only the states possess a general police power in the federal government does not as were instructed in morrison this circuit has addressed this issue in the context has addressed the statute in the context of a prior panel decision the al malik decision which addressed constitutional concerns and of the foreign commerce clause unfortunately in that case the appellant did not preserve the issue and it was reviewed under plane  deciding that case the panel the previous panel noted that there was a split in the circuits and thus it cannot find that there is plane there but again if they are maliki panel decided that the issue was or that the that that panel was bound by other decisions of the circuits that had decided the issue it would have applied the law of course the six circuit is not bound by the decisions of other circuits the district court below instead of addressing the foreign commerce clause issue that was presented decided that the so that subsection c was constitutional under the treaty power as implemented by the necessary and proper cause of the doesn't have a more expansive damba interstate commerce clause particularly here in we're in a situation in which the other country saw friends have asked for us matter so there are two powers that your question has implicated here and plainly mr wright's conduct was noncommercial conduct so the commerce clause doesn't reach it at all the if you look at the text of the of this clause in the in the constitution it uses the term commerce that applies both to all three of the interstate commerce or commerce and commerce with the indian tribes  however with respect to foreign commerce and india and congress of the indian tribes they used to work with instead of among so i know that there's a tendency to borrow from interstate get a case on case law but the issue is what the difference between with and among means that's where we start from if you look back at what the framers were intending when the constitution was drafted the the word among is chiefly to designate the federal government scope of activity between commerce between the states so the idea of federalism is born out of the idea of sovereignty the issue with the commerce clause is that we have not been invited to in this particular instance so the treaty that is supposedly implemented the optional protocol deals only with commercial sex crimes child prostitution child slavery and trafficking these are all commercial aspects of this treaty there is a separate area that the united states expressly did not join in the convention on the rights of the child that would touch  on child sex abuse that doesn't have a commercial component and we are not party to that treaty and we've resist to join in the treaty well i'm i'm so troubling with where your answers don't mind because we have such a long history of recognizing that recognizing that commerce can be impacted even local way to view these all the way back from wickard in the forty's and wage in two thousand and five those were claims on local activity and yet on both of those were considering the impact whether there is i think we said whether congress has a rational basis for concluding that the activity would have a substantial effect on commerce that's right why doesn't that answer the question let me come back to the issue about federalism is the issue of sovereignty we call it federalism but it's the sovereignty of the states the same issue of what can you do within the boundaries of a sovereign entity applies here what can you do within the bounds boundaries of a of a commodity marijuana that doesn't have anything to do with a sexual act even an you know what from the time of wickard the view of the commerce clause was quite expansive but that was reined in by lopez lopez says the commerce clause is not without limits and then in two thousand when morrison was handed down the court told us that you cannot aggregate violent offenses these would be considered violent offenses for purposes of the commerce clause this is not a situation in race they're looking at regulation of drugs basically they're not looking at the criminal aspect of marijuana possession in fact if marijuana had been legal if it had been not been a crime to possess marijuana race would have been decided the same way because congress can regulate drugs and interstate commerce business or i don't want to interrupt you or your  the let's say that the executive reaches agreement on a treaty regarding the rights of women and and so the signatories to that agree that they're going to have certain minimum texans and standards regarding the rights of women in their respective countries and assume further that  this obligation itself requires the united states to enact among other things a law identical to the violence against women act all right and this is after  would congress then because a country has invited us to do this to regulate our citizens in a particular manner does that mean that that the congress in this example would then and under the under congress's power to enact laws necessary to carry out troops would congress then be able to do under this clause what the supreme court said it cannot do under the co no it cannot and what judge what you're raising is a concern that was raised by justices alito and thomas in the bond case it's basically bypassing the supreme court's authority to rule on constitutional issues as frank well is i mean isn't it isn't it bypassing the whole idea that the constitution prescribe government a limited powers exactly that's that's really the backstop here it's not federalism i mean you know federalism you know there are provisions of the constitution that that that allow federalism to rise but i mean the supreme court recognized the back case that there could be a treaty to regulate something that congress would necessarily have the power to regulate on it's own right isn't that what that case stands for i don't believe the treaty power is not a congressional is not a power of congress the power that's really used here is the necessary and proper clause and there are limits to that power but i mean it has to be  necessary it has to be related to whatever treaty that it's that it's implementing and proper includes that the the law the statute that is an acted by congress fits within the spirit in the letter of the constitution so why have necessary to to the treaty here the treaty has to prove that commercial exploitation of  minors right granted this was not commercial but why couldn't he say though having out a climate a legal climate of no busy no d american citizen abroad should be engaged in sexual conduct with minors why couldn't why isn't that rationally related to the treaty well we're we're taught in morse in that you can't relate those things it's not a it's not an economic issue and the power to act in the hands of congress has to come from some power that's expressed in the constitution mr inman let's say that the executive you know goes off in a flyer and agrees to a treaty that in effect requires the passage your bills of attainder against certain people in the united states all right is there any quote valid treaty within the meaning of justice holmes terse to the point of cryptic sentence in missouri beyond i don't believe and why is it not a valid treaty well even in this context we're looking at at the the crux of this the commercial crimes that are involved with this treaty you could take the you could take this extension of jurisdiction or authority over citizens abroad and apply it to citizens domestically we don't have to find a crazy i pathetically to to look at the danger here so where government where the federal government doesn't already have the power to criminalize this conduct you know adopt a purely domestic sexual abuse or good morning your honest man please the court so your austin the united states more i'd like to start with the concept of federalism versus sovereignty and talk a little bit about international law and how that fades into  what we're talking about there the constitution that it's framing was mediating the relationship between the states and the newly formed federal government foreign sovereigns are not a party to that relationship international law  right now you would agree that the constitution also was i mean its principal purpose actually was to limit the powers that this new federal government government had under the articles of confederation but i mean here we're coming out of the you know the the framers have have just emerged from the struggle in which they rejected the claims of parliament to absolute power unlimited power and the problem there was the british constitution as great as it is with its internal dynamics they didn't write down the limits on government power and so then then parliament presumes to assert what would it called sovereignty which is absolute power and so i'd let me just ask again because this would be an extraordinary position i think the government agree it's not a relative question about the powers under the articles of confederation would you agree that the constitution limits the powers of the government mean is it is it the government's position that the federal government has has in fact absolute power over americans when they leave the bounds of this country by way of this tre i think it depends on the facts of the situation but i don't think it's not an obscene up our they can prescribe any rule of conduct whatsoever with respect to americans overseas and that's that's ok american citizen is there any example of anything that you would say that would go too far as far as the tree powers absolutely are reverses covert the federal government cannot enter into a treaty that kerry that's the rights certainly i think it would be a very close question if there were some st amendment type crimes things that are in fact illegal in other countries that are protected by the st amendment  beyond i mean anything that would be implicated i would think it criminal i you know providing counsel to terrorists or something like that and so it think you know talking about the bill of rights yes if you're talking about and you know that we're not allowed to send our events into foreign countries uninvited so and if another country is unwilling to assist or allow the prosecution it wouldn't matter what the statute says we can't be sending f b i agents to countries that agree that a valid treaty a tree is not valid if the government would agree to exceed the limits of its constitutional powers i think is what you said  not well i mean apart from you know certain affirmative rights are granted under the constitution the bill bill of rights the emirate of powers that are granted say under article one or even the president's powers vested under article two those we can all agree that those have some boundaries right i mean like you know the interstate commerce power has some boundaries the foreign commerce clause has some boundaries a the court hasn't really spelled those out in the same way but they have some boundaries and so if if the president let's say those boundaries you know under the foreign commerce clause those will call those boundaries x and the president then enters into an agreement where he agrees to regulate the conduct of american citizens overseas to the extent of x plus ten so i mean isn't it isn't the treaty then invalid with respect to the plus ten to the extent it's exceeding the power of congress to regulate citizens overseas there's no unless i'm missing something there doesn't seem to be any  power vested by the constitution into one of the branches that allows the government to do to united states citizens the plus ten or ok i understand your question i think ok there is the crew treaty power extent see it seems i guess this is really an interesting case because it's about st principles you know and some often we get to to write on a slate that is as clean as this woman's but it would seem to me that the treaty power is is a power of the president and missionary at least to enter into agreements under which the the the federal government agrees to exercise its constitutional powers in certain ways that we might might agree that that pursuant to the commander in chief power going to have one hundred thousand soldiers in okinawa and through the appropriations power we're going to to pay a certain amount of money to the japanese government each year and we might have another treaty where we know lower tariffs or we have agreed to provide certain aid in exchange for some some benefit all of these are exercises of actual you know enumerated constitutional powers but it would seem like that that the executive enact the violence against women act here in the united states i mean the hype is hypothetical i mentioned earlier i mean would you agree that that tree let's say we have a treaty it's a psych we're going to we're going to an act of violence against women act in the united states we really want to get that down the court struck it down we have found a willing willing treaty partner and we're going to have this reciprocal agreement each of us is going to pass that so now we go back so now can congress lawfully pursuant to this you know power to enact laws necessary to carrying out a treaty can they now do can they basically overrule morrison and that that law that's kind of that's what i'm driving at and it seems to me that when you talk about plenary power and you're you're kind of assuming that the executive has this like absolute power to enter into treaties and everything's valid and then congress to do whatever we want short of violating like something in the bill of rights but i'm suggesting that if the government can't go beyond it can't be valid if it goes beyond so let me just i'm sorry for the speech it's kind of a long set up but so what do you think about that violence against women tree in that hypothetical ok so i think that response the st is that under missouri versus holland yes and i think that exactly what the tree at issue and how it is it's dealing with something that's purely in trust that it couldn't be passed absent the treaty but because of the treaty it can seconds even if you think the violence against women act treaty is on the other side of the line you can draw the line between treaties that deal in their subject matter with internal matters and with a problem that is what will in each or the treaty here deals with a global problem the sex tourism sex trafficking child exploitation problem that by its nature crosses international boundaries so that treaty it is very akin to the treaty in holland where we're talking about the birds that are migrating back and forth across international people who have finished serving their federal sentences really because they were at one point in federal custody and if you look at the founding this idea that we would attach that to a watch even federal criminal law to the actions of u see the outcome of what we might be talking about but also here it seems to me that line drawing is the make potatoes of judging and what w law that tells us how to look at this as apply challenge look at it on the facts that it has the question for many years what tests apply and i don't think that we can just look at this just look at this and in the largest scheme of stein's in deciding because we do have tests that  and what our losses are as if as there has to be as in drawing on the commerce concept because that's the issue here is there any is there any commerce going on well is there a substantial  as far as the record indicates the abuse occurred during apostol during the school day and then you have this connected to the broader market or child sexual abuse that we have evidence congress was aware is driven in large part by americans traveling abroad we have other countries asking united states to get involved here and i think also you can consider not just the commerce but the commerce and the treaty working together that this is  a we don't have to pigeonhole the power that congress is exercising it can be a broader synergy of powers that are working together to actuate especially international relations which is  conviction so i mean that that example really doesn't tell us anything about the scope of the foreign commerce clause the logan act nobody has been prosecuted under that unlike centuries if i recall right nationals based on the nationality principle of international law was not crazy for an idea to the framers this was something that was established and within the wheel house it's something that you think that and the logan act if you think about that it's tonight for you know two centuries isn't necessarily exhibit a for a robust power of congress to direct you play american citizens overseas let but let me let me follow up on judges judge tranches question which is you know very the issue she raises a very important in this case i guess i have an antecedent question that to that which which is i'm not seen in any supreme court precedent or precedent from th look back from you know the history of a country that extended the wickard rule to the foreign commerce clause i mean nothing set i don't i don't think we're bound to say that wickard applies in this case is is frankly when i'm suggesting and i just obviously want to give you a chance to say no you can't do that because you are bound over here there are two responses to that the st is what the supreme court has said indicates a broader work the end of power and so i think if you take those statements even at face value i don't think you have to be very far to say that the interstate five or the four and five is incompetent at least what's in the interstate that is a bigger circle and that's what every other court of appeals to address this has also helped so it you know i need to look at japan airlines i mean that you know here we have a footnote twelve or thirteen or whatever where justice wickard regime to the extent he saying that the the foreign commerce clause powers greater than the i mean we're talking about the comparison is is with two utterly different things i mean you know if james madison said he thought the foreign commerce clause is greater than in the interstate commerce clause i'm quite certain he was not thinking about the what the interstate commerce clause was turned into post where and so doesn't that i mean if if if if we're going to talk about history as japan airlines sort of you know into mates i mean that would seem to be a pretty obvious historic conclusion that well you know they can you know if we're talking about you know if we trustees of the university of illinois yes that is the case you were talking about it does does quote givens but says pretty clearly the principle of duality in our system of government does not touch the authority  congress and the regulation of foreign commerce so i guess the question becomes are those grounded principles that still can be both  circumscribed and state power of the congress asked created through our constitution that have now been further honed to the tests that we see and r have requested our assistance and not objected to the law being passed does do all those things not play into the tests that have been stated in our high school that's exactly right your honor and i want to point out again the idea that the test here is whether there is any rational relationship between this statute and either foreign powers or this treaty or the two of them working together and so you can take that holistic approach and say  be us arguing that this is commercial because sexual abuse victims need therapy afterward and that's not our argument is that there is a thriving market commercial market for the sexual exploitation of children particularly in countries like cambodia and that the non commercial or here's where we cannot prove beyond a reasonable doubt that money changed hands sexual exploitation of minors it's part of that market the fame way that raged and records say that the you know purely local production is part of the market the way that this bridge has said that child pornography even produced in one person's home is part of the market so i think that there's ample faith in those  in fact that all of these presidents together compel the conclusion that this statute is constitutional especially when we're talking about the deference owed to congress both in terms of the constitutionality of statute and in the foreign relations realm child's sex abuse and in grooming techniques is related to the passage of consideration that not that is not usually considered consideration in commerce it's not the purchase and paying much for a sexual favor it is the provision of consideration bet if in fact consideration and gifts and promises and grooming techniques and help with family mean this is the classic situation in child sexual abuse doesn't it is in fact implicating commerce yes i would say that's precisely right as the d c circuit explained in the heart case that we're talking about closing these loopholes where there is you know the treaty is talking about any form of consideration which i think does encompass the type of grooming you're talking about but that's not in compassed within the two thousand four hundred and twenty three b we need to prove quite a pro quo beyond a reasonable doubt and so here we're closing the loopholes we're trying to make a comprehensive regulatory system and i would point out we're looking at the market that it's not unusual for defendants to engage in both commercial and noncommercial conduct in the blanket case from the rd circuit prostitution paper trav prostitution so this isn't some made up link that the markets are connected that the particular generation of the scientific evidence that children who are abused austin be most of what he just said there and i think everyone would agree that congress can regulate the channels of caught commerce and say that those channels of commerce cannot be used to commit these terrible crimes which you know are in fact being committed i mean no no question about it but i get you know again this case this is a fascinating case because it goes to the question you know are the federal government's powers limited or not are they limited were are they absolute and so my question is let's say let's take it out of this particular sort of you know provocative cont use the channels of foreign commerce travel in they travel and they go over and do whatever financial crimes in different places but is it with respect to trying to stop that crime is there a limit on caught and is there a limit to congress power with respect to bring criminal cases let's say you know you have people americans overseas who at some point commit these financial crimes all right and obviously part of that they trap is is there any limit to the government's ability to prosecute any american overseas who has traveled to get there to commit these crimes i mean so that the american travels say the americans never even heard of this crime before the american travels without any intent minute crime the american goes over there and and resides there and i know you know that maybe isn't exactly the government's view with the facts of this case but you know is there a limit to how long after the american becomes an expatriate  moves over there and then later commits the suspense twenty years later i mean can the government still swoop in and say well you know this is a terrible thing we've got to close all the loopholes and you know this is necessary and proper and just no court's decision and black mirror suggest the answer is yes ok say that i retaining your us citizenship you refuse the obligation of citizenship which you have allegiance to the united states and the laws of the government of i to you the nd is that i agree with you that the federal government is the government of limited powers i just think this is within the limit and that's because the limit is not tiny it's a big limit but it is a limit and the limit is the scope of the necessary and proper clause which if you look at justice scalia's concurring opinion and race he's talking about what's necessary and proper what's he to actuate the regulatory regime and so he's saying yes if you can close the loopholes because if if we even the loopholes makes the regulation ineffective then there's more that could be done and i think that is another important point that this is about what could be done not about what must be the u s you know not international obligation and international law sense but of their you know what the treaty is in visioning countries doing to solve the problem and you see that in the dialogue between united even if you want to say that not every prosecution under this statute is within the realm of this prosecution certainly and that's the rational relationship again that we're you know congress doesn't have to make explicit binding they don't have and i just want to address a few things that that were said the idea that the the constitution granted was a shift from the articles of confederation to grant the federal government authority in the sphere of foreign commerce is about speaking with one voice and it's just heart said in the th circuit it's not about giving the federal government a megaphone so how much power are we giving when we say that in relation to the states the federal government controls foreign commerce that's really what yes you have to i'd stand your sentiment what's really causing me to  interpreted to allow for the federal government to enter into treaties to do things that it couldn't couldn't do otherwise without the treaty but there's there's two things one misery beyond was another issue about the states exercising a power that was reserved to the federal government it doesn't say anything about you know it's us citizen or broader the scope of the foreign commerce clause with respect to u s citizen abroad the other issue is that if you're talking about treaties that are implemented the treaty that was implemented here has nothing to do with the noncommercial sex act there's an entirely separate treaty the convention on the rights of the child that does address that that the government expressly decided not  to join and when the the precursor act were to go off on that point mr in then i'm just trying to keep up with the conversation here so what what sentence in missouri v hollander are we talking about here that i mean you know i'm looking at it but i'm not i'm struggling to see dissent set purports to give the government absolute power to agree to anything it wants with respect to the regulation of americans overseas i see a reference to valid treaties but what sentence are we talking about just so i can and well with the issue is i don't see that there are i mean is there any holland says that a treaty cannot be valid if it infringes the constitution that there are limits therefore to the treaty making power it doesn't describe what those are and it can't delegate powers reserved to the states it can't violate other provisions of the constitution so there are limits on the treaty power and even missouri holland recognizes that my point is that in a typical fashion missouri v holland is another case involving a state attempting to assert a power that is reserved to the federal government so you have a dispute about the powers of the states versus the federal government the same applies in japan line it's a dormant forming foreign commerce clause case where we're dealing with that how we measure the power of the federal government versus the states they don't address they don't address the situation where a treaty is and acted and whether using international principles of you know universal principle or the protective principle any of those principles could be argued to to to reach u s citizens or ever they are and that's just not we have a limited federal government that's just not how the constitution works so you know we talk about whether or not there there's a treaty that's an acted optional protocol deals with commercial access isn't as applied challenge there's nothing commercial about this conduct the the suggestion that mr rife was grooming or doing any of the stuff is not in the record of this it's written in the p s r and there is no objection and that's considered a fact that the change it's also a fact of the case that the government agreed that this was noncommercial conduct and even if even if there was some instance of grooming or or there's nothing to suggest enco it favors or anything like that but if there's some instance of grooming or anything like that it doesn't rise to the level of commerce i think in the sebelius case recently the supreme court said that the fact that you transact business using u s dollars if you have a bank account or you do all these other things does not does not give the federal government power over you from cradle to grave so not every act is a commercial act and that's certainly what morris is that violent offenses offenses such as the ones we're talking about here today are not commercial acts in lopez it was the same thing we're looking at possession of a gun within our many feet of a school not a commercial act you might you might suggest that these are criminal acts but they're not commercial and i do want to address part briefly if i may in park the the d c circuit struggled with the foreign commerce clause issue just as i can tell this panel is struggling with that but they did note that child sexual abuse may not be quintessentially economic in every case so i appreciate that the government believes that this case is similar to park but the gentleman in part was using a tutoring service he was advertising a tutoring service to attract victims that's not the situation here and that seems to be in an as applied challenge in part that seems to be the tipping point for that that court as as to why it was commercial but even they acknowledge that not every case involving sexual abuse of a child is commercial any further questions a remarkably good job in this case both in your briefing and in your argument and and i would say that is true for the government as well and so on behalf of the panel i want to thank