this case is truly unprecedented no court has ever held that the foreign commerce clause authorizes the united states to prosecute wholly foreign criminal activity bearing no connection to the united states what the government is seeking from this court is an unrestrained global jurisdiction over every incidence of drug trafficking anywhere in the world as broad as the commerce power is it is not without its outer limits and those limits are found in the text article one grants congress the power to regulate commerce with foreign nations this does not encompass the power to regulate commerce among and between nations for transactions not involving the united states and it is not a global police and prosecutorial power the government's argument in this case eliminates what is called what the supreme court has termed the necessary predicate to the exercise of the power with respect to the foreign commerce clause that necessary predicate is a relationship with the foreign nation there must be some connection between the foreign nation and the united states that necessary predicate cannot be made up for by a substantial effect on the united states and we know that from national federation of independent businesses versus  yet in existence the power to regulate presupposes the activity being regulated in this case the power to regulate foreign commerce presupposes the commerce between the united states and the foreign country the court below and the government is advocating a wickard and rates rationale but that cannot apply here because the united states does not have the authority to regulate all drugs and all the world necessary to the courts analyse that are you are you negating the argument which is the wickard argument of these to the class of activities as a whole has a substantial effect on commerce with the united states for example this particular transaction you could make the argument that because drug trafficking is international if there are more drugs going into coaster reka or less drugs going to coast rica that affects the international market that's kind of the wickard argument are you saying that just won't fly no matter how substantial the effect that is what i'm saying your honor and there are reasons for it in the first is that it's not simply that it's a regulatory scheme that was key to wickard and rates it was that it was a closed regulatory scheme and what the court held was that when congress has the authority to regulate the entire class it can find that individual incidences of that class won't be exempted because they only minimus and not a substantial effect on commerce we do not have the authority to regulate all drug transactions in all the world and that is what would be required for wickard and rates to apply internationally let me ask you this the the sex trafficking statute which is as you say that's maybe unprecedented in this circumstance but the sex trafficking cases are somewhat relevant begins whoever knowingly in or affecting interstate or foreign commerce the drug the drug statute does not but if the drug statute had the same language would that allow it to be constitutional and then make it a jury issue for whether this particular is not in these facts but if the government could produce evidence that when these drugs went back to coast rica ninety percent of them were then re exported to the united states i think that becomes a line drawing activity as to where the nexus has to be found but certainly that could have been charged under the importing statute and then it would be a jury question and i think in that case the constitutional analysis would be the exact same that we use for importing statutes the fact that best known in the statute  hook has to be relevant and we know that because this circuit and i believe all circuits have continued to affirm the constitutionality of one thousand and two g the felon in possession statute after lopez and the only constitutionally significant distinction between one thousand and two jews and one twenty two q which was the statute struck in lopez was the existence of that express cook linking cases to that effect in commerce so if there were even a de minimus connection to commerce with the united states that was proven or i would say required by the statute but even proven on the facts it would be a completely different argument in the absence of such a connection the foreign commerce clause does not apply a move on to the treaties the treaties that the government has argued in this case simply do not allow for this the court recognized as a car tato that the un convention relies on domestic mechanisms and does not supplant traditional notions of jurisdiction the jamaican bilateral agreement in fact excludes this because it talks about jurisdiction seaward of the territorial sea and i would also note that the bilateral agreement defines jamaican waters and united states waters territorial waters and internal waters  defined the same way so under this theory of this treaty the the jamaican government could prosecute drug trafficking on the mississippi it simply doesn't apply i pointed to article five in the briefs it doesn't apply you mean by the language of this particular treaty or that it couldn't come within the i have i have preserved for further review the argument that the treaty power needs to be limited to article one i think that's contrary to the law of the circuit at this time my argument is it does not come within the language of this treaty so would you allow the possibility that if you were to win this case the government would try to enact at least with jamaica or with individual countries a treaty that clearly says for example you know jamaican jamaica is overloaded with drug cases and we need your help and by treaty we're going to allow you to prosecute people within our waters yes your honor under current law that would be constitutional but this treaty does not allow it the argument that the government is presented in this case eliminates the necessary predicate which is a relationship with the united states and those of no limited power it's antithetical to our system of our constitution as one good morning please the court i'm jonathan cohen on behalf of the united states with me is kevin quince or randall this matter in the district court the m d l e a is part of a comprehensive regulatory scheme through which the united states and its an international treaty partners combat the international drug trade both on foreign flag vessels and in foreign territorial waters the bastien and rates framework which are controlling authority as to the scope of congress's commerce powers and vast and makes it clear that this applies to the foreign commerce clause which passed in a lot of cases establish applies at least as far as rates help to come the domestic commerce clause would if not more but at least as much was sufficient to uphold the application of u s law to sex trafficking occur in a wholly within australia and the threshold for doing so was that congress had a rational basis for finding that the activity in the aggregate had a substantial effect on commerce with foreign nations and that is shown here exactly the same kind of findings in the drug statute the drug statute at seven i'm sorry the m p l e a statute at seven zero five zero one congress made specific findings that the trafficking of drugs on vessels w a threat to the security of the united states that's the the sex trafficking statute says affecting commerce it's a finding that the that these activities affect commerce yes there is there is not language that specifically references language that is different language but i think it is so in the records in the legislative history and before this court that the international drug trade certainly has an effect on the united states all of the documented travels through the caribbean to the united states the question is could brooke congress find rationally reason we find that in the aggregate the drug trade through the career being on vessels presents a threat to united states implicating united states interests in general not a specific nexus to this transmit stop you right there because you may be your statement may be perfectly true but is threat to u s security allow you to come within the foreign commerce clause because this is the international drug trade i think it is congress by definition the this is this court found recently the international drug trade has implications for the try me through drug organizations through which fund terrorism which affects the united states economy in a myriad of ways that was found in cars studio and in other recent unpublished decisions of this court which addressed the basis for the safety valve not applying let's say chinese pollution because certainly as we're seeing every day in the papers worrying about chinese exports to us lucian lacks pollution means they can be cheaper affects u commerce no doubt and they do that what rachel establishes and bastien in this court has established that the threshold for doing so is congress would have to rationally find that that activity and the aggregate has a threat to has an impact on congress with foreign nations now we don't have such a record as we do in this case with the drug trade they were if there was a market a hypothetical isn't that just as plausible that as i can get one hundred economists and here to say that that's exactly why we have problems in foreign commerce because of lax pollution laws lax labor laws so forth or we have problems with stock exchanges because we have swiss  colleague perhaps quite legitimately as given you two ways that you could fix this problem you might say one is a treaty with jamaica or other individual countries and the other is a jurisdictional hook like there is in this extra only go to the reason that's not good enough when we go to the treaty once i think that what exactly what my colleagues says the treaties would have to do has been done in this case i have to dispute her description of the treaty which she says does not apply to this activity i think i'm going to look at both the un convention and the bilateral agreement with jamaica specifically both of which contemplate action in the territorial waters of our treaty partner nations in the un convention refer this court to articles specifically ten in seventeen that's of the un convention but more broadly all of the it was articles three four nine ten and seventeen all contemplate cooperation to prosecute to the fullest extent of the law trafficking on vessels and with the cooperation of coastal states that's jamaica in this case and transit states through whose territory the drugs are moving transit state provision is an article ten in the coastal state cooperation is an article seventeen which specifically calls for the establishment of by a lot of what remains so that treaty partner nations can cooperate with the traffic with the prosecution of vessels with the cooperation of the coastal states that's an article seventeen so let's look at what bilateral agreement we've established with jamaica and we have forty or so bilateral agreements with countries in the caribbean and elsewhere in the jamaica but when you say forty you're talking about dealing with the drug trade or with domestic laws to effectuate this treaty and combat the trafficking of drugs on vessels to the fullest extent of the law so let's look at the jamaica treaty i'm going i'm going to be for him both of which will before this court they were submitted to this court if you look at article six and ten of the jamaica bilateral agreement to talks about cooperation in party waters yes there is a provision that talks about the rights of the of the parties in seaward waters that's the high seas but it also when article six in ten talks about cooperate shell establish a program of cooperation for operations and party waters party water to jamaican territorial waters article ten talks about cooperation of actions to enforce these these provisions in the waters and airspace of the other party meaning that one party the territorial party requests the assistance of the other as was done here united states doesn't just barge into these countries willy nilly we didn't just decide for ourselves to go into jamaica and they can request united states assistance you can request an authorized u s ships to enforce at that point it's still in force in jamaican law until they see jurisdiction under the treaty protocols when they first request assistance from the united states coast vessels usually to go in to either a flag nation and border am sorry if a flagged vessel it's the same procedure we use with flagged vessels we have to have the request or consent given by the interest foreign nation all the time this court and i'm sorry but not regularly this court has upheld the authority of the united states with the consent and request of a foreign flag nation to go into their flag vessels the same situation happens here under the m t l e a which has positions provisions for foreign flags and for foreign waters and under the to make a bilateral agreement it's article six and ten that is what happened here so to the extent that we want to justify this power because the treaty regime has called for united states to do so that's what happened here so it could be upheld under the treaty power alone deal the a and they acted before either of these two that you're focusing on yes you're on it but then it was we codified and amended to strengthen the cooperation nation was amended and that therefore repassed by congress that amendment occurred in i'm sorry two thousand and six the un convention was adopted in one nine hundred eighty eight and when congress ratified the u convention the language of the of the congressional history ratifying the treaty recognized that this treaty was the culmination of a four year effort led by the united states to coordinate this international comprehensive scheme and that for  amended in two thousand and six and i choose m m d l e a so to the extent that to the extent that this court finds that the congress would have to have acted after the treaties that was congressional action after the treaties and i think we cite in our brief also several other instances of congress acting to strengthen the effect of the m d l e a after the treaties but even so i think one the court could also find that the treaty and the the treaty and the a were part of contemporaneous congressional action congress had called and passed resolutions calling for the treaty to be completed the action of congress ratifying the u n treaty talked about this being part of the for your efforts during which the m d l e a had been enacted so i think you have both the initial and that enactment of the m d l e eight being part of this treaty process that the united states was leading and congress this calling to be completed when it enact yeah it called for this u n treaty to be completed this is all part of a contemporaneous action but even if that were not sufficient congress since the passing of these treaties has acted several times to strengthen the m d l e a and to amen specifically the provisions of cooperating with foreign nations for their consent to jurisdiction since the enactment of the treaty all of that is cited with more detail in our brief but specifically the amendments to strengthen cooperation were in two thousand  many years after the enactment of these treaties so we're here exploring the the limits of the foreign commerce clause and you certainly identified the treaty in the bilateral agreements are there other outer limits the concerns that have been raised by the by opposing counsel are certainly that this just gives the united states the ability to start intervening everywhere in the world what other limits if any are there besides the treaties the bilateral agreements ok well again it's clear that that's not what the m daley a does nor is not seeking universal jurisdiction nor is it argued or being claimed in this case we were acting under separate versions such as the protective principle which is the due process which addresses the due process limitation on the extent of the foreign treaty power these are get step question does congress have the power and then are there due process limits on the exercise of that power the protective principle limits the exercise of that power to instances where there is a demonstrated threat to the interested nation and that it is a generally condemned behavior which i think has been well established by this court which is applied the protective principle to the m d l e a in numerous cases and i quickly want to point out that although those have been in cases on the high seas the fact that the protective principle only applies to foreign flag vessels on the high seas it does not apply at all to stateless vessels on the high seas shows that the point of the protective principle is in cases of overlapping national interests be it foreign flag or in this case foreign territory the fact that it doesn't apply at all to stateless vessels on the high seas shows that the protective principle is not limited to high seas location there is nothing about the elements of the protective principle of threat to the nation generally condemned behavior that references or relies on the high seas location and in fact bastien shows that this court has applied the protective principle inside the territory of australia and it did so without referencing the fact that there were other u s ties in that case both the commerce ruling and the due process ruling and best and if you look at the page where those rulings were made in the foreign converses on six six six to six eighty eight and the due process ruling i don't have it handy i'm sorry but it is in the case both of those rulings are made without reference to the foreign ties a charge to the u s ties there is a separate alternative holding which referee would also have upheld it under us some u s ties there but that was not the basis for the commerce power nor was it the basis for the alternative due process holdings in order to get a a and that is in the language of the sex trafficking statute and that goes to the jurisdictional elements of that statute well as to the scope of the commerce power bastien and rates in other cases make clear that the scope of the commerce power stands on its own and that what is written in the constitution defines the scope of congress power and the elements under the supreme court's rage decision and this court's bastien decision which address what is necessary for congress's exercise of that power to pursuant to the constitution is that congress rationally find that it has an impact on a substantial impact in the aggregate on commerce and the international drug trade as recognizing studio does here the united states has pledged with its treaty partners to combat the international drug trade to the fullest extent of the law we have a comprehensive bilateral scheme to effect the treaty and to enforce the m d s and these convictions to be affirmed thank you want to start with the language of the treaty first of all there is no case where any court that i'm aware of and certainly not this court has ever held that general principles in a treaty are sufficient to justify congressional action and the  case and the ferry case in the loo case out of the second circuit and in the noel case that opposing counsel submitted a supplemental authority last week this court found that the statute track to the language of the treaty and all material respects it was nearly verbatim what the court said and no well the statute the jamaican treaty simply does not allow for this and even though it allows for cooperation in terms of law enforcement and each and every case where there's law enforcement action process contemplated in territorial waters of the of the nations it is contemplated to be under control of that nation and i would point the court both to article seven in article eight of the jamaican bilateral agreement paragraph three where they're talking about letting letting us ships in officers on those ships paragraph three of article seven all law enforcement activities under this article shall be under the control and direction of jamaican law enforcement officials in shelby and cut conducted in accordance with brief twice stated that jamaica consented pursuant to the treaty but the citation in the record in both of those places are the actual proffers of the plea agreements which say nothing they they great to make a consent to but they say nothing about the treaty these treaties don't affirmatively supply positive action for the united states to prosecute these individuals and say and we make a re that you can take criminals from our country and take them back to your country and prosecute them if the executive branch had had negotiated that ratified by the senate absolutely but we can't have congress then willy nilly using a treaty as a springboard to do whatever it wants with respect to the foreign commerce power congress cannot simply enacted legislation that affects foreign nations and then call it a comprehensive regulatory scheme thereby expanding its own authority under rage and rage and wickard congress indisputably had the authority to control the entire market under the interstate commerce clause both cases talk about the supremacy clause and congress's ability to reach its its its laws into an effect intrastate commerce there is no closed regulatory authority over all drugs and all the world i absolutely agree with mr cohen when he says what is written in the constitution defines its powers the foreign commerce clause only provides for regulation of commerce with foreign nations there is no limiting principle as your honor judge bob's noted in the government's argument it allows for unrestrained global destruction it leads to exactly the absurd results that have been discussed here today and the judgment of the district court should be reversed