Baston v. United States

• Decision Date: 06 March 2017
• Docket Number: No. 16–5454.,16–5454.
• Parties: Damion St. Patrick BASTON v. UNITED STATES.
• Court: U.S. Supreme Court

137 S.Ct. 850 (Mem)

197 L.Ed.2d 478

Damion St. Patrick BASTON

v.UNITED STATES.

No. 16–5454.

Supreme Court of the United States

March 6, 2017.

The petition for a writ of certiorari is denied.

Justice THOMAS, dissenting from the denial of certiorari.

The Constitution, through the Foreign Commerce Clause, grants Congress authority to "regulate Commerce with foreign Nations." Art. I, § 8, cl. 3. Without guidance from this Court as to the proper scope of Congress' power under this Clause, the courts of appeals have construed it expansively, to permit Congress to regulate economic activity abroad if it has a substantial effect on this Nation's foreign commerce. In this case, the Court of Appeals declared constitutional a restitution award against a non-U.S. citizen based upon conduct that occurred in Australia. The facts are not sympathetic, but the principle involved is fundamental. We should grant certiorari and reaffirm that our Federal Government is one of limited and enumerated powers, not the world's lawgiver.

I

Petitioner Damion St. Patrick Baston is a citizen of Jamaica. He forced numerous women to prostitute for him through violence, threats, and humiliation. One of his victims, K.L., was a citizen of Australia. She prostituted for petitioner in Australia, the United States, and the United Arab Emirates before escaping from his control. While in the United States, petitioner was arrested and charged with the sex trafficking of K.L. by force, fraud, or coercion, 18 U.S.C. § 1591(a), " ‘in the Southern District of Florida, Australia, the United Arab Emirates, and elsewhere.’ " 818 F.3d 651, 658 (C.A.11 2016). As relevant here, § 1591(a)(1) states that the sex trafficking must "affec[t] interstate or foreign commerce." Congress has granted federal courts "extra-territorial jurisdiction" over sex trafficking if the "alleged offender is present in the United States, irrespective of the nationality of the alleged offender." § 1596(a)(2).

After a jury convicted petitioner, the District Court ordered him to pay K.L. $78,000 in restitution, which included the money she earned while prostituting for petitioner in the United States. See § 1593 (requiring sentencing courts to order restitution in "the full amount of the victim's losses" for offenses under § 1591 ).

But the court refused to include in the restitution award the $400,000 that K.L. earned while prostituting in Australia. In the court's view, the Foreign Commerce Clause did not permit an award of restitution based on petitioner's extraterritorial conduct. 818 F.3d, at 657, 660.

The Court of Appeals vacated the order of restitution and remanded with instructions to increase the award by $400,000 to account for K.L.'s prostitution in Australia. The court reasoned that whatever the outer bounds of the Foreign Commerce Clause might be, this Court has suggested that it has at least the same scope as the Interstate Commerce Clause. Relying on our Interstate Commerce Clause precedents, the Court of Appeals concluded that the Foreign Commerce Clause grants Congress power to regulate "activities that have a ‘substantial effect’ on commerce between the United States and other countries," including sex trafficking overseas. Id., at 668 (citing Gonzales v. Raich, 545 U.S. 1, 16–17, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005) ).

II

The Court of Appeals correctly noted that this Court has never "thoroughly explored the scope of the Foreign Commerce Clause." 818 F.3d, at 667 ; accord, e.g., Goodno, When the Commerce Clause Goes International: A Proposed Legal Framework for the Foreign Commerce Clause, 65 Fla. L. Rev. 1139, 1148–1149 (2013) ("The U.S. Supreme Court has not yet articulated the extent of Congress's power under the Foreign Commerce Clause to enact laws with extraterritorial reach. Because of this lack of guidance ... lower courts are at a loss for how to analyze Foreign Commerce Clause issues"). The few decisions from this Court addressing the scope of the Clause have generally been confined to laws regulating conduct with a significant connection to the United States. See, e.g., Board of Trustees of Univ. of Ill. v. United States, 289 U.S. 48, 57, 53 S.Ct. 509, 77 L.Ed. 1025 (1933) ("The Congress may determine what articles may be imported into this country and the terms upon which importation is permitted"); United States ex rel. Turner v. Williams, 194 U.S. 279, 290, 24 S.Ct. 719, 48 L.Ed. 979 (1904) ("[T]he power to regulate commerce with foreign nations ... includes the entrance of ships, the importation of goods, and the bringing of persons into the ports of the United States"). This Court has also articulated limits on the power of the States to regulate commerce with foreign nations under the so-called dormant Foreign Commerce Clause. See, e.g., Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 449–454, 99 S.Ct. 1813, 60 L.Ed.2d 336 (1979). We have not, however, considered the limits of Congress' power under the Clause to regulate conduct occurring entirely within the jurisdiction of a foreign sovereign.

In the absence of specific guidance, the courts of appeals—including the court below—have understandably extended this Court's Interstate Commerce Clause precedents abroad. In United States v. Lopez, 514 U.S. 549, 558–559, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), we held that Congress is limited to regulating three categories of interstate activity: "the use of the channels of interstate commerce," "the instrumentalities of interstate commerce," and "activities that substantially affect interstate commerce." Some courts of appeals "have imported the Lopez categories directly into the foreign context," some "have applied Lopez generally but recognized that Congress has greater power to regulate foreign commerce," and others have gone further still, "holding that Congress has authority to legislate under the Foreign Commerce Clause when the text of a statute has a constitutionally tenable nexus with foreign commerce." United States v. Bollinger, 798 F.3d 201, 215 (C.A.4 2015) (internal quotation marks omitted); see also id., at 215–216 ("Instead of requiring that an activity have a substantial effect on foreign commerce, we hold that the Foreign Commerce Clause allows Congress to regulate activities that demonstrably affect such commerce").

III

I am concerned that language in some of this Court's precedents has led the courts of appeals into error. At the very least, the time has come for us to clarify the scope of Congress' power under the Foreign Commerce Clause to regulate extraterritorially.

A

The courts of appeals have relied upon statements by this Court comparing the foreign commerce power to the interstate commerce power, but have removed those statements from their context. In certain contexts, this Court has described the foreign commerce power as "exclusive and plenary," Board of Trustees, supra, at 56–57, 53 S.Ct. 509 (citing Gibbons v. Ogden, 9 Wheat. 1, 196–200, 6 L.Ed. 23 (1824) ), explaining that Congress' commerce power "when...