbons versus Ogden, they said the word commerce has the same meaning with and among. [00:34:03] Speaker 05: And they said, they went on to say that there's really no difference between the word with and among, like the government tries to make out, because they said commerce among the states must have necessity to commerce with the states. [00:34:16] Speaker 05: So I know there's a lot of water. [00:34:17] Speaker 03: A lot of water has passed under the bridge since the great Chief Justice wrote that opinion. [00:34:23] Speaker 03: And we have race to deal with. [00:34:27] Speaker 03: to do with which take some would argue a very different approach to the commerce clause language. [00:34:34] Speaker 05: I think they take a very different approach to the scope of the interstate commerce clause. [00:34:38] Speaker 05: What they don't say is that the foreign commerce clause is broader. [00:34:43] Speaker 05: That comes from one line in that Japan case. [00:34:46] Speaker 04: Yes, that is right. [00:34:47] Speaker 04: That's one line in that Japan case which happens to be a [00:34:50] Speaker 05: decision of the Supreme Court of the United States. [00:34:52] Speaker 05: It has never been subsequently cited by the Supreme Court, I don't think, for that proposition. [00:34:57] Speaker 04: Well, has Gibbons versus Ogden ever been cited for the proposition that the Foreign Commerce Clause is the same as the Interstate Commerce Clause? [00:35:06] Speaker 04: I think it was for a period of time. [00:35:10] Speaker 04: Can you name another case? [00:35:11] Speaker 04: No, not off the top of my head. [00:35:13] Speaker 04: And we also have the Supreme Court of the whole United States saying that the Indian Commerce Clause is broader than the [00:35:20] Speaker 04: interstate commerce clause and is plenary. [00:35:23] Speaker 00: Yes. [00:35:23] Speaker 04: So obviously the court thinks since Ogden, and it's not clear to me what they, to be honest the part of Ogden that you cited is from the syllabus, actually not from the Justice Marshall's opinion, which may or may not be correct, but it's a little complicated and it relies on the word among, but we have much stronger statements by the court in Cotton with respect to the [00:35:49] Speaker 04: Indian Commerce Clause and with respect in Japan with respect to the Foreign Commerce Clause. [00:35:55] Speaker 04: And by the way, we have the problem that Indian and foreign both use with and interstate uses among, which would be a reason why you would treat them different. [00:36:06] Speaker 04: and another reason being federalism. [00:36:09] Speaker 04: So there seems like there's a reasonable argument here. [00:36:13] Speaker 05: I understand. [00:36:14] Speaker 05: Well, if there is, the Supreme Court has never acknowledged it as to what it's composed of or what it means. [00:36:21] Speaker 05: Let me put it that way. [00:36:23] Speaker 05: Is that what I would call a throwaway line in the Japan lines case? [00:36:27] Speaker 05: Or a throwaway line in Ogden, which was not about the Foreign Commerce Clause. [00:36:32] Speaker 05: It was not. [00:36:33] Speaker 05: They have, however, in the Raich case, if that's the way you say it, I'm not sure, the marijuana case, they did say that they used the language, the foreign and interstate commerce clause essentially interchanged with it in the Raich case. [00:36:49] Speaker 05: They said that this was analyzed under the language of the foreign and interstate commerce clauses. [00:37:00] Speaker 05: They talked about the issue in the case was the Article I, Section 8, for carrying its authority to regulate commerce with foreign nations and among the several states. [00:37:10] Speaker 05: They seemingly used that to mean the same thing. [00:37:12] Speaker 05: They didn't refer to the Indian tribe commerce in that. [00:37:17] Speaker 04: So then you would give up your argument that, in fact, foreign is narrower than interstate. [00:37:23] Speaker 05: No, I think it may well be now. [00:37:25] Speaker 04: It's certainly not broader. [00:37:26] Speaker 04: You just told me that they said it was the same. [00:37:29] Speaker 05: Well, what I think I said was that it's not broader. [00:37:32] Speaker 04: You said that, but your citation, which I don't recall from Ray, she didn't say that. [00:37:37] Speaker 05: No, no, no. [00:37:39] Speaker 05: I'm not saying that the Foreign Commerce Clause is necessarily narrower. [00:37:44] Speaker 05: What I'm saying is it's not broader, as the government argued, and as you seem to indicate from the quote from the Japan lines case. [00:37:52] Speaker 05: But I think that's not correct. [00:37:55] Speaker 05: Or at least the Supreme Court has never reaffirmed that, let me put it that way. [00:37:59] Speaker 05: But in any event, I think that this [00:38:02] Speaker 05: No court has the residing, no court has addressed the residing prong and held this, that that can be enough of a connexus to the United States or to the Foreign Commerce Clause to uphold this statute. [00:38:19] Speaker 05: It is the only ones that have upheld it [00:38:21] Speaker 05: have done with the travel in foreign commerce, in connection with the travel. [00:38:26] Speaker 05: The government talks about a murky line between travel and residence, but that's just a red herring because in this particular case, he's charged with residing there. [00:38:36] Speaker 05: There's no question he permanently resided there. [00:38:39] Speaker 05: and lived there, and the Foreign Commerce Clause does not give the United States plenary police power, which is essentially the government's argument over this. [00:38:48] Speaker 05: Judge Griffith, your analysis about the sandwich, in the Al Maliki case, the Sixth Circuit noted that the government had no response to the fact that under the government's theory, they could outlaw jaywalking in foreign countries. [00:39:02] Speaker 05: Because that could have an economic effect on the United States. [00:39:07] Speaker 05: If the United States citizens are hit while jaywalking, that causes insurance costs and medical costs, and it would be pretty simple. [00:39:17] Speaker 05: The government said that they had no argument to the fact that Al Maliki to the jaywalking hypothetical. [00:39:24] Speaker 05: So there is no [00:39:27] Speaker 05: answer to the fact that this is an unlimited extension of so-called jurisdiction of the United States over any police, over police power all over the world, as the Al Maliki case pointed out. [00:39:42] Speaker 05: So it just doesn't, under the Foreign Commerce Clause, it doesn't matter whether it's an American citizen or not. [00:39:50] Speaker 05: I don't think under the government's argument it does. [00:39:52] Speaker 05: There's no reason it has to be an American citizen under their argument that it has to. [00:39:59] Speaker 05: Well, the statute requires it to be an American citizen. [00:40:00] Speaker 05: The statute? [00:40:01] Speaker 05: Oh, I'm sorry. [00:40:01] Speaker 05: I thought you meant theoretically. [00:40:03] Speaker 05: Well, as to this sandwich and all these other hypotheticals that... The statute requires an American citizen, but there's no reason it has to be that either. [00:40:12] Speaker 04: Under the government's argument... Do you think that if an American citizen is killed abroad, [00:40:19] Speaker 04: by a foreign terrorist organization. [00:40:23] Speaker 04: Is that, we couldn't make that illegal? [00:40:27] Speaker 04: And if we caught the person bringing them back here? [00:40:30] Speaker 05: It depends. [00:40:30] Speaker 05: That may be under a different constitutional authority, but I don't think under the Foreign Commerce Clause, no. [00:40:38] Speaker 05: So which one? [00:40:41] Speaker 05: Possibly, well, it may be a crime against humanity. [00:40:48] Speaker 05: There's things like piracy. [00:40:50] Speaker 04: Is there ever a crime against humanity provision of the Constitution? [00:40:54] Speaker 05: No, but there are crimes against mankind. [00:40:57] Speaker 05: Really? [00:40:57] Speaker 05: In the Constitution? [00:40:58] Speaker 05: No, well, there are things in the cases discussed, which are against the law of all nations, I guess. [00:41:07] Speaker 05: is the wording, but I don't think it would be permissible under the Foreign Commerce Clause. [00:41:13] Speaker 05: Let me put it that way, which is all that's at issue here. [00:41:15] Speaker 05: Hostage-taking? [00:41:20] Speaker 05: Possibly it could have enough. [00:41:22] Speaker 05: I mean, I guess you could run that out. [00:41:24] Speaker 04: Non-commercial hostage-taking. [00:41:26] Speaker 04: No demand is made for ransom. [00:41:30] Speaker 05: If the, of an American citizen who resided in a foreign country, I would say no. [00:41:35] Speaker 05: Of an American citizen who was on tourism or travel, then you might. [00:41:40] Speaker 04: So American citizens who are residing in Israel for a year and are killed either in a terrorist attack or a hostage taking, of which we have a lot of those cases here, those are all in constitutional statutes? [00:41:55] Speaker 05: I think they're, [00:41:58] Speaker 05: Well, I'm only addressing the Foreign Commerce Clause. [00:42:02] Speaker 04: Well, and I'm offering you an alternative. [00:42:04] Speaker 04: Tell me what the alternative is. [00:42:05] Speaker 05: Well, I don't know what the alternative would be. [00:42:07] Speaker 05: I'm saying I don't know what they've been upheld under or not under the Foreign Commerce Clause. [00:42:13] Speaker 05: But in any event, that's far different than what we have here. [00:42:18] Speaker 04: So with sandwiches, if we're going to have horribles, we should have the horribles. [00:42:22] Speaker 05: I don't see the difference with sandwiches in the sense that someone could be [00:42:28] Speaker 05: poisoned by, there might be a judgment that French sandwiches are inferior. [00:42:36] Speaker 05: The problem is the government's, there is no end to the government's argument. [00:42:41] Speaker 05: As they said in Al-Maliki, the government could outlaw jaywalking in a foreign country under this theory. [00:42:50] Speaker 05: The district court got it right. [00:42:53] Speaker 05: Judge Hartz's dissent in the Durham case, the most recent case to come out, I think is also right on point. [00:43:01] Speaker 05: That case upholds it under the channels of commerce, something the government hasn't argued in this particular case. [00:43:09] Speaker 05: But that was the travel, in any event, the travel, not the residing. [00:43:17] Speaker 05: treaty power, I would say several things. [00:43:20] Speaker 05: First of all, this statute, there's no indication or expression that it was passed to implement the treaty. [00:43:28] Speaker 05: Every other case, the Bond case being a prime example, that statute was actually called the implementation of the Chemical Weapons Treaty. [00:43:35] Speaker 04: You would agree that Supreme Court has said expressly and recently that Congress doesn't have to say the basis for its, the constitutional basis for its legislation. [00:43:48] Speaker 04: And all we have to do is find one that's rationally related, right? [00:43:52] Speaker 04: That's what the Court said in NFIB, [00:43:55] Speaker 04: That's what the court said in the Beach case. [00:43:58] Speaker 04: Those aren't old cases that haven't been repeated. [00:44:01] Speaker 04: They've been repeated several times. [00:44:03] Speaker 05: It's not at all clear to me that that applies to the treaty. [00:44:06] Speaker 05: They've never said that about the treaty power. [00:44:08] Speaker 05: They said the constitutional basis. [00:44:12] Speaker 04: Why would the treaty power be different than the tax power? [00:44:17] Speaker 05: Because if you're implementing it to implement a treaty you have to pass something with that treaty in mind Otherwise, it's not implementing the treaty [00:44:30] Speaker 05: This statute was passed long after this treaty and no indication that Congress had this treaty in mind. [00:44:37] Speaker 05: As Judge, no court has actually upheld this as under the treaty. [00:44:44] Speaker 03: Mr. Kramer, what do you think is evidence that [00:44:49] Speaker 03: Congress had something in mind. [00:44:51] Speaker 03: I mean, the easy case is when the name of the implementing statute tracks the treaty, but you're not requiring that, are you? [00:45:00] Speaker 05: Well, every case where there has been a discussion of a statute implementing a treaty, usually the statute is actually called a statute to implement the treaty. [00:45:11] Speaker 05: If there was an exception, and there's no cases cited by the government, it might be within a few weeks of the treaty or a couple of months. [00:45:20] Speaker 03: So you're saying that if Congress is acting under the treaty power, it has to [00:45:26] Speaker 03: expressly invoke the treaty? [00:45:28] Speaker 05: I think this answer is yes or it could pass it later and say this is to implement the treaty. [00:45:42] Speaker 05: express invocation of that, or fairly close on the heels. [00:45:47] Speaker 05: But I would take Judge Hartz's quote from Durham and say, Congress never mentioned in the text or the legislative histories of this statute, even if one were to do so, the government's reliance would be misplaced. [00:46:04] Speaker 05: The optional protocol covers only commercial sex offenses against children. [00:46:09] Speaker 05: It says nothing about the effects of non-commercial sex offenses on foreign commerce. [00:46:15] Speaker 05: The optional protocol calls on states to create and enforce laws that prohibit the exploitation of children for commercial gain. [00:46:23] Speaker 05: So I don't see how this statute implements the treaty in any way in any event. [00:46:28] Speaker 05: I mean, that's the only [00:46:30] Speaker 05: court that has, Judge Hartz is the only judge that has addressed this. [00:46:33] Speaker 05: The government has either in most cases not claimed reliance on the treaty, or as in Durham they claimed reliance on the treaty, but the majority [00:46:42] Speaker 05: decided it on a different ground, so it didn't address the treaty. [00:46:46] Speaker 05: But truly, if there was reliance on the treaty, the treaty contains an incredibly broad statement of various things about, it requires, they say, believing that the elimination of the sale of children [00:47:00] Speaker 05: and a holistic approach should be adopted in addressing the contributing factors, including undevelopment. [00:47:08] Speaker 05: I think, Your Honor, Judge Griffiths said irresponsible adult sexual behavior, poverty, economic disparities. [00:47:14] Speaker 05: Truly, in implementing this treaty, Congress could alter the complete nature of the United States, I think, by [00:47:23] Speaker 05: talking about dysfunctioning families, lack of education, urban to rural migration. [00:47:30] Speaker 05: I mean, it's an unlimited basket, it seems to me, of legislation that could be adopted under the government's theory under this treaty. [00:47:38] Speaker 05: But the treaty was only to [00:47:43] Speaker 05: about commercial sex offenses against children and prohibit the exploitation of children for commercial gain. [00:47:49] Speaker 05: And that's not what this statute does with respect to the resides clause as applied to this particular case. [00:47:57] Speaker 05: This is a non-commercial transaction. [00:48:02] Speaker 04: And what about the cases that say with respect to the treaty power like Surrey v. Holland and others that issues with a necessary and proper clause? [00:48:11] Speaker 04: It just has to be rationally related to the goals of the treaty. [00:48:17] Speaker 04: It doesn't have to be expressly what's in the treaty. [00:48:19] Speaker 04: And then that brings us back to the argument the government makes that this kind of activity is certainly is rationally related, unless you think it's not rationally related. [00:48:29] Speaker 05: Well, it's not, according to Judge Hartz, it's not rationally related. [00:48:34] Speaker 04: I appreciate that, but as you know, Judge Hartz does not [00:48:37] Speaker 04: Not only is he not precedent here, he's not precedent even in his own circuit. [00:48:40] Speaker 05: Well, he was the only judge to address the treaty theory in that case. [00:48:46] Speaker 05: I think he's the only judge, the only circuit judge to have addressed it in the country. [00:48:52] Speaker 05: But I would say this, and by the way, in the Bond case, Judge Alito joined also in Justice Thomas's concurrence about the treaty. [00:49:01] Speaker 05: So now we have three. [00:49:02] Speaker 05: So there's three, yes. [00:49:04] Speaker 02: But on different grounds. [00:49:06] Speaker 05: Justice Thomas had a different theory on the treaty, right, than Justice Scalia, but it was still, Justice Alito agreed with Justice Thomas on his argument about the treaty, why it was not correct. [00:49:22] Speaker 05: So the treaty argument, I think, first of all, as I said, it doesn't address, as Judge Hart said, it doesn't address [00:49:34] Speaker 05: what this optional protocol says in any event. [00:49:38] Speaker 05: Congress gave no indication. [00:49:40] Speaker 05: And then you've now essentially, there's again, given what this optional protocol says, there would be no limit again to Congress's power. [00:49:50] Speaker 03: Maybe you said it, Mr. Kramer, but I didn't hear it. [00:49:52] Speaker 03: Why would there be a different requirement for the treaty power than there is for exercise of other powers? [00:50:00] Speaker 03: You're saying when it comes to treaty power, Congress has to make it [00:50:04] Speaker 03: clear that they're implementing it, either say expressly or that's what you said expressly. [00:50:10] Speaker 03: But as Chief Judge Garland pointed out, that's not required in exercises of other sources of authority. [00:50:17] Speaker 03: Why would it be different? [00:50:20] Speaker 03: You said that the cases show that Congress has given that sort of explanation, but why is that necessary, do you think? [00:50:28] Speaker 05: Well, I think you can't [00:50:31] Speaker 05: You can't just have a statute out there and then try to go pick a treaty somewhere to try to justify it. [00:50:37] Speaker 05: I think that would turn the legislative process upside down, frankly, and the constitutional process upside down. [00:50:43] Speaker 04: But you can take a statute and just go out and make up an argument about how marijuana control in one state will affect the interstate government. [00:50:53] Speaker 04: In fact, you can take a statute in which Congress has expressly said, we are not using our tax power. [00:50:59] Speaker 04: and yet say that it's upheld under the tax power. [00:51:04] Speaker 04: And just to be clear, what the Supreme Court said in that case, and fib, is the question of the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise. [00:51:21] Speaker 05: And that may well be why the dissent, well, the concurs in bond are correct about the treaty power, because the Constitution gives the president the power to make treaties with the concurrence of the Senate. [00:51:38] Speaker 05: And that may well be why... However persuasive. [00:51:44] Speaker 04: Even three justices are. [00:51:46] Speaker 04: They are, as Supreme Court has always told us, only three justices. [00:51:50] Speaker 04: And we have to go with the existing case law. [00:51:53] Speaker 04: But a treaty is not the Constitution. [00:51:55] Speaker 04: If we took your theory, then there would be nothing that could be done. [00:52:03] Speaker 04: That is, under one of these dissents, the treaty power actually does nothing. [00:52:09] Speaker 04: The only power that Congress has is to send diplomats to negotiate the treaty. [00:52:15] Speaker 04: That would be quite a change in Supreme Court law. [00:52:19] Speaker 04: Isn't that right? [00:52:20] Speaker 05: I'm not sure it would be a change in the sense that the Supreme Court's never really addressed the issue head on. [00:52:26] Speaker 02: I thought where you were going, Mr. Kramer, was that to the extent that Missouri versus Holland is the law, which it is, and the bond dissenters are not or separate concurrences are not the law, that the treaty power is different from other congressional powers in that [00:52:46] Speaker 02: it seems to authorize Congress to do things that would otherwise be beyond its Article I powers. [00:52:54] Speaker 02: And that given that special kind of expansive move under the treaty power, that there's a reason that is absent in Congress's other exercises of its enumerated powers to require that we be told when Congress thinks that's the font of power that it's relying on. [00:53:16] Speaker 05: I think that's exactly right. [00:53:18] Speaker 05: I think that you can't, it would allow the President and Congress to make treaties about essentially anything. [00:53:26] Speaker 05: and then enact laws to implement them that may be totally contrary to other constitutionally enumerated powers. [00:53:36] Speaker 05: I mean, I can just think of a, they could- Well, there you're going further. [00:53:40] Speaker 02: You're going to the concurring opinions. [00:53:42] Speaker 02: And I'm saying, assuming, under Missouri v. Holland, that Congress can be given powers by executive and senatorial treaty action that it doesn't have under Article I. [00:53:53] Speaker 02: When it does that, doesn't that itself create a reason that Congress would have to invert to the treaty in order to take advantage of that power in a way that it doesn't have to invert to the commerce or the taxing or the, you know, whatever other powers. [00:54:08] Speaker 02: So you don't even have to go there and ask us to follow the bond concurring opinions to prevail on that ground if in fact we were to [00:54:19] Speaker 02: agree with you that there's a special and different rule of power naming for Congress when it's acting under the treaty? [00:54:27] Speaker 05: No, I think that's right. [00:54:28] Speaker 05: I mean, I think when you're talking about this, because there's innumerable treaties covering innumerable topics, obviously. [00:54:36] Speaker 05: And when you're talking about Congress implementing them, it seems to me, whereas Congress is passing statutes that may be constitutional under an enumerated power, [00:54:48] Speaker 05: When you're talking about implementing a treaty, you have to have Congress say what treaty they're implementing, and in what way they're implementing it. [00:54:57] Speaker 05: Because otherwise, you can just find some paragraph in some treaty like this that says, including underdevelopment, poverty, economic disparities, inequitable socioeconomic structure, dysfunctioning families, lack of education. [00:55:14] Speaker 05: I mean, Congress could take [00:55:17] Speaker 05: all kinds of actions, and somebody could read this treaty and say, that implements this treaty. [00:55:24] Speaker 04: I don't understand the assumption that this isn't an enumerated power. [00:55:29] Speaker 04: The Necessary and Proper Clause is an enumerated power. [00:55:33] Speaker 04: And it gives Congress the authority, as was used in Comstock, to enact all laws necessary and proper to the powers of the United States, not just to the powers of the Congress. [00:55:46] Speaker 04: So it's not right to say that this is not an enumerated power and therefore that it's somehow different. [00:55:52] Speaker 05: Well, I think it's an enumerated power. [00:55:53] Speaker 05: The power being used here is the necessary and proper clause. [00:55:56] Speaker 05: But Comstock was not a treaty – Comstock was not implementing a treaty. [00:56:03] Speaker 04: No, I know, but it's a nice argument that we should treat the treaty power different than all the other powers. [00:56:11] Speaker 04: In the end, they all rely on the necessary and proper clauses. [00:56:15] Speaker 05: I'm not sure how nice it is. [00:56:18] Speaker 05: The necessary and proper clause, I think there is a qualitative difference when you're using the necessary and proper clause to implement a treaty as opposed to justify under an enumerated constitutional power. [00:56:32] Speaker 05: That there's a substantive difference there in what Congress has to do in that regard. [00:56:40] Speaker 05: And can't just hope that some treaty at some point [00:56:46] Speaker 05: justified that there's some mention in some treaty of something that would justify that would make it necessary and proper. [00:56:55] Speaker 05: I just don't think that the [00:56:57] Speaker 05: necessary and proper clause goes that far in the treaty. [00:57:01] Speaker 05: In any event, there is support for what the district court did in this case and other cases, and the district court's carefully considered opinion, again, dealing solely with the residing clause, should be affirmed. [00:57:19] Speaker 05: Any further questions? [00:57:19] Speaker 05: Thank you. [00:57:20] Speaker 04: Thank you, Mr. Kramer. [00:57:21] Speaker 04: Is there a time limit? [00:57:24] Speaker 04: We'll give you another two minutes, as is our practice. [00:57:27] Speaker 04: Why it's a practice, I don't know. [00:57:34] Speaker 04: Mr. Kramer usually gets the advantage of that practice. [00:57:39] Speaker 01: Just real quickly, I want to address Your Honor's point about the statutes where we're talking about killing U.S. [00:57:45] Speaker 01: nationals abroad. [00:57:46] Speaker 01: There are, as you know, a number of those. [00:57:49] Speaker 01: The one that perhaps goes the farthest is 1119, which is murder by one U.S. [00:57:54] Speaker 01: national against another U.S. [00:57:55] Speaker 01: national abroad. [00:57:56] Speaker 01: Two district courts have considered that statute under constitutionality concerns and held them both valid exercises of the commerce power. [00:58:04] Speaker 01: And if you look at the 1116, which is the more like terrorist protected person statute, the challenges under that statute don't come under the Article I issue. [00:58:14] Speaker 01: They come, and this goes back to that we were talking before about those other powers that are doing work, and they come under the due process challenge. [00:58:22] Speaker 01: They come under the extraterritoriality problem, [00:58:26] Speaker 01: And so we see that the Article I power doesn't have to do all of the work. [00:58:30] Speaker 01: Your Honor is exactly right about the necessary and proper power being the enumerated power that's at use when we look at the treaty. [00:58:38] Speaker 01: And again, I want to say that even on the treaty, Congress can't just go out and make, or the president couldn't go sign the Suppressing Religious Freedoms Treaty and then have Congress implement that with a statute that outlaws the First Amendment. [00:58:53] Speaker 01: Because other parts of the Constitution can still trump [00:58:55] Speaker 01: the exercise of those Article 1 powers. [00:58:59] Speaker 01: So there are still other limits existing. [00:59:02] Speaker 01: You can't go out and make a treaty that eliminates the Fourth Amendment and now we can just search everybody all the time. [00:59:07] Speaker 01: That's not how it works. [00:59:10] Speaker 01: And Judge Pillard, to your question, I think even if we are talking about a factual [00:59:16] Speaker 01: Congress enacted this statute, we need some factual proof that Congress was relying on implementing the treaty. [00:59:23] Speaker 01: Here, you could see that from the record, you could infer that from the UN reports where the UN is criticizing the United States for not having a residing jurisdiction. [00:59:32] Speaker 01: And then – so I think it's rational to think the State Department responded to those reports, was telling Congress they existed, so you could find that in the report. [00:59:42] Speaker 04: Thank you. [00:59:44] Speaker 04: Thank you. [00:59:44] Speaker 01: We'll take them out of our seats.