United States v. Micky Rife

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0096p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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UNITED STATES OF AMERICA,
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Plaintiff-Appellee, │
> No. 20-5688
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v. │
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MICKY RIFE, │
Defendant-Appellant. │
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┘
Appeal from the United States District Court for the Eastern District of Kentucky at Frankfort.
Nos. 3:19-cr-00010-1; 3:20-cr-00002-1—Gregory F. Van Tatenhove, District Judge.
Argued: April 22, 2021
Decided and Filed: May 5, 2022
Before: KETHLEDGE, STRANCH, and BUSH, Circuit Judges.
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COUNSEL
ARGUED: James M. Inman, GREEN CHESNUT & HUGHES, PLLC, Lexington, Kentucky,
for Appellant. Sonja M. Ralston, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee. ON BRIEF: James M. Inman, GREEN CHESNUT &
HUGHES, PLLC, Lexington, Kentucky, for Appellant. Sonja M. Ralston, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., Charles P. Wisdom, Jr., UNITED STATES
ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee.
KETHLEDGE, J., delivered the opinion of the court in which BUSH, J., joined.
STRANCH, J. (pp. 14–30), delivered a separate opinion concurring in the judgment.
No. 20-5688 United States v. Rife Page 2
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OPINION
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KETHLEDGE, Circuit Judge. At issue in this case is whether Congress has plenary
power to regulate the conduct of American citizens after they travel overseas. Micky Rife, a
Kentucky-born U.S. citizen, travelled to Cambodia and, years later, sexually abused two girls.
After returning to Kentucky, he pled guilty to engaging in illicit sexual conduct abroad in
violation of 18 U.S.C. § 2423(c). Rife now argues that Congress lacked power to regulate the
conduct for which he was convicted. We agree with him that Congress’s power under the
Foreign Commerce Clause does not support his conviction. But we also conclude—based on
Supreme Court precedent alone—that § 2423(c) as applied here was within Congress’s power to
enact legislation implementing treaties. We therefore affirm his conviction.
I.
In September 2012, Rife moved from Kentucky to Phnom Penh, Cambodia. There, he
took a position as an elementary-school teacher, began a relationship with a Cambodian woman,
and adopted a young Cambodian girl. (One may suspect that these relationships were not what
they seemed, but the record here contains no information to that effect.) For the next six years,
Rife lived and worked exclusively in Cambodia, obtaining each year an “Extension of Stay”
temporary visa through his U.S. passport. Rife did not visit the United States during that period,
though he maintained a bank account and property in Kentucky.
In 2018, Cambodian authorities opened an investigation into allegations that Rife had
sexually assaulted his young female students. One girl reported that, on more than one occasion
when she was four or five years-old, Rife tossed her up into the air and touched her vagina
underneath her clothing; she also said he put his fingers inside her vagina, which hurt. A second
girl reported that, when she was seven or eight, Rife put his hand underneath her clothing and put
his fingers on her vagina while he was carrying her—and that “it happened many times.”
That December, based upon information received from Cambodian authorities, Rife’s
school terminated his employment. Four days later he voluntarily returned to Kentucky, where
No. 20-5688 United States v. Rife Page 3
federal agents soon interviewed him about his actions in Cambodia. Rife told them he had been
fired for “mishandling kids,” and eventually confessed to abusing two of his female students as
described above. The agents arrested him.
A federal grand jury soon indicted Rife on two counts (one for each victim) of illicit
sexual conduct in a foreign place, in violation of 18 U.S.C. § 2423(c). That statute punishes any
United States citizen or lawful permanent resident “who travels in foreign commerce or resides,
either temporarily or permanently, in a foreign country, and engages in any illicit sexual conduct
with another person.” Section 2423(f) in turn defines “illicit sexual conduct” to mean
noncommercial or commercial sex acts with a person under age 18, or the production of child
pornography. The government did not allege that Rife offered anything of value in connection
with his abuse of the two girls; hence the parties agree that his “illicit sexual conduct” was
noncommercial in nature. See 18 U.S.C. §§ 2423(f)(1), 2246(2)(D).
Rife moved to dismiss the indictment, arguing that Congress lacked constitutional
authority to punish him for noncommercial acts of sexual abuse that occurred in a foreign
country years after he had travelled there. The government countered that the application of
§ 2423(c) to Rife’s conduct was authorized by two powers granted to Congress under Article I:
first, the Foreign Commerce Clause; and second, the Necessary and Proper Clause, which among
other things empowers Congress to enact legislation to implement treaties—the relevant treaty
here being the “Optional Protocol to the United Nations Convention on the Rights of the Child
on the Sale of Children, Child Prostitution and Child Pornography,” which the United States
ratified in 2002. The district court denied Rife’s motion to dismiss, passing over the foreign
commerce issue but upholding § 2423(c) as a valid exercise of Congress’s power to implement
the Optional Protocol.
Rife then entered a conditional plea of guilty to one count of illicit sexual conduct,
18 U.S.C. § 2423(c), admitting the facts recited above but reserving the right to appeal the
court’s denial of his motion to dismiss. The court sentenced Rife to 252 months’ imprisonment,
to be followed by 20 years of supervised release. This appeal followed.
No. 20-5688 United States v. Rife Page 4
II.
Rife challenges the constitutionality of 18 U.S.C. § 2423(c) as applied to him. The
government, for its part, again argues that the Foreign Commerce Clause, as well as Congress’s
power to implement treaties under the Necessary and Proper Clause, authorized that application.
Both of the government’s arguments thus present constitutional questions; we address each in
turn.1
We review de novo whether § 2423(c) was a valid exercise of Congress’s power as
applied to Rife’s conduct. See United States v. Abdulmutallab, 739 F.3d 891, 905 (6th Cir.
2014).
A.
1.
The Constitution empowers Congress to “regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes[.]” U.S. Const. Art. I, § 8, cl. 3. The public
meaning of “commerce” at the time of the Constitution’s ratification was hardly obscure; indeed
Justice Thomas’s explication of it is largely uncontested. See United States v. Lopez, 514 U.S.
549, 586 (1995) (Thomas, J., concurring). We only briefly reiterate that explication here.
“Commerce,” at that time, meant “trade” or economic “intercourse,” which consisted of
1Theconcurring opinion suggests that we should decide this case simply by citing
Missouri v. Holland, 252 U.S. 416 (1920)—without otherwise addressing either of the
government’s constitutional arguments. As an initial matter, Holland itself might rest on shaky
ground, which is reason not to address these arguments piecemeal. See generally Bond v. United
States, 572 U.S. 844 (2014). And the concurring opinion’s concerns about “the limits to our
power under Article III” (Op. at 1) are misplaced: the government presents these arguments not
as an academic matter, but as grounds to uphold Rife’s conviction and 21-year prison sentence.
Every circuit court to address the constitutionality of § 2423(c) has addressed the question
whether that provision falls within Congress’s power under the Foreign Commerce Clause. That
we disagree with those courts is no reason for our court alone not to address the issue: to the
contrary, “debate among the courts of appeals” is what “sufficiently illuminates the questions
that come before [the Supreme Court] for review.” U.S. Bancorp Mortgage Co. v. Banner Mall
Partnership, 513 U.S. 18, 26 (1994) (emphasis in original). In United States v. Park, 938 F.3d
354 (D.C. Cir. 2019)—which the concurring opinion cites with approval—the D.C. Circuit
addressed both the constitutional questions presented here. We do the same.
No. 20-5688 United States v. Rife Page 5
“exchange of one thing for another,” “interchange,” or “traffick.” See, e.g., 1 S. Johnson,
A Dictionary of the English Language 422 (6th ed. 1785). In The Federalist Papers, John Jay,
Alexander Hamilton, and James Madison each used the words “commerce” and “trade”
interchangeably. See, e.g., The Federalist No. 7 (Hamilton) (discussing “competitions of
commerce” between States as a result of state “regulations of trade”). So did the Antifederalists.
See Lopez, 514 U.S. at 586 (Thomas, J., concurring). Federalists and Antifederalists alike also
distinguished “commerce” from manufacturing and agriculture. See, e.g., The Federalist No. 36
(Hamilton) (referring to “agriculture, commerce, manufactures”). Commerce itself, then, meant
trade and transportation thereof, as opposed to activities preceding those things. See Lopez,
514 U.S. at 585 (Thomas, J., concurring); United States v. Al-Maliki, 787 F.3d 784, 792 (6th Cir.
2015).
Consistent with that understanding—particularly the “transportation thereof” part—Chief
Justice Marshall later explained that the power to regulate commerce included the power to
regulate “navigation” and the streams (figuratively speaking) of foreign or interstate commerce,
all the way up to their headwaters in a particular State. Gibbons v. Ogden, 22 U.S. 1, 72, 74
(1824). And Justice Story added that Congress’s power to regulate commerce included the
power to punish acts that “interfere with, obstruct, or prevent the due exercise of the power to
regulate commerce and navigation with foreign nations, and among the states.” United States v.
Coombs, 37 U.S. 72, 78 (1838).
None of this history is controversial. Indeed, two of the “three broad categories of
activity that Congress may regulate under its commerce power,” Lopez, 514 U.S. at 558(majority opinion), roughly track this historical understanding. In Lopez the Court wrote about
those “broad categories” with respect to interstate commerce in particular. “First, Congress may
regulate the use of the channels of interstate commerce.” Id. “Second, Congress is empowered
to regulate and protect the instrumentalities of interstate commerce, or persons or things in
interstate commerce, even though the threat may come only from intrastate activities.” Id. The
Court’s departure from the original meaning of “commerce” came in the third category:
summarizing the Court’s caselaw, again with respect to interstate commerce in particular, the
Court in Lopez recited that “Congress’ commerce authority includes the power to regulate” not
No. 20-5688 United States v. Rife Page 6
only commerce itself, but also “those activities that substantially affect interstate commerce.” Id.
at 558-59.
In the 80 years since the Supreme Court added that third category to Congress’s power to
regulate interstate commerce—an addition that has come to overshadow the original structure to
which it was attached—the Court has not extended it to Congress’s power to regulate under the
Foreign Commerce Clause. See Baston v. United States, 137 S. Ct. 850, 852 (2017) (Thomas, J.,
dissenting from denial of certiorari) (observing that the federal circuit courts have been
“[w]ithout guidance from this Court as to the proper scope of Congress’ power under this
Clause”). Thus, a threshold question here is whether we must or should extend that addition to
Congress’s foreign-commerce power ourselves.
2.
Our answer to that question rests on first principles. Law is a public act. Its meaning
depends not on the secret intentions of lawgivers, but on the meaning understood by the people
bound by it. Basic principles of due process require no less. Meanwhile, the creation of positive
law—meaning statutes and the Constitution itself—can occur only pursuant to the procedures
prescribed in the Constitution. For statutes, those procedures are bicameralism and presentment.
See Art. I, § 7. For the Constitution—setting aside its original ratification under Article VII—
those procedures are the ones prescribed in Article V. Thus, for statutes and constitutional
provisions alike, there is a straight line from the constitutional requirements for making law; to a
text that has met those requirements; to the meaning that the citizens bound by that text would
have ascribed to it, which is to say its original meaning; and to what is then the law, which as
judges we are bound to apply. Hence the Constitution’s original meaning is law, absent binding
precedent to the contrary.
There is no such precedent here. See Baston, 137 S. Ct. at 852 (Thomas, J., dissenting).
Nor do we otherwise see any compulsion to add to the Foreign Commerce Clause the revisionist
structure that, 80 years ago, the Supreme Court added to the Interstate Commerce Clause. (That
addition, it bears mention, came during a period of national exigencies peculiar to interstate
commerce—namely a national Depression ever since known as such, and (in Wickard v. Filburn,
No. 20-5688 United States v. Rife Page 7
317 U.S. 111 (1942)) the beginnings of a nationwide war effort.) True, Justice Blackmun once
observed in dicta that, “[a]lthough the Constitution grants Congress power to regulate commerce
‘with foreign Nations’ and ‘among the several States’ in parallel phrases, there is evidence that
the Founders intended the scope of the foreign commerce power to be the greater.” Japan Line,
Ltd. v. County of Los Angeles, 441 U.S. 434, 448 (1979) (citation omitted). But in that
comparison the Founders surely did not have the current interstate-commerce power in mind.
The government asserts that “considerations of federalism and state sovereignty” are
absent “in the foreign context[,]” and thus that “the primary rationale for limiting Congress’s
power over interstate commerce does not touch the authority of the Congress in the regulation of
foreign commerce.” Gov’t Br. at 27 (internal quotation marks omitted). That argument is as
remarkable as it is unfortunate. The “primary rationale” for limiting Congress’s power is not that
those limits support one theory of political science or another. The rationale, rather, is that those
limits are part of a written constitution that is “the supreme Law of the Land” and that every
federal officer is sworn to uphold. U.S. Const. Art. VI, cl. 2; see also Marbury v. Madison,
5 U.S. 137, 176 (1803) (“The powers of the legislature are defined, and limited; and that those
limits may not be mistaken, or forgotten, the constitution is written”); The Federalist No. 45
(Madison) (“The powers delegated to the federal government are few and defined”). That the
Constitution marks out limitations to federal power—standing alone—compels us to enforce
them.
In sum, to determine whether Rife’s conviction under 18 U.S.C. § 2423(c) was supported
by the Foreign Commerce Clause, we ask whether his conduct fell within Congress’s power to
“regulate Commerce with foreign Nations,” as that power was originally understood.
3.
That analysis is straightforward. Rife’s molestation of his two victims was undisputedly
noncommercial, and thus was not itself trade or commerce of any kind. True, Rife met his
victims at the school where he taught; but the government concedes that his abuse conduct was
itself in no way commercial. That distinguishes this case from United States v. Park, 938 F.3d
354 (D.C. Cir. 2019), upon which the government and the concurring opinion rely here. There,
No. 20-5688 United States v. Rife Page 8
the government charged Park in a single count, alleging both sexual abuse and production of
child pornography, in violation of § 2423(c). Id. Thus, the court reasoned, “the indictment
stands so long as Congress had the authority to reach either type of conduct.” Id. at 364. And
production of child pornography, the court said, “may rationally be viewed as quintessentially
economic activity.” Id. at 372. Moreover, “Park was able to meet and introduce himself” to his
sexual-abuse victim “by offering English lessons.” Id. at 374. Indeed Park lured his victim into
his apartment that way. Id. “Trade” was thus literally part of the abuse conduct there. But here
the government did not allege any such trade; and even the court in Park expressly recognized
“the possibility that some applications of this statute may exceed Congress’s authority[.]” Id.
Rife’s abuse of his two victims was likewise not part of any transportation or traffic in
foreign commerce. To the contrary, Rife had ceased travelling in foreign commerce when he
arrived in Cambodia years before. The government counters that § 2423(c) has what it calls a
“jurisdictional hook”—namely (as charged here) that that defendant has “travel[led] in foreign
commerce”—which in the government’s view cures any defect in Congress’s power to reach
Rife’s conduct here. Gov’t Br. at 34. To that end the government cites United States v. Henry,
429 F.3d 603, 620 (6th Cir. 2005), which was a felon-in-possession case where a jurisdictional
element of the offense was that the firearm and ammunition possessed by the defendant had
“been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(g). That
element, we held, was enough to bring Henry’s possession of the gun and ammunition within
Congress’s power to regulate interstate commerce. (We set to one side that Henry involved the
substantial-effects power under Lopez—a power we decline to recognize here.) But a gun itself
is commerce—because the gun itself is part of the trade—in a way that people usually are not.
The gun’s analogue in our case is not the person, but the transportation itself. And the bare fact
that an American “travels in foreign commerce” does not empower Congress to regulate, under
the Foreign Commerce Clause, everything that American does afterward. That is the plain
implication of the government’s argument here: that, once an American citizen travels in foreign
commerce, the federal government has a police power to regulate (or proscribe) any conduct that
citizen might engage in overseas, from marrying a foreign national to consuming foie gras.
Congress has no such power.
No. 20-5688 United States v. Rife Page 9
The government also likens this case to United States v. Coleman, 675 F.3d 615 (6th Cir.
2012), where we upheld a requirement that convicted sex offenders must “register” their new
address when they move (in the sense of changing their residence) from one state to another. See
18 U.S.C. § 2250. True, the offense there, like the one here, had as an element that the defendant
had “travel[led] in interstate or foreign commerce[.]” Id. § 2250(a)(2). But there the defendant’s
movement in interstate commerce, standing alone, was a criminal offense if he did not update his
address on a national sex registry. We therefore held that § 2250 was a valid exercise of
Congress’s power to regulate “the channels and instrumentalities of interstate commerce[.]”
675 F.3d at 621. Here, Rife’s travel to Cambodia was not itself a criminal offense. And the
government’s argument here—that the “travels in interstate or foreign commerce” element
empowers the government to regulate any conduct or omission that follows—again amounts to
an assertion of a federal police power over the conduct of American citizens overseas.
In sum, Rife’s conviction under 18 U.S.C. § 2423(c) for molesting his two victims in
Cambodia, years after he travelled there, and without any commercial exchange, was not an
exercise of Congress’s power to “regulate Commerce with foreign Nations[.]” His conviction
cannot stand on that ground.
B.
1.
That leaves the question whether we can uphold Rife’s conviction as an exercise of
Congress’s power to enact legislation implementing a treaty. Article I grants Congress the
power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the
foregoing Powers and all other Powers vested by this Constitution in the Government of the
United States, or in any Department or Officer thereof.” U.S. Const. Art. I, § 8, cl. 18.
Meanwhile, Article II grants the President the “Power, by and with the Advice and Consent of
the Senate, to make Treaties, provided two thirds of the Senators present concur.” Id. Art. II,
§ 2, cl. 2. “Read together, the two Clauses empower Congress to pass laws ‘necessary and
proper for carrying into Execution . . . [the] Power . . . to make Treaties.’” Bond v. United
No. 20-5688 United States v. Rife Page 10
States, 572 U.S. 844, 874-75 (2014) (Scalia, J., concurring in the judgment) (alterations in
original). (Here, we call this power the “power to implement treaties.”)
That Rife’s conviction was not supported by the Foreign Commerce Clause means that
none of Congress’s enumerated powers—other than its power to implement treaties—supports
that conviction. Hence the question here is the same question that the Supreme Court declined to
reach in Bond. See 572 U.S. at 854-55.
That question is whether the President and two-thirds of the Senate, by the sole fact of
their consent to a treaty, can empower Congress to enact legislation that it otherwise could not
enact by the exercise of its enumerated powers in Article I. The implications of that question are
“seismic[,]” because the prevailing view appears to be that “the Treaty Clause comes with no
implied subject-matter limitations.” Bond, 572 U.S. at 877 (Scalia, J., concurring in the
judgment). For if the Treaty Power has no subject-matter limitations, Congress’s power to enact
laws that implement treaties would not have any subject-matter limitations either. (The
concurring opinion’s assurance that an implementing statute must have a “plain” connection with
the relevant treaty, Op. at 16, only underscores the absence of any meaningful constraints upon
this putative power.) The Necessary and Proper Clause would become a portal, through which
Congress would leave behind its limited powers and exercise, at last, an unlimited one. For
example, a treaty addressing climate change—or an international convention for the prevention
of infectious diseases—might empower Congress to regulate virtually any conduct it chose.
Congress would be “one treaty away from acquiring a general police power.” Id. at 879.
2.
The question, differently stated, is whether one organ of government can expand the
powers of another, notwithstanding the fundamental law’s manifest object to constrain them
both. The Founding generation was acutely familiar with that kind of question. In Anglo-
American history, the struggle to limit governmental power reaches at least as far back as the
1215 version of Magna Charta, when the barons brought King John to heel—and stopped his
practice of attacking them with mercenary troops—by eliciting at sword-point a promise to
exercise his coercive powers pursuant only to the ancient law of the land. See Magna Charta
No. 20-5688 United States v. Rife Page 11
¶ 39 (1215); McIlwain, Constitutionalism and the Changing World (hereinafter
“Constitutionalism”) 103-06 (Cambridge 1939). But more germane to our purposes—not least
because many of the early colonists witnessed it firsthand—was the effort by judges and
Parliament in the 17th century to resist the Stuart monarchs’ claims of unlimited power. Not
long after his coronation in 1603, King James I asserted a putative royal power to declare what
the law is; but Edward Coke, then Chief Justice of the Court of Common Pleas, told James to his
face that only judges in a court of law could do that. See Case of Prohibitions, 12 Coke R. 64
(1607). James also asserted a power to legislate unilaterally by proclamation; but again Coke
pointedly advised him he could not. See Case of Proclamations, 12 Coke R. 74 (1610). After
James’s death his son, Charles I, asserted a power of extracting “forced loans” from the nobles of
his day—an early version of taxation without consent—and denied the writ of habeas corpus to
nobles who refused to provide them. See Maitland, The Constitutional History of England 307
(Cambridge 1908). Parliament responded with the 1628 Petition of Right—orchestrated by
Coke, who was then a member of Parliament, after James had dismissed him from the bench
twelve years before—which became law and banned these practices (along with quartering
“soldiers and mariners” in citizens’ homes) when Charles consented to the petition. See 1628
Petition of Right, para. X; 3 The Selected Writings of Sir Edward Coke 1224-35 (Liberty Fund
2003); Maitland, Constitutional History 307. Much of this history and the law embodied in it
was memorialized by Coke in his Reports and Institutes, which the colonists brought with them
to America. See Bailyn, The Ideological Origins of the American Revolution 30-31 (Harvard
1992) (“Coke is everywhere in the [legal] literature” of the colonies).
Closer to the mark here was Parliament’s claim in the 18th century that Parliament itself
was sovereign—meaning that above Parliament there was no law, and thus that its power was
unlimited. McIlwain, Constitutionalism 62-64. In the 1760s, Parliament exercised such power
by passing various statutes to tax the American colonists, even though they lacked representation
in Parliament and thus had not consented to any taxes. For centuries, consent to taxation—or to
any statute affecting individual rights—had been a requirement of what was known by then as
the English constitution. Maitland, Constitutional History 68. Yet Parliament made its assertion
of unlimited power over the colonies clear in the Declaratory Act of 1766, which stated that
Parliament “had, hath, and of right ought to have, full power and authority to make laws and
No. 20-5688 United States v. Rife Page 12
statutes of sufficient force and validity to bind the colonies and people of America, subjects of
the crown of Great Britain, in all cases whatsoever.” 6 Geo. 3, ch. 12 (1766) (emphasis added).
The Massachusetts Circular Letter of 1768, written by Samuel Adams, declared in response “that
in all free States the constitution is fixed; and as the supreme legislative derives its power and
authority from the constitution, it cannot overleap the bounds of it, without destroying its own
foundation[.]” (Emphasis added.) McIlwain—among American historians, the preeminent
expositor of constitutionalism—concluded: “The American Revolution itself, so far as its causes
were theoretical, had been fought on this issue.” McIlwain, Constitutionalism 67.2
3.
In light of this history, the idea that the Founding generation would have included in the
Constitution—as part of an ancillary power of Article I, no less—a hidden power to “overleap
the bounds” of all the other powers in that Article, and to legislate “in all cases whatsoever,” is
simply implausible. The Revolution was fought in opposition to the Declaratory Act, not to
make it the supreme law of the land. Chief Justice Marshall recognized as much when he wrote
that “a great substantive and independent power . . . cannot be implied as incidental to other
powers, or used as a means of executing them.” McCullough v. Maryland, 17 U.S. 316, 411
(1819). Yet the government asks us to recognize such a power here. That the conduct at issue in
the case occurred overseas is merely a fortuity: the principle it advocates would enable Congress,
2Although the concurring opinion calls our analysis “quasi-historical” and “anecdotal,”
Op. at 18, the concurring opinion does not actually contest any historical proposition in our
opinion. (Notably, the concurring opinion offers no support for Lopez’s substantial-effects test.)
In a sense, of course, all history is anecdotal—as the word itself suggests. And as for
“methodology,” Op. at 14, Magna Charta is a primary source; so are Coke’s opinions in the Case
of Prohibitions and the Case of Proclamations; so is the 1628 Petition of Right; so is the
Declaratory Act of 1766; so is the Massachusetts Circular Letter of two years later. True, the
McIlwain, Bailyn, and Maitland sources cited here are secondary. Among historians of 18th-
century America, however, McIlwain was a towering figure in the first half of the 20th century,
as Bailyn was in the second. McIlwain won a Pulitzer for his book-length treatment of precisely
the “causes” proposition cited here, see McIlwain, The American Revolution: A Constitutional
Interpretation (Macmillan 1923); Bailyn won a Pulitzer for Ideological Origins (and two
decades later won another). And Maitland is iconic enough among English legal historians to
count nearly as a primary source, like Bracton and Fortescue centuries before. Of course, if any
lawyer or judge disagrees with the conclusions of these historians, they can say as much—and
explain why.
No. 20-5688 United States v. Rife Page 13
with the right treaty, to regulate any conduct it chooses domestically. And that Rife’s conduct
deserves severe punishment does not allow us to authorize it contrary to law.
But as to Congress’s power to implement treaties—unlike its power to regulate
commerce with foreign nations—we do not write on a relatively clean slate. In Missouri v.
Holland, 252 U.S. 416 (1920), the Supreme Court considered the constitutionality of the
Migratory Bird Act of 1918. That statute, like the one here (as applied to Rife at least), appeared
not to have been authorized by any of Congress’s enumerated powers under Article I. But the
1918 Act was passed to implement a recent treaty of the same name. The Court held, in a
sentence regarded since as ipse dixit: “If the treaty is valid there can be no dispute about the
validity of the statute under Article I, Section 8, as a necessary and proper means to execute the
powers of the Government.” Id. at 432.
That holding binds us here. The Optional Protocol is undisputedly a valid treaty; and we
cannot say that § 2423(c) as applied to noncommercial sex offenses against children is so
unrelated to the treaty’s provisions as to put this case beyond the Court’s holding in Holland.
See United States v. Comstock, 560 U.S. 126, 134 (2010). Based on Holland alone, therefore, we
uphold Rife’s conviction.
* * *
The district court’s judgment is affirmed.
No. 20-5688 United States v. Rife Page 14
_______________________________________
CONCURRING IN THE JUDGMENT
_______________________________________
JANE B. STRANCH, Circuit Judge, concurring in the judgment. Though I agree with
the ultimate result in this case, I concur in the judgment only and write to express why I differ
with the analysis of the opinion.
My disagreement is undergirded by the opinion’s failure to acknowledge that the
“fundamental and long-standing principle of judicial restraint requires that courts avoid reaching
constitutional questions in advance of the necessity of deciding them.” Lyng v. Nw. Indian
Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988). Judicial restraint originates from the
limits to our power under Article III, Torres v. Precision Indus., Inc., 938 F.3d 752, 755 (6th Cir.
2019) (citing U.S. Const. art. III, § 2; Rescue Army v. Mun. Ct. of L.A., 331 U.S. 549, 568–71
(1947)), and has long governed the courts. In 1936, Justice Brandeis marshalled the Court’s
extensive precedent supporting judicial restraint to offer rules emanating from that principle,
including that we should not rule on constitutional questions “unless absolutely necessary to a
decision of the case,” and we should not create constitutional rules that stretch beyond the
applicable facts of the dispute at hand. Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347
(1936) (Brandeis, J., concurring) (quoting Burton v. United States, 196 U.S. 283, 295 (1905));
Torres, 938 F.3d at 754. Such restraint was appropriate here as our opinion affirms the district
court on the narrow grounds that 18 U.S.C. § 2423 does not exceed Congress’s treaty power as
applied to Micky Rife. The long history of judicial restraint jurisprudence thus counsels against
addressing constitutional questions concerning the Foreign Commerce Clause in this case.
I am concerned, then, about the extent of the issues on which the majority opines but also
disquieted by some of the substance. I agree, for example, that § 2423(c) is constitutional under
the treaty power but I cannot agree with the path the opinion takes to reach that decision. It does
so by first taking the musings on the Foreign Commerce Clause from United States v. Al-Maliki,
787 F.3d 784 (6th Cir. 2015), and then reaching beyond those musings to decide that § 2423(c) is
outside the bounds of Congress’s Foreign Commerce Clause power. Our holding today does not
No. 20-5688 United States v. Rife Page 15
depend on that clause. Addressing the Foreign Commerce Clause oversteps our boundaries.1 In
addition to this circuitous route, I am concerned about the method of analysis regarding the treaty
power. Only after significant comments in dicta on the limits of the treaty power does the
opinion apply the prevailing law and begrudgingly acknowledge that § 2423(c) as applied in this
case is constitutional. I agree with that decision but disagree with the reasoning leading up to it.
In sum, my decision to concur in the judgment grows from my objections to the
analytical treatment of the treaty power and the Foreign Commerce Clause, both as to substance
and process. The opinion, in my estimation, places the Sixth Circuit out of step with our sister
circuits and the governing case law and compels me to provide a response.
A. The Foreign Commerce Clause
The Constitution gives Congress the power “[t]o regulate Commerce with foreign
Nations, and among the several States, and with the Indian Tribes[.]” U.S. Const. art. I, § 8, cl.
3. Since the early 19th century, the Supreme Court has recognized that the term “commerce”
“must carry the same meaning throughout the sentence, and remain a unit, unless there be some
plain intelligible cause which alters it.” Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 194 (1824).
The Court further explained that the definition of “commerce” encompasses “every species of
commercial intercourse” between two parties. Id. at 193. Courts, therefore, have typically
considered the reach of the Foreign Commerce Clause in dialogue with the Indian Commerce
and Interstate Commerce Clauses. See, e.g., United States v. Park, 938 F.3d 354, 370 (D.C. Cir.
2019).
The latter is the most discussed in the case law. Although referring to the “commerce
power” in the main, the Supreme Court has defined “three general categories of regulation in
which Congress is authorized to engage under its commerce power” within the interstate
1The majority notes that the D.C. Circuit’s opinion in United States v. Park, 938 F.3d 354(D.C. Cir. 2019), explored how both the Foreign Commerce Clause and the treaty power support
the constitutionality of § 2423(c). I cite Park, but not to suggest that Park’s belt-and-suspenders
approach was necessary or the proper way to proceed. The opinion in Park was decidedly
thoughtful and offers careful analyses of both sources of congressional power. Because the
majority considers both constitutional issues, it makes sense to reference our sister circuit’s
lengthy consideration of the same.
No. 20-5688 United States v. Rife Page 16
framework. Gonzales v. Raich, 545 U.S. 1, 16 (2005). Congress has the power to regulate
(1) the channels of interstate commerce, (2) the instrumentalities of interstate commerce,
meaning those means used to transport good or people in interstate commerce, and (3) activities
substantially related to interstate commerce. United States v. Lopez, 514 U.S. 549, 558 (1995).
The constraints defined through these three categories are not illusory. In Lopez, the Supreme
Court held that a statute criminalizing the possession of a firearm in a school zone was
unconstitutional because the law failed to fit within any of the three categories. Id. at 561–62,
567. The Court reached a similar result in United States v. Morrison when it struck down
sections of the Violence Against Women Act that lacked a substantial relationship to interstate
commerce. 529 U.S. 598, 617 (2000). Left unanswered, however, is whether or to what extent
this framework applies to cases involving the Foreign Commerce Clause. Our sister circuits
have reached different conclusions on the issue, and until this case, we have not ruled on it.
Compare United States v. Pendleton, 658 F.3d 299, 308 (3d Cir. 2011) (using the Lopez
framework in concluding that the Foreign Commerce Clause gives Congress the power to enact
§ 2423(c)), with United States v. Bollinger, 798 F.3d 201, 215 (4th Cir. 2015) (explaining “that
the Lopez categories provide a useful starting point in defining Congress’s powers under the
Foreign Commerce Clause,” but concluding that the Foreign Commerce Clause power is
broader).
The majority opinion, however, rejects the Lopez framework entirely, contending that
there is no “compulsion to add to the Foreign Commerce Clause the revisionist structure that,
80 years ago, the Supreme Court added to the Interstate Commerce Clause.”2 Op. at 6. I cannot
agree with this appeal to “first principles” or to the vague premise of originalism as justification
2The majority’s statement that the Lopez framework was “added” to the Interstate
Commerce Clause—and therefore implicitly illegitimate—misunderstands the underlying reason
for use of that framework. As Professor Richard Fallon has explained, the three- and four-part
tests common to constitutional law and exemplified in the Lopez framework are best understood
as providing the means of implementing the purposes behind constitutional provisions. Richard
H. Fallon, Jr., Foreword: Implementing the Constitution, 111 Harv. L. Rev. 56, 57 (1997). In the
case of the Interstate Commerce Clause, “[t]he Lopez categories . . . are doctrinal approximations
adopted by the Supreme Court to systematize its case law concerning interstate commerce within
a broader structural understanding of the relationship between state and federal power.” Gerald
L. Neuman, Extraterritoriality and the Interest of the United States in Regulating Its Own,
99 Cornell L. Rev. 1441, 1450 (2014).
No. 20-5688 United States v. Rife Page 17
to jettison the Supreme Court’s Interstate Commerce Clause jurisprudence. Id. Nor am
I comfortable with the conclusions, primarily citing to Supreme Court concurrences and dissents,
as to the “original meaning” of “commerce” at ratification or the insistence that this “original
meaning is law, absent binding precedent to the contrary.” Id. To begin with, the relevant
creators and audience for this “public meaning” are left unclear, and the history that the majority
advances fails to recognize that, particularly with respect to the Constitution, “the past is seldom
neat and tidy.” Larry D. Kramer, When Lawyers Do History, 72 Geo. Wash. L. Rev. 387, 401
(2003). We as judges should “respect the limits of historical interpretation, which preserves a
healthy space for concluding that something remained open or was not fully appreciated or
understood.” Id. at 407. I can agree with my colleagues, however, that the Founders of this
nation drafted the Constitution in an era alien to our own, particularly with respect to the ways in
which commerce of all types would exist. But that conclusion neither proves that history
actually comports with the “original meaning” proposed here nor does it undercut Supreme
Court precedent on the subject.
The purported “original meaning,” moreover, offers little certainty about the best
application of our constitutional structure to novel issues like the one presented in this case.
Indeed, it is not difficult to find historical sources and case law signaling that the Founders
envisioned the Foreign Commerce Clause as granting greater power to Congress than its
interstate compatriot and understood “commerce” much more broadly than the majority suggests.
Samuel Johnson’s dictionary, a commonly cited source3 for understanding language used at the
Founding, offers a much broader definition of “commerce” than the majority allows in its
version of “original public meaning.” “Commerce,” according to Johnson in 1785, is
“[i]ntercourse; exchange of one thing for another, interchange of any thing; trade; traffick” and
“common or familiar intercourse.” Samuel Johnson, A Dictionary of the English Language (7th
ed. 1785) (unpaginated). “Commerce,” therefore covered more than economic activity and
included “interactions, exchanges, interrelated activities, and movements back and forth,
3Justice Scalia, for example, cited to the 1773 edition of Samuel Johnson dictionary in
District of Columbia v. Heller, 554 U.S. 570, 581 (2008). The Supreme Court has frequently
leaned on Johnson’s definitions when invoking the Founders’ understanding of constitutional
terms. See, e.g., Torres v. Madrid, 141 S. Ct. 989, 996 (2021); Ariz. State Legislature v. Ariz.
Indep. Redistricting Comm’n, 576 U.S. 787, 813 (2015).
No. 20-5688 United States v. Rife Page 18
including, for example, travel, social connection, or conversation.” Jack M. Balkin, Commerce,
109 Mich. L. Rev. 1, 15–16 (2010). As explained in Gibbons v. Ogden: “Commerce,
undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial
intercourse between nations, and parts of nations, in all its branches, and is regulated by
prescribing rules for carrying on that intercourse.” 22 U.S. at 189–90. Historians have
concluded that “commerce” at the Founding included “every species of gainful activity carried
on by Americans with foreign Nations,” even sweeping in naturalization laws based on their
effect on manufacturing in the United States. William W. Crosskey, 1 Politics and the
Constitution in the History of the United States 117, 129–30 (1953). The requirement that these
activities occur “with foreign Nations,” in turn, provides a nexus requirement that reaches
beyond our Nation’s borders. The text of the Foreign Commerce Clause offers only two
constraints on congressional action: that the action (1) “regulate Commerce” and (2) concern
commerce “with foreign Nations.” See Bollinger, 798 F.3d at 213. That specification of power,
combined with the Necessary and Proper Clause, reaches more than direct economic
transactions.
As to the extent of Congress’s power over commerce, James Madison described the
regulation of foreign commerce as “the great and essential power,” in comparison to the
“supplemental” power of the Interstate Commerce Clause. Federalist No. 42, at 283 (James
Madison) (Jacob E. Cooke ed., 1961); see also 3 The Records of the Federal Convention of
1787, at 478 (Max Farrand ed., 1911) (February 13, 1829 letter from James Madison). “[T]here
can be little doubt that the [Framers’] major preoccupation was with foreign trade and that the
power over interstate commerce, while coordinate in expression, was distinctly secondary in
scope and intended operation.” Albert S. Abel, The Commerce Clause in the Constitutional
Convention and in Contemporary Comment, 25 Minn. L. Rev. 432, 469 (1941). It is true that the
Supreme Court has yet to specify exactly how its century of cases delineating the scope of the
Interstate Commerce Clause apply to cases involving the Foreign Commerce Clause. But the
Court has implicitly rejected reading the Foreign Commerce Clause more narrowly than the
Interstate Commerce Clause. Indeed, it has embraced the broad reach of Congress’s powers
under that clause: In Japan Line, Ltd. v. Los Angeles County, the Court determined that “there is
No. 20-5688 United States v. Rife Page 19
evidence that the Founders intended the scope of the foreign commerce power to be the greater.”
441 U.S. 434, 448 (1979). We are bound to follow what the Supreme Court has told us.
In some sense, the majority is correct. We can and should distinguish the Foreign
Commerce Clause and the Interstate Commerce Clause because the constraints inherent in the
latter lack the same justification when applied to the Foreign Commerce Clause. Bd. of Trs. of
Univ. of Ill. v. United States, 289 U.S. 48, 59 (1933). But those constraints work against the
majority’s conclusions. Federalism—the driving concern of limits on the Interstate Commerce
Clause—has no impact on a power focused on permitting the United States to speak with one
voice. See, e.g., Japan Line, 441 U.S. at 448; Morrison, 529 U.S. at 615; see Neuman, supra, at
1500–01. In NLRB v. Jones & Laughlin Steel Corp., for example, the Supreme Court explained
that the power to regulate interstate commerce “must be considered in the light of our dual
system of government and may not be extended” so far as to “obliterate the distinction between
what is national and what is local and create a completely centralized government.” 301 U.S. 1,
37 (1937). Lopez’s anxiety that the expansion of congressional authority under the Interstate
Commerce Clause would create in the federal government “a general police power of the sort
retained by the States,” 514 U.S. at 567, undoubtedly also rests on federalism. Thus, the Court
explained that federalism in Interstate Commerce Clause jurisprudence is driven by the principle
that “a healthy balance of power between the States and the Federal Government will reduce the
risk of tyranny and abuse from either front.” Id. at 552 (quoting Gregory v. Ashcroft, 501 U.S.
452, 458 (1991)).
In contrast, the Foreign Commerce Clause signals the need for a unified federal action in
interactions among sovereign nations. “In international relations and with respect to foreign
intercourse and trade the people of the United States act through a single government with
unified and adequate national power.” Bd. of Trs. of Univ. of Ill., 289 U.S. at 59. There is no
federalism issue because the federal government’s actions on the international stage do not
encroach upon the power of the states. See id. The Court has long instructed that on issues of
international significance, federal authority is at its strongest. “The broad statement that the
federal government can exercise no powers except those specifically enumerated in the
Constitution, and such implied powers as are necessary and proper to carry into effect the
No. 20-5688 United States v. Rife Page 20
enumerated powers, is categorically true only in respect of our internal affairs.” United States v.
Curtiss-Wright Export Corp., 299 U.S. 304, 315–16 (1936) (emphasis added). The Court has
more recently explained that “[i]n a world that is ever more compressed and interdependent, it is
essential the congressional role in foreign affairs be understood and respected.” Zivotofsky v.
Kerry, 576 U.S. 1, 21 (2015).
One could imagine an additional objection to an expansive Foreign Commerce Clause—
that incorporation of the Interstate Commerce Clause framework into the Foreign Commerce
Clause context will impinge on the sovereignty of other nations. The opposite is true. The
PROTECT Act does not challenge foreign sovereignty, but instead reinforces a consensual,
international regulatory framework that allows the United States to target the conduct of its own
citizens and permanent residents only. And it has long been recognized that “Congress has the
authority to enforce its laws beyond the territorial boundaries of the United States.” E.E.O.C. v.
Arabian Am. Oil Co., 499 U.S. 244, 248 (1991); see also Blackmer v. United States, 284 U.S.
421, 437 (1932). The Constitution lacks any clear expression of concern about the sovereignty
of foreign nations. Unlike federalism, which is woven into the fabric of our constitutional
structure, foreign national sovereignty features in neither the Constitution nor the Constitutional
Amendments. See United States v. Durham, 902 F.3d 1180, 1205–06 (10th Cir. 2018), cert.
denied, 139 S. Ct. 849 (2019). As the Supreme Court has explained, “foreign sovereign
immunity is a matter of grace and comity on the part of the United States, and not a restriction
imposed by the Constitution.” Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486
(1983). Broader foreign sovereignty concerns, therefore, should not constrain the Foreign
Commerce Clause.
These differences from the Interstate Commerce Clause cannot lead us to read the
Foreign Commerce Clause so narrowly as to make it the lesser power. Indeed, to construe it
more narrowly than its interstate commerce counterpart, as the majority does, is to ignore clear
judicial precedent and thoughtful scholarly analysis. See, e.g., Japan Line, Ltd., 441 U.S. at 448;
Scott Sullivan, The Future of the Foreign Commerce Clause, 83 Fordham L. Rev. 1955, 1968
(2015) (“Court opinions agree that the scope of the Foreign Commerce Clause is, at the very
least, decidedly broader than that of the Interstate Commerce Clause.”).
No. 20-5688 United States v. Rife Page 21
The Indian Commerce Clause is perhaps the more apt guide for interpreting the limits of
this power. As federal courts, including the Supreme Court, have long recognized, the parallel
wording of the Foreign Commerce Clause and the Indian Commerce Clause requires that similar
breadths of power be afforded under those clauses. See, e.g., Buttfield v. Stranahan, 192 U.S.
470, 493 (1904) (“The power to regulate foreign commerce is certainly as efficacious as that to
regulate commerce with the Indian tribes.”); Durham, 902 F.3d at 1202. The Supreme Court has
explicitly tied the two clauses to one another, explaining that Congress’s “exclusive and absolute
power to regulate commerce with the Indian tribes” is “a power as broad and as free from
restrictions as that to regulate commerce with foreign nations.” United States v. Forty-Three
Gallons of Whiskey, 93 U.S. 188, 194 (1876). Because the two clauses are read as parallel, we
must account for the Court’s more recent description of the Indian Commerce Clause as offering
Congress “plenary power” to regulate commerce with Indian tribes. United States v. Lara, 541
U.S. 193, 200 (2004) (quoting Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192
(1989)). “Congress can (and has) invoked its power to regulate commerce with Indian Tribes
and foreign nations to govern not merely trade and business but all interactions (and altercations)
with those entities.” Robert J. Pushaw, Jr. Obamacare and the Original Meaning of the
Commerce Clause: Identifying Historical Limits on Congress’s Powers, 2012 U. Ill. L. Rev.
1703, 1727 (emphasis added). Given the textual and precedential parallels between the clauses,
then, the Foreign Commerce Clause must share the Indian Commerce Clause’s expansive reach.
However, the extent of Interstate Commerce Clause jurisprudence provides the most
complete analytic framework. We therefore should look to our Interstate Commerce Clause
jurisprudence as a starting point—not a ceiling—for an evaluation of § 2423. Using the
Interstate Commerce Clause framework as our analytical starting point, most of our sister circuits
have adopted an “effects test” based on the third Lopez category. See Park, 938 F.3d at 372.
The question, then, is whether Congress had a rational basis for concluding that the prohibited
conduct, when aggregated, substantially affects foreign commerce. Cf. Gonzales v. Raich,
545 U.S. 1, 22 (2005) (“In assessing the scope of Congress’ authority under the Commerce
Clause, . . . . [w]e need not determine whether respondents’ activities, taken in the aggregate,
substantially affect interstate commerce in fact, but only whether a ‘rational basis’ exists for so
concluding.”).
No. 20-5688 United States v. Rife Page 22
Here, the reasoning of our sister circuits that have addressed this exact issue provides
helpful guidance. All circuit courts to have considered this issue, save us, have found that the
Foreign Commerce Clause provides Congress the power to enact § 2423(c). See Park, 938 F.3d
at 375; United States v. Lindsay, 931 F.3d 852, 863 (9th Cir. 2019), cert. denied, 140 S. Ct. 1288(2020); Durham, 902 F.3d at 1216; Bollinger, 798 F.3d at 219; Pendleton, 658 F.3d at 308. As
discussed above, there has not been universal agreement on the proper reach of the Foreign
Commerce Clause, especially with respect to the framework established in Interstate Commerce
Clause cases. Some of our sister courts have directly imported the Lopez categories to the
foreign context. See Pendleton, 658 F.3d at 308. Others have persuasively argued that the
Foreign Commerce Clause is broader but have still generally gestured to the Lopez categories as
helpful. See Bollinger, 798 F.3d at 215; U.S. v. Cummings, 281 F.3d 1046, 1049 n.1 (9th Cir.
2002). Finally, some of our sister courts have deviated more substantially from the Lopez
framework to conclude that Congress has power to regulate foreign commerce when the statute
shows “a constitutionally tenable nexus with foreign commerce.” U.S. v. Clark, 435 F.3d 1100,
1114 (9th Cir. 2006). But none has concluded, as the majority does here, that the Foreign
Commerce Clause does not grant Congress the power to prohibit U.S. citizens from committing
child sex abuse abroad.
We need not, however, define what specific “effects test” to use, see, e.g., Durham,
902 F.3d at 1207 (“substantial effect”); Bollinger, 798 F.3d at 215–16 (or “demonstrable
effect[s]”), nor determine how faithfully we should apply the Lopez framework to Foreign
Commerce Clause cases. It suffices to say only that the Foreign Commerce Clause does provide
Congress with the power required to enact § 2423(c) for non-commercial child sex abuse abroad.
The record leaves little doubt that there is a rational connection between the conduct prohibited
in § 2423(c) and foreign commerce. Congress enacted § 2423(c) to eliminate the “significant
loopholes in the law that persons who travel to foreign countries seeking sex with children are
currently using to their advantage in order to avoid prosecution.” H.R. Rep. No. 107-525, at 3
(2002). As the district court noted, “because the United States is so effective, comparatively, at
enforcing its criminal laws against child sexual abuse within its borders, and monitoring the
convicted thereafter, the United States has inadvertently incentivized convicted sex offenders to
relocate to foreign countries.” United States v. Rife, 429 F. Supp. 3d 363, 367 (E.D. Ky. 2019)
No. 20-5688 United States v. Rife Page 23
(citations omitted). In the congressional debates on the law, representatives cited the fact that
American citizens were using the channels of foreign commerce to travel to countries where lax
law enforcement and poverty make it easy to escape prosecution for sexual abuse of minors. See
148 Cong. Rec. H3884–85 (daily ed. June 25, 2002).
The PROTECT Act’s criminalization of non-commercial child sex abuse by U.S. citizens
living abroad supports the larger goal of eliminating commercial sexual child exploitation in the
face of the “enforcement difficulties” that a more straightforward proof of transaction
requirement would entail. Cf. Raich, 545 U.S. at 22. As the D.C. Circuit explained in response
to this very question, “[p]roof of the commercial aspect of child sexual exploitation can be
exceptionally elusive,” even as international child sex tourists pay for goods and services to
bring them in close contact with possible victims. Park, 938 F.3d at 373 (citing Najat Maalla
M’jid, Report of the Special Rapporteur on the Sale of Children, Child Prostitution and Child
Pornography, U.N. Doc. A/HRC/22/54, at 5 (Dec. 24, 2012)). Sexual predators’ common means
to access victims, moreover, often involve grooming behaviors, like giving gifts or money, to
establish trust and manipulate the child. Id. (citing Georgia M. Winters & Elizabeth L. Jeglic,
Stages of Sexual Grooming: Recognizing Potentially Predatory Behaviors of Child Molesters,
38 Deviant Behav. 724, 726 (2017)). Section 2423(c), therefore, falls within Congress’s foreign
commerce power because it tamps down demand for commercial arrangements contributing to
and offering opportunities for sexual abuse abroad. See id.; accord Lindsay, 931 F.3d at 863.
The challenging question here is not whether the Foreign Commerce Clause allows
Congress to regulate U.S. citizens’ actions abroad, but instead whether as applied to Rife that
necessary effect on commerce brings his conduct under this wide umbrella of congressional
power. In Park, the D.C. Circuit recognized “the possibility that some applications of
[§ 2423(c)] may exceed Congress’s authority,” but determined that the defendant’s actions were
sufficiently market-affecting because he was alleged to have “traveled throughout the world
seeking out opportunities for child sex abuse.” Park, 938 F.3d at 374. The record is not so neat
here as evidence is scant that Rife traveled to, resided in, or sought employment in Cambodia for
the purpose of abusing children. However, several facts signal that the application is
nevertheless constitutional. First, the presentence report (PSR) specifically asserts that Rife
No. 20-5688 United States v. Rife Page 24
traveled to Cambodia to help him conceal his pattern of abuse and give him access to vulnerable
victims through his work at a Cambodian elementary school. Rife did not object to this part of
the PSR. Evidence in the record, moreover, supports that Rife used his position as a teacher to
commit abuse, even committing some of his abuse while engaging in the “economic” activity
that was his teaching role. It is also important that § 2423 contains no intent requirement. See
H.R. Rep. No. 108-66, at 51 (2002) (Conf. Rep.) (amending § 2423 to address “a number of
problems related to persons who travel to foreign countries and engage in illicit sexual relations
with minors,” including the requirement under earlier versions of the law that the government
“prove that the defendant traveled with the intent to engage in the illegal activity”). Unlike
§ 2423(b), which requires the Government to prove that the “motivating purpose” of foreign
travel is “illicit sexual conduct,” § 2423(c) effectively imposes per se liability. Rife falls within
the ambit of § 2423(c), and I see no reason to conclude that the Foreign Commerce Clause does
not give Congress the power to criminalize behavior that our courts have long documented as
having a significant economic component.
Because our agreed result here relies on the treaty power, however, we need not reach a
decision on which exact path to take with the Foreign Commerce Clause. I write only to explain
why I believe the interpretation the majority has chosen is simply incorrect.
B. Treaty Power
Although the majority opinion upholds Rife’s conviction based on its conclusion that
18 U.S.C. § 2423(c) is constitutional as applied to Rife under Congress’s treaty power, it does so
with significant protest. Rather than examine the underlying treaty and the relationship it bears
to the PROTECT Act, the majority again relies on historical conclusions, without satisfactory
explanation of its methodology for selecting its sources. It determines that “the Founding
generation” would never have included such an expansive treaty power as the Supreme Court has
squarely recognized.4 Because I believe this issue requires more analysis, I write separately on
this ground as well.
4The historical record challenges this assertion. Edmund Randolph, for example,
explained during the debates over adopting the Constitution that its treaty language was
No. 20-5688 United States v. Rife Page 25
The Constitution’s Treaty Clause provides that the President may enter treaties with the
advice and consent of the Senate. U.S. Const. art. II, § 2, cl. 2. The Necessary and Proper
Clause, in turn, grants Congress the power to fill “regulatory gaps” left in the lacuna of its
enumerated powers. Sabri v. United States, 541 U.S. 600, 607 (2004). Congress, therefore, has
the “power to enact such legislation as is appropriate to give efficacy to . . . treat[ies]” that the
President has entered with Senate advice and consent. Neely v. Henkel, 180 U.S. 109, 121
(1901). These two clauses work together such that “[i]f the treaty is valid there can be no dispute
about the validity of the statute under Article I, § 8, as a necessary and proper means to execute
the powers of the Government.” Missouri v. Holland, 252 U.S. 416, 432 (1920). Congress’s
power emanating from the Necessary and Proper Clause is usually termed its “treaty power.”
See Lara, 541 U.S. at 201.
Our review of whether Congress has properly exercised its treaty power focuses on
“whether the statute constitutes a means that is rationally related to the implementation of a
constitutionally enumerated power.” United States v. Comstock, 560 U.S. 126, 134 (2010)
(citing Sabri, 541 U.S. at 605). The question, then, is whether Congress’s chosen means to
effectuate a valid treaty are “‘convenient, or useful,’ or ‘conducive’” to the treaty’s end purpose.
Id. at 134–35 (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 413 (1819)). “[T]he
degree of their necessity, the extent to which they conduce to the end, the closeness of the
relationship between the means adopted and the end to be attained, are matters for congressional
determination alone.” Id. at 135 (quoting Burroughs v. United States, 290 U.S. 534, 548 (1934)).
The majority justifies its significant criticisms of this prescribed analysis by asserting that
the Supreme Court’s explication of the treaty power in Missouri v. Holland, 252 U.S. 416(1920), is on “shaky ground” after Bond v. United States, 572 U.S. 844 (2014). But Bond did not
undermine Holland. Instead, Bond looked first to statutory construction to avoid reaching the
expansive because “[t]he various contingencies which may form the object of treaties, are, in the
nature of things, incapable of definition.” 3 The Debates in the Several State Conventions on the
Adoption of the Federal Constitution as Recommended by the General Convention at
Philadelphia in 1787, at 363 (Jonathan Elliot ed., 2d ed. 1859). Rather, the Founders seem to
have considered that politics—namely electoral accountability and impeachment—would serve
as the primary check on the expansive treaty power. See Oona A. Hathaway et al., The Treaty
Power: Its History, Scope, and Limits, 98 Cornell L. Rev. 239, 248 (2013).
No. 20-5688 United States v. Rife Page 26
constitutional question of whether a broad reading of the Chemical Weapons Convention
Implementation Act of 1998 was within Congress’s treaty power. Bond, 572 U.S. at 856–66.
The Court’s primary concern was that the federal government’s interpretation of that statute
would create significant federalism problems because it could reach purely local crimes. See,
e.g., id. at 854, 858–60, 866. The Supreme Court, moreover, emphasized the “well-established
principle governing the prudent exercise” of an Article III court’s jurisdiction that it “will not
decide a constitutional question if there is some other ground upon which to dispose of the case.”
Id. at 855 (quoting Escambia Cnty. v. McMillan, 466 U.S. 48, 51 (1984) (per curiam)). Only the
concurrences suggested the prudence of addressing the reach of the treaty power. Id. at 873–74
(Scalia, J., concurring in judgment); id. at 882 (Thomas, J., concurring in judgment); id. at 897
(Alito, J., concurring).
Given that Holland remains good law, we must examine whether the PROTECT Act’s
criminalization of non-commercial sexual abuse by a U.S. citizen residing abroad, 18 U.S.C.
§ 2423(c), is rationally related to the implementation of the Optional Protocol on the Sale of
Children, Child Prostitution and Child Pornography (Optional Protocol), which the United States
ratified in 2002. See 148 Cong. Rec. S5717-01 (daily ed. June 18, 2002). “When interpreting a
treaty, we ‘begin with the text of the treaty and the context in which the written words are used,’”
and we use our “general rules of construction.” E. Airlines, Inc. v. Floyd, 499 U.S. 530, 535
(1991) (quoting Vollkswagenwerk v. Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699, 700
(1988)). The Optional Protocol requires signatories to prohibit the “[o]ffering, obtaining, or
procuring or providing a child for child prostitution,” which includes “the use of a child in sexual
activities for remuneration or any other form of consideration.” Optional Protocol art. 2(b),
3(1)(b). Signatories are further encouraged to “take such measures as may be necessary to
establish its jurisdiction” over the exploitation of children for commercial gain, both when “the
alleged offender is a national of that State or a person who has his habitual residence in its
territory.” Id. art. 4(2). Under international law, this common form of jurisdiction in which a
country prescribes law about the “conduct, interests, status, and relations of its nationals and
residents outside its territory” is termed “active personality jurisdiction” or “nationality
jurisdiction.” Restatement (Fourth) of the Foreign Relations Law of the United States,
§ 402(1)(c), cmt. g & rep. n.7 (Am. L. Inst. 2018). The underlying principle is that all nations,
No. 20-5688 United States v. Rife Page 27
including the United States, have a “personal supremacy” over their citizens residing or traveling
abroad. Blackmer, 284 U.S. at 436, 437 n.2.
Although the Optional Protocol does not explicitly require the criminalization of
non-commercial sexual abuse, there is a rational relationship between the aims of the Optional
Protocol and the implementing PROTECT Act. The United States State Department explained
that the revised version of § 2423(c) that criminalizes non-commercial child sexual abuse
committed abroad was part of the nation’s efforts to fulfill its obligations under the Optional
Protocol. See U.S. Dep’t of State, Combined Third and Fourth Periodic Report of the United
States of America on the Optional Protocols to the Convention on the Rights of the Child on the
Involvement of Children in Armed Conflict and the Sale of Children, Child Prostitution, and
Child Pornography, ¶ C-57 (Jan. 22, 2016). The Optional Protocol itself states that its bare
terms, such as the focus on only commercial sexual abuse, are a minimum. Optional Protocol,
art. 3(1). A “holistic approach” is necessary. See id.; see also United States v. Belfast, 611 F.3d
783, 807 (11th Cir. 2010) (explaining that when a treaty sets a minimum standard, Congress may
implement the treaty’s aims with legislation going further than the treaty’s specific text). As the
D.C. Circuit explained in Park, the treaty’s “goal of eliminating commercial child sexual
exploitation, including global sex tourism, could be undercut if Congress failed to criminalize
non-commercial child sex abuse by U.S. residents abroad.” Park, 938 F.3d at 368. The
Necessary and Proper Clause allows Congress to address “regulatory gaps” such as the concern
about non-commercial sexual abuse of minors. See Sabri, 541 U.S. at 607; United States v.
Kebodeaux, 570 U.S. 387, 395 (2013).
Without § 2423(c), a legal “loophole” exists in which individuals seeking to sexually
abuse minors could escape criminally liability simply by traveling outside the United States to
poor areas that are unable to prosecute such crimes domestically. See Lindsay, 931 F.3d at 863
(“If Americans believe that traveling to a particular foreign country includes the opportunity for
unregulated, non-commercial illicit sexual conduct, they may travel to that country when they
otherwise would not.”). It is rational to believe that the absence of legislation criminalizing non-
commercial sexual activity abroad would undercut the Optional Protocol’s aim of undermining
global sex tourism involving minors. As the D.C. Circuit explained, “[i]f a U.S. national could
No. 20-5688 United States v. Rife Page 28
travel overseas and entice a child with inchoate favors, valuable experiences, promised future
benefits, meals, or other gifts” without facing prosecution, “deterrents against traveling
internationally to sexually abuse children would be significantly weakened.” Park, 938 F.3d at
369.
Rather than undertaking the normative analysis of whether the statute enacted by
Congress is rationally related to the implementation of the Optional Protocol, the opinion again
relies on a recitation of history, here pointed to proving that the Founders would not have placed
in the Constitution “a hidden power to ‘overleap the bounds’ of all the other powers in that
Article.” Op. at 12. In addition to my objections regarding the limits of historical interpretation,
the opinion’s concerns about the dangers of Congress’s treaty power overlook the constraints on
that power embedded in the Constitution and our case law. As the D.C. Circuit noted in Park,
“[t]he government may not simply point to any tangentially related treaty to defend a
constitutionally suspect statute.” Park, 938 F.3d. at 369. First, a valid exercise of the Necessary
and Proper Clause requires that there be a “plain” connection between a “legitimate” treaty and
the implementing statute. McCulloch, 17 U.S. (4 Wheat.) at 421. Second, valid implementing
legislation cannot be “prohibited” by the Constitution and must be in accord “with the letter and
spirit of the constitution.” Id. The majority’s disagreement with Justice Holmes’s controlling
opinion in Missouri v. Holland does not change this assessment, particularly with respect to
§ 2423. Though Holland’s recognition that the preeminent importance of foreign affairs and
federal flexibility in responding to international issues still rings true, see 252 U.S. at 435, the
Court has also clarified that “no agreement with a foreign nation can confer power on the
Congress, or on any other branch of Government, which is free from the restraints of the
Constitution,” Boos v. Barry, 485 U.S. 312, 324 (1988) (quoting Reid v. Covert, 354 U.S. 1, 16
(1957)).
I am troubled by the notion that anecdotal “historical” statements impart the ability to
speak with confidence about how the Framers of the Constitution would have considered the
particulars of a current case. Even if I put aside the very real methodological concerns about this
No. 20-5688 United States v. Rife Page 29
type of quasi-historical analysis,5 we are still left with the unrealistic assumption that all the
human factors that render “our own world so messy and confusing” were somehow absent from
the time of our nation’s origins. Kramer, supra, at 401. Humanity being what it is, I am inclined
to agree that in those times, as in our own, there is “seldom complete consistency, much less
consensus.” Id. As a result, I think that our efforts to resolve such difficult decisions of first
impression should entail two practical constraints: first, that we recognize the limitations of our
ability to draw controlling historical conclusions; and second, that we honor judicial precedent
by undertaking the traditional methods of analysis relied upon in those precedents.
At the close of the Constitutional Convention in 1787, Benjamin Franklin remarked that,
although he disapproved of aspects of the Constitution, he would not be in haste to pass public
judgment because “[f]or having lived long,” he had “experienced many instances of being
obliged by better information, or fuller consideration, to change opinions even on important
subjects, which I once thought right, but found to be otherwise.” 3 The Records of the Federal
Convention of 1787, at 641–42. Our preeminent Founding Father explained to his colleagues,
“[T]he older I grow, the more apt I am to doubt my own judgment, and pay more respect to the
judgments of others.” Id. at 642.
Our nation has had over 200 years to interpret our Constitution. Throughout those many
years and cases, the justices and judges in our third branch of government have taken to heart the
5See Kramer, supra, at 407 (“Yet originalism still depends on a historical claim to justify
its authoritativeness: the claim that what today’s interpreters say is what the Founders enacted.
And insofar as the originalist interpretive method unavoidably involves a creative act by the
modern interpreter—that of completing an argument that may have been unfinished when the
Constitution was adopted—this link is just as unavoidably broken. At that point, there is literally
no difference between what an originalist does and what is done by the most anti-historicist non-
originalist—except, of course, for the results (each approach producing its share of outcomes that
adherents of the other approach view as bizarre, made up, and unjustifiable).”); see also Adrian
Vermeule, Common Good Constitutionalism 92–99 (2022). Methodology aside, it is interesting
to note that even Thomas Jefferson voiced concern about letting the legal analyses of one
generation have an iron grip over all subsequent generations. See Letter from Thomas Jefferson
to James Madison (Sept. 6, 1789), in 15 The Papers of Thomas Jefferson at 392–98 (Julian P.
Boyd & William H. Gains, Jr., eds., 1958). Jefferson recognized that “original understandings
are binding for a time but then they lose their force.” David A. Straus, Foreword: Does the
Constitution Mean What It Says?, 129 Harv. L. Rev. 1, 57 (2015).
No. 20-5688 United States v. Rife Page 30
admonition of Founding Father Benjamin Franklin. We have received new or better information
that, on occasion, has led us to change our opinions and to pay respect to the opinions of others
on what that venerable document means. I would therefore follow the process developed by the
judiciary over time. When I employ here those principles found in case law handed down from
the Supreme Court and the guidance from our sister circuits, I reach the same ultimate result as
the opinion. In doing so, however, I follow a different path (as to process and substance) that
leads me to conclude that both the treaty power and the Foreign Commerce Clause provide the
constitutional support necessary for Rife’s conviction under § 2423. I therefore respectfully limit
my concurrence to the judgment in this case.