The Long Arm of U.S. Law Stretches to Asia
U.S. law can reach American sex offenders abroad so long as they haven’t resettled in another country, according to a federal appeals court. The decision, issued last week, extends U.S. law beyond its borders through an expansive interpretation of Congress’s authority under the Constitution’s commerce clause. It bucks the U.S. Supreme Court’s recent trend of limiting laws’ reach abroad, at least in part because of the powerful desire to condemn sex with minors. But as a precedent, the decision will apply to other, more ordinary crimes committed by Americans abroad, with potentially troubling consequences.
The case, U.S. v. Schmidt, arose under an unusual 2003 law called the PROTECT Act. As initially enacted, it applied to an American or green-card holder “who travels in foreign commerce” and has sex with anyone under the age of 18. Its purpose was to criminalize Americans traveling to engage in sex with underage prostitutes. An earlier law made it a crime to travel abroad with the intent to engage in sex with a minor; the PROTECT Act made conviction easier by skipping the intent requirement.
Richard Arthur Schmidt is, on the face of things, the very kind of person the law is aimed to cover. A federal district court referred to him as a “sexual predator,” who had been convicted of multiple sex offenses involving young boys going back to 1984.
In June 2002, after allegedly contacting a minor in violation of his parole, Schmidt fled the U.S. for the Philippines, where he got a job as a teacher. Arrested by police in the Philippines and accused of sexual molestation, Schmidt skipped bail and ran again in December 2003, this time to Cambodia. He was arrested in Cambodia, where he again engaged in underage sex, and was deported to the U.S. to face criminal charges. The pattern suggests that, depending on your perspective, Schmidt is either a monster or an extremely ill person, or possibly both.
Schmidt pleaded guilty to violating the PROTECT Act, and was sentenced to 15 years in prison and a lifetime of supervision. But after pleading, he went back to the district court and argued that he wasn’t guilty of the crime as defined, because he wasn’t traveling “in foreign commerce.” Schmidt admitted that he was traveling in foreign commerce at the moment when he reached the Philippines, but maintained that while there, he was no longer doing so -- and that he certainly was not traveling in foreign commerce once he went on to Cambodia.
The district court agreed with Schmidt and vacated his sentence. But the U.S. Court of Appeals for the 4th Circuit reversed the district court, holding that Schmidt was traveling in foreign commerce the entire time.
Defining travel in the statute, the court relied on what it called colloquial use of language. It held that a person could be “traveling” until he either returns home or is resettled elsewhere.
The court went on to interpret the words “in foreign commerce” using the commerce clause of the Constitution, which gives Congress the authority “to regulate commerce with foreign nations, and among the several states.”
Considering the meaning of the Constitution, the court said that “foreign commerce requires some nexus with the United States.” Weighing the law’s reach, the court concluded that “this makes sense: the United States cannot go around prosecuting … those with no real connection to this country.”
To determine Schmidt’s ties to the U.S., the court insisted that although Schmidt obtained a work permit in the Philippines, got a driver’s license, rented a house and took a full-time job, he was nevertheless still on a form of tourist visa while in the Philippines. He was also on a tourist visa in in Cambodia. The court mentioned as well that he left behind bank accounts in the U.S., but not in the Philippines.
Schmidt said that he never intended to return to the U.S. -- which is easy to believe, because he was wanted for his parole violation. The court said that his intent to resettle permanently somewhere else might be relevant but didn’t conclude the issue. It’s fair to say the court gave short shrift to all the indications that Schmidt was no longer traveling from the U.S. but had made every effort to resettle in the Philippines.
The upshot of this expansive holding is that, according to the court, the Constitution would permit criminalizing almost any conduct by Americans who are abroad indefinitely unless they could definitively show that they were permanently resettled in the foreign country. Establishing a residence wouldn’t be enough to make that showing, it would seem. The connection to the U.S. could be very minimal, as it was for Schmidt.
The “traveling” part of the decision is in a general sense at odds with Supreme Court precedent in recent years that has limited Congress’s reach. To be sure, Congress clearly intended the PROTECT Act to extend to conduct abroad, which wasn’t always the case in other situations. What’s more, other countries are unlikely to be bothered by a U.S. law that criminalizes conduct by Americans, not their own citizens.
The “in foreign commerce” part of the decision is also extremely broad in that it requires no economic connection to the U.S.
It’s hard to escape the conclusion that the 4th Circuit was so repelled by Schmidt’s conduct that it was eager to apply the statute to him.
As the adage goes, however, hard cases make bad law. It’s not advisable, legally or constitutionally, for the U.S. to seek to govern the conduct of its citizens when they’ve gone abroad with no intent to ever return home.
The acronym stands for Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today.
The law was later amended to include an American or lawful permanent resident who “resides, either temporarily or permanently, in a foreign country.”
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
To contact the author of this story:
Noah Feldman at email@example.com
To contact the editor responsible for this story:
Stacey Shick at firstname.lastname@example.org