United States of America v. Corrigan Clay

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 23-2335
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UNITED STATES OF AMERICA
v.
CORRIGAN CLAY,
Appellant
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2:22-cr-00055-001)
District Judge: Honorable Christy Criswell Wiegand
____________
Argued on June 5, 2024
Before: HARDIMAN, PORTER, and AMBRO, Circuit
Judges.
(Filed: February 3, 2025)
Tina Miller
Devin M. Misour [Argued]
Comber Miller

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436 Seventh Avenue
300 Koppers Building
Pittsburgh, PA 15219
Counsel for Appellant
Nicole M. Argentieri
Lisa H. Miller
Sonja M. Ralston [Argued]
United States Department of Justice
950 Pennsylvania Avenue NW
Suite 1264
Washington, D.C. 20530
Jessica L. Urban
Alicia Bove
United States Department of Justice
1301 New York Avenue NW
Washington, D.C. 20005
Counsel for Appellee
___________
OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
Corrigan Clay pleaded guilty to sexually abusing his
minor adopted daughter while living in Haiti, in violation of 18
U.S.C. § 2423(c). In this appeal, he argues principally that
Congress lacked the power to enact § 2423(c). In our view,

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§ 2423(c) is a permissible exercise of congressional power
under the Foreign Commerce Clause and the Necessary and
Proper Clause. Because we also conclude that the District
Court did not err in imposing Clay’s sentence, we will affirm.
I
A
Born in Oregon, Clay was raised by a loving and
supportive family. After experiencing “many years of
unresolved grief and suffering” stemming from the early
deaths of his older brother and father, Clay was “propelled . . .
into a lifestyle of service in difficult environments.” Dist. Ct.
Dkt. No. 138, Sentencing Tr. (“Tr.”) at 138. After graduating
from college, he married his first wife and the couple moved
from the United States to Germany, where they became
Christian youth ministers. They had two biological children
before moving first to Canada, where Clay obtained a master’s
degree in theology, and then to Haiti “to work in service to the
poor.” Id. While working in a Haitian orphanage, the couple
became disillusioned by its abusive environment and corrupt
staff, so they left to found their own nonprofit organization.
While living in Haiti, the couple adopted two Haitian
children. Unfortunately, the stresses of serving the poor took
“a huge toll” on Clay, causing him to “lash out at [his] children
and neglect [his] marriage.” Id.; App. 179. Around the same
time, Haiti was struck by a massive earthquake, and Clay
experienced “psychological trauma” as he tried to cope with
the resulting devastation. App. 211. His marriage deteriorated
and ended in divorce.

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B
Prior to their divorce and while still in Haiti, Clay and
his wife lived separately. They shared custody of their children,
who usually stayed with Clay on weekends. When the children
visited him, they each had their own sleeping areas except for
one of his adopted daughters. According to Clay, she usually
slept next to him in the downstairs bedroom—even if she
initially went to bed upstairs—because she would get scared
by noises.
After his divorce was finalized, Clay began to
experience intrusive thoughts, nightmares, and symptoms of
post-traumatic stress disorder. He testified at sentencing that he
felt “utterly alone with no affection . . . [in] the country that
had meant so much to [him] but had taken everything away.”
Tr. at 138–139.
Clay’s adopted daughter often wet the bed while
sleeping with him. On one such night, Clay stripped all the
bedding, and they went back to bed together with just a clean
blanket and no clothing. According to Clay, this incident
sparked his protracted sexual abuse of her. Clay claimed that
he sexually abused her fewer than 20 times over less than 6
months. The abuse ended when Clay’s ex-wife left Haiti for
the United States and took the children with her. But Clay
continued to travel to the United States with his second wife to
visit the children as much as possible.
Following a visit with Clay in November 2020, the
minor victim told her mother that Clay had previously sexually
abused her. Clay’s ex-wife confronted him, and he admitted
that the allegation was true. Clay later confessed to state and
federal law enforcement.

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C
Clay was indicted for violating 18 U.S.C. § 2423(c),
which prohibits any citizen or legal permanent resident of the
United States “who travels in foreign commerce or resides,
either temporarily or permanently, in a foreign country” from
“engag[ing] in any illicit sexual conduct with another person.”1
The statute elsewhere defines “illicit sexual conduct” to
include “a sexual act” with a minor that would violate U.S. law
had it occurred within the territorial jurisdiction of the United
States. 18 U.S.C. § 2423(g)(1) ((f)(1) prior to December 22,
2023). The indictment did not allege that Clay traveled with
the intent to engage in illicit sexual conduct or that his conduct
affected foreign commerce. During the period covered by the
indictment, Clay: (1) traveled repeatedly between Haiti and the
United States, where he owned an income-producing property;
(2) instituted adoption proceedings for his two Haitian children
in Washington state court; (3) listed an address in the State of
Washington as his permanent address when applying for U.S.
passports for his adopted children; and (4) used a Florida
address to obtain a Florida driver’s license in September 2018.
Clay moved to dismiss the indictment under Rule
12(b)(3) of the Federal Rules of Criminal Procedure, claiming
that § 2423(c) was unconstitutional on its face and as applied
to him. He argued that neither Congress’s power to regulate
foreign commerce nor its treaty power “extend[ed] so far as to
1 As Clay’s counsel conceded at oral argument, Clay can
prevail only if both the “travels in foreign commerce” and
“resides in . . . a foreign country” prongs of § 2423(c) exceed
the powers of Congress, since he pleaded guilty to an
indictment charging both prongs. See United States v. Park,
938 F.3d 354, 364 (D.C. Cir. 2019).

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allow Congress to regulate [his] entirely non-commercial
foreign conduct.” Dist. Ct. Dkt. No. 76, at 4. The District Court
denied Clay’s motion, concluding that § 2423(c) was a
constitutional exercise of Congress’s authority to regulate the
channels of foreign commerce based on our decision in United
States v. Pendleton, 658 F.3d 299 (3d Cir. 2011). The Court
declined to address the parties’ arguments on the treaty power.
After the District Court denied his motion to dismiss,
Clay pleaded guilty without a plea agreement. In his sentencing
memorandum, Clay sought a downward variance based on
“both the facts of the case and the broader legal landscape
governing sentencing under § 2423(c).” Dist. Ct. Dkt. No. 106,
at 3. The District Court denied the variance and sentenced Clay
to 235 months’ imprisonment—the bottom of the Sentencing
Guidelines range—reasoning that the sentence “appropriately
reflect[ed] the seriousness of his offense and the needs for just
punishment, deterrence[,] and rehabilitation and that it would
not lead to unwarranted sentencing disparities between . . .
Clay and others convicted under the same statute.” Tr. at 164.
Clay stated his intent to appeal the constitutional challenge he
had previously raised and also objected procedurally to the
sentence, “[i]n particular . . . the consideration of . . . avoiding
unwarranted sentencing disparities among defendants with
similar records.” Tr. at 167. He then filed this timely appeal.2
II
We exercise plenary review over the District Court’s
legal conclusions, and we review its factual findings for clear
2 The District Court had jurisdiction under 18 U.S.C. § 3231,
and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

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error. See United States v. Stock, 728 F.3d 287, 291 (3d Cir.
2013). Every law enacted by Congress must be based on one
or more of its powers, or “from them all combined.” Legal
Tender Cases, 79 U.S. (12 Wall.) 457, 534 (1870). In other
words, we may group together any number of powers and
“infer from them all that the power claimed has been
conferred.” Id. And “[d]ue respect for the decisions of a
coordinate branch of Government demands that we invalidate
a congressional enactment only upon a plain showing that
Congress has exceeded its constitutional bounds.” United
States v. Morrison, 529 U.S. 598, 607 (2000) (emphasis
added).
Clay characterizes § 2423(c) as usurping the law
enforcement responsibilities of the Haitian government and
argues that “neither the Foreign Commerce Clause nor the
Necessary and Proper Clause authorize the extraterritorial
enforcement of [federal] criminal laws against [him] for
noncommercial incestual conduct that occurred entirely
outside the United States.” Clay Br. 9.
III
The difficult constitutional questions raised in this
appeal require us to explain in some detail the provenance of
the statute under review. “Section 2423[(c)] developed through
a century of legislation addressing international sex
trafficking,” originating in the White-Slave Traffic (Mann)
Act, ch. 395, § 2, 36 Stat. 825 (1910) (codified as amended at
§ 3742(a). Clay may challenge the constitutionality of the
statute of conviction because this issue “properly fall[s] within
the narrow scope of review not barred by [his] guilty plea.”
United States v. Whited, 311 F.3d 259, 262 (3d Cir. 2002).

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18 U.S.C. § 2421 et seq.). United States v. Durham, 902 F.3d
1180, 1194 (10th Cir. 2018). “For decades, [this] statute
covered only situations in which the minor victim of certain
sex crimes was transported across state or federal borders.”
United States v. Pepe, 895 F.3d 679, 683 (9th Cir. 2018)
(citation omitted).
In 1978, Congress expanded the statute to prohibit
commercial sexual abuse against boys as well as girls. See
Protection of Children Against Sexual Exploitation Act of
1977, Pub. L. No. 95-225, § 3, 92 Stat. 7, 8 (1978). After
recognizing that the statute failed to address “private” (as
opposed to commercial) exploitation, H.R. Rep. No. 99-910, at
7 (1986), reprinted in 1986 U.S.C.C.A.N. 5952, 5957,
Congress expanded the law in 1986 to encompass
noncommercial sexual exploitation, Child Sexual Abuse and
Pornography Act of 1986, Pub. L. No. 99-628, § 5, 100 Stat.
3510, 3511 (1986).
Less than a decade later, Congress began to target sex
tourism. See Durham, 902 F.3d at 1195. In 1994, it added the
offense now codified at § 2423(b) to punish individuals who
traveled in foreign commerce “for the purpose of engaging in
[a prohibited] sexual act.” Violent Crime Control and Law
Enforcement Act of 1994, Pub. L. No. 103-322, § 160001(g),
108 Stat. 1796, 2037.
Prosecutors sometimes had trouble proving the intent
element of that offense. See H.R. Rep. No. 107-525, at 2–3
(2002). Congress addressed this enforcement gap by enacting
§ 2423(c) in 2003 “[a]s a tool to close statutory ‘loopholes’ that
affected commercial sex tourism.” United States v. Bollinger,
798 F.3d 201, 218 (4th Cir. 2015). Passed as part of the
Prosecutorial Remedies and Tools Against the Exploitation of

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Children Today (PROTECT) Act, Pub. L. No. 108-21, § 105,
117 Stat. 650, 654 (2003), “Congress viewed [§ 2423(c)] as a
critical part of its broader efforts to combat the multibillion
dollar international sex trafficking market.” Durham, 902 F.3d
at 1197. To that end, Ҥ 2423(c) targets the same individuals as
does § 2423(b)—namely, persons traveling in commerce for
the purpose of engaging in illicit sex—[but] it does so by
focusing the court’s attention on the defendant’s actual
conduct in the foreign nation.” Pendleton, 658 F.3d at 304
(emphasis added) (citations omitted). “In sum, Congress has
worked to combat sex trafficking—particularly of minors—for
over a century, developing a statutory scheme targeting sexual
exploitation for both commercial and noncommercial
purposes.” Durham, 902 F.3d at 1197 (emphases added).
IV
Having explained the statutory backdrop, we consider
the Foreign Commerce Clause and the Necessary and Proper
Clause to assess whether Congress had the power to enact
§ 2423(c).3
A
Congress has the power to “regulate Commerce with
foreign Nations.” U.S. Const. art. I, § 8, cl. 3. Does that include
3 At oral argument, the Government argued that Congress had
the power to establish nationality-based jurisdiction under
Blackmer v. United States, 284 U.S. 421 (1932). In that case, a
U.S. citizen living in France was found guilty of contempt for
failing to respond to a subpoena requiring him to appear as a
witness for the United States at a criminal trial. 284 U.S. at 433.

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the power to regulate the conduct of American citizens abroad?
It is hard to know because such cases “are few and far
between.” United States v. Clark, 435 F.3d 1100, 1102 (9th
Cir. 2006). See also Anthony J. Colangelo, The Foreign
Commerce Clause, 96 Va. L. Rev. 949, 950 (2010) (“[U]nlike
its Article I, Section 8 sibling, the Interstate Commerce Clause,
which has been scrutinized by generations of lawyers, scholars,
and judges, the Foreign Commerce Clause has received little
sustained analytical attention.” (footnotes omitted)). The
Supreme Court has “yet to articulate the constitutional
boundaries beyond which Congress may not pass in regulating
the conduct of citizens abroad.” Bollinger, 798 F.3d at 209.
Meanwhile, a circuit split has emerged regarding the scope of
the Foreign Commerce Clause relative to its interstate
counterpart. Most circuit courts that have considered the issue
have reasoned that the Constitution grants Congress greater
authority to regulate foreign commerce than interstate
The Supreme Court held the statute to be constitutional,
reasoning that
the question of its application, so far as citizens
of the United States in foreign countries are
concerned, is one of construction, not of
legislative power. . . . Nor can it be doubted that
the United States possesses the power inherent in
sovereignty to require the return to this country
of a citizen, resident elsewhere, whenever the
public interest requires it, and to penalize him in
case of refusal.
Id. at 437. Because the issue was not briefed, we decline to
address it.

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commerce.4 History, text, and purpose strongly support this
interpretation, at least as it relates to regulating the conduct of
U.S. citizens.5
1
As the Supreme Court has recognized, “there is
evidence that the Founders intended the scope of the foreign
4 Compare Clark, 435 F.3d at 1103 (“Instead of slavishly
marching down the path of grafting the interstate commerce
framework onto foreign commerce, we step back and take a
global, commonsense approach to the circumstance presented
here.”), and Bollinger, 798 F.3d at 215–16 (“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.”), and Durham, 902 F.3d at 1209 (“Because the
federalism considerations underlying the [Interstate
Commerce Clause] do not arise in the regulation of foreign
commerce, the economic and noneconomic distinction, which
otherwise discourages the aggregation of noneconomic
activity, is unnecessary.”), and United States v. Bredimus, 352
F.3d 200, 208 (5th Cir. 2003) (“[D]eference [to Congress]
applies even more forcefully to cases involving foreign
commerce travel.”), with United States v. Al-Maliki, 787 F.3d
784, 793 (6th Cir. 2015) (expressing skepticism of a broader
interpretation of the Foreign Commerce Clause because of
concerns that it would “allow[] the federal government to
intrude on the sovereignty of other nations” and “the liberty of
individual citizens”). See also Park, 938 F.3d at 372 (“In
foreign commerce, the federalism constraints that limit
Congress’s interstate commerce power are absent, and there is

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commerce power to be the greater” as compared to the
interstate commerce power. Japan Line, Ltd. v. Los Angeles
Cnty., 441 U.S. 434, 448 (1979). “A primary driver of the
Constitutional Convention of 1787 was to resolve federal
powers over foreign affairs.” Scott Sullivan, The Future of the
Foreign Commerce Clause, 83 Fordham L. Rev. 1955, 1962
(2015). As the Supreme Court explained a few decades after
ratification,
[t]he oppressed and degraded state of commerce
previous to the adoption of the constitution can
scarcely be forgotten. It was regulated by foreign
nations with a single view to their own interests;
and our disunited efforts to counteract their
restrictions were rendered impotent by want of
combination. . . . Those who felt the injury
a greater need for the United States to speak with a single
voice.”).
5 Interpreting the Foreign Commerce Clause to permit the
United States to regulate extraterritorially the conduct of
foreign nations or non-U.S. citizens or nationals would
implicate unique foreign sovereignty concerns. See Naomi
Harlin Goodno, When the Commerce Clause Goes
International: A Proposed Legal Framework for the Foreign
Commerce Clause, 65 Fla. L. Rev. 1139, 1207–12 (2013). But
such concerns do not arise with respect to statutes like
§ 2423(c) that regulate the conduct only of U.S. citizens or
nationals. See United States v. Bowman, 260 U.S. 94, 102
(1922) (“Clearly it is no offense to the dignity or right of
sovereignty of Brazil [for the United States] to hold [citizens
of the United States] for [a] crime against the government to
which they owe allegiance.”).

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arising from this state of things, and those who
were capable of estimating the influence of
commerce on the prosperity of nations,
perceived the necessity of giving the control over
this important subject to a single government.
Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 445–46 (1827).
Consistent with that imperative, the records of the
Constitutional Convention and the subsequent state ratifying
conventions are replete with mentions of commerce in the
context of “matters of purely international significance, such
as, war, treaties, and the like,”6 or discussions “purporting to
6 See, e.g., 1 The Records of the Federal Convention of 1787,
at 133 (Max Farrand ed., 1911) (Roger Sherman identifying
the regulation of foreign commerce, but not interstate
commerce, as an “object[] of the Union”); id. at 413 (James
Wilson: “We have unanimously agreed to establish a general
government—[t]hat the powers of peace, war, treaties, coinage
and regulating of commerce, ought to reside in that
government.”); 2 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 124
(Jonathan Elliot ed., 1836) [hereinafter The Debates in the
Several State Conventions] (Samuel Adams: “[T]here are
many parts of [the Constitution] I esteem as highly valuable,
particularly the article which empowers Congress to regulate
commerce, to form treaties.”); id. at 350 (Alexander Hamilton:
“The great leading objects of the federal government, in which
revenue is concerned, are to maintain domestic peace, and
provide for the common defence. In these are comprehended
the regulation of commerce, . . . that is, the whole system of

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deal with commerce generally . . . [but] focus[ing] exclusively
on some purely international attribute, consequence, or
incident.”7 Albert S. Abel, The Commerce Clause in the
Constitutional Convention and in Contemporary Comment, 25
Minn. L. Rev. 432, 465 (1941). In contrast, there is a “paucity”
of references directed solely to interstate commerce, and none
“where the grant of power over commerce between the states
was advanced as the basis for independent affirmative
regulation by the federal government.” Id. at 470–71. No less
an authority than James Madison deemed the Foreign
foreign intercourse.” (emphasis added)); 3 id. at 213 (James
Monroe discussing trade relationships with Great Britain,
France, and Holland in response to the question of what
“commerce require[s]”); 4 id. at 18 (William Richardson
Davie: “The next head under which the general government
may be considered, is the regulation of commerce. The United
States should be empowered to compel foreign nations into
commercial regulations that were either founded on the
principles of justice or reciprocal advantages.”).
7 See, e.g., 2 The Debates in the Several State Conventions,
supra note 6, at 106–07 (Nathaniel Gorham responding to a
question about the economic well-being of farmers and
yeoman by discussing commercial treaties with Great Britain);
Pamphlets on the Constitution of the United States, Published
During its Discussion by the People, 1787–1788, at 107 (Paul
Leicester Ford ed., 1888) (Melancthon Smith: “Commerce is
to expand her wings, and bear our productions to all the ports
in the world.”); id. at 379 (David Ramsay: “[I]t is probable you
will soon obtain such commercial treaties, as will open to your
vessels the West-India islands, and give life to your expiring
commerce.”).

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Commerce Clause “the great and essential power” and the
Interstate Commerce Cause as merely “supplemental.” The
Federalist No. 42 (James Madison).
It is true that these historical sources do not expressly
assert that the Foreign Commerce Clause extends
extraterritorially. But their tendency to directly link the
regulation of foreign commerce with inherently extraterritorial
matters (e.g., war and treaties) strongly suggests that the
Founders envisioned—and did not disclaim—a foreign
commerce power that applied extraterritorially.8 This explains
8 Judge Porter expresses a different view of the Foreign
Commerce Clause’s history. He relies primarily on three
sources: (1) Alexander Hamilton’s essay on the Jay Treaty,
Alexander Hamilton, Camillus No. XXXVI (1796), reprinted in
6 The Works of Alexander Hamilton, at 164–71 (Henry Cabot
Lodge ed., 1904); (2) Chief Justice Marshall’s opinion in
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824); and (3) the
views expressed by Edmund Randolph, the first Attorney
General of the United States and the drafter of the first iteration
of the Commerce Clause, Edmund Randolph, Opinion on the
Constitutionality of the Bank (1791), in 21 The Documentary
History of the First Federal Congress of the United States of
America, March 4, 1789–March 3, 1791, at 772 (Charlene
Bangs Bickford et al. eds., 2017). See Porter Concurrence at 5–
8. These sources do not bear the weight our colleague places
on them.
Hamilton wrote that “[Congress] can have no obligatory action
whatsoever . . . upon any person or thing within the jurisdiction
of a foreign nation,” Hamilton, Camillus No. XXXVI (1796),
reprinted in 6 The Works of Alexander Hamilton, at 167. But

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why the Supreme Court has implicitly concluded that the
Sherman Antitrust Act, as applied to foreign companies acting
in foreign countries, was a permissible exercise of
congressional power under the Foreign Commerce Clause. See
Hartford Fire Ins. Co. v. California, 509 U.S. 764, 795–96
(1993); see also id. at 813–14 (Scalia, J., dissenting) (“[T]his
Court has repeatedly upheld [Congress’s foreign commerce]
power to make laws applicable to persons or activities beyond
our territorial boundaries where United States interests are
affected.” (emphasis added) (first citing Ford v. United States,
273 U.S. 593, 621–23 (1927); then citing United States v.
Bowman, 260 U.S. 94, 98–99 (1922); and then citing American
Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909))).
2
The text of the Foreign Commerce Clause also “reflects
the Founders’ objective to provide broader authority” to
Congress than under the Interstate Commerce Clause. Durham,
he expressed that opinion in the context of foreign trade. See
id. at 168–69 (“Congress . . . may regulate, by law, our own
trade and that which foreigners come to carry on with us.”
(emphasis added)); id. at 169 (“[Congress] cannot regulate the
trade which we may go to carry on in foreign countries.”
(emphasis added)). Judge Porter is correct that neither Marshall
nor Randolph discussed the extraterritorial application of the
Foreign Commerce Clause. But neither suggested the contrary
either. This is especially telling in Ogden, where Chief Justice
Marshall observed that “[c]ommerce among the States[] cannot
stop at the external boundary line of each State, but may be
introduced into the interior,” while declining to specify that
commerce with foreign nations must stop at their borders.
Ogden, 22 U.S. at 194.

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902 F.3d at 1201. “Comprehensive as the word ‘among’ is [in
the Interstate Commerce Clause], it may very properly be
restricted to that commerce which concerns more States than
one.” United States v. Lopez, 514 U.S. 549, 553 (1995)
(quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 194 (1824)).
The Foreign Commerce Clause, by contrast, authorizes
Congress to “regulate Commerce with foreign Nations.” U.S.
Const. art. I, § 8, cl. 3 (emphasis added). Contemporaneous
definitions of “with” included: “noting the means,” “in mutual
dealing,” and “noting connection.” 2 Samuel Johnson,
Dictionary of the English Language (1755).
These definitions of “with” do not render the Foreign
Commerce Clause limitless. For example, the word
“connection” “signifies that whatever conduct Congress is
attempting to regulate . . . should link the foreign nation and
the United States.” Goodno, supra n.5, at 1203 (emphasis
added). But they do suggest that Congress’s power to regulate
foreign commerce is more expansive than its power to regulate
interstate commerce—at least with respect to “persons or
activities . . . where United States interests are affected.”9
Hartford Fire Ins. Co., 509 U.S. at 813–14 (Scalia, J.,
dissenting). Consistent with this reasoning, the Supreme Court
9 Judge Porter asserts that “Congress lacks any power to
regulate inside sovereign nations under the Foreign Commerce
Clause.” Porter Concurrence at 17. If he is correct about that,
numerous federal criminal statutes with extraterritorial
application would be unconstitutional. See, e.g., 15 U.S.C.
§§ 78dd-1 et seq. (bribing foreign government officials); 18
U.S.C. § 2332 (killing or injuring a U.S. national while
abroad); 18 U.S.C. § 1956(f) (money laundering); 18 U.S.C.
§§ 470–74 (counterfeiting abroad); 18 U.S.C. § 1512(a), (h)
(threatening a federal witness or informant).

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has repeatedly compared the Foreign Commerce Clause to the
Indian Commerce Clause, which uses the same preposition
(“with”), U.S. Const., art I, § 8, cl. 3, and grants Congress
“plenary and exclusive” power to legislate with respect to
Indian tribes, Haaland v. Brackeen, 599 U.S. 255, 272 (2023)
(cleaned up); see, e.g., United States v. Forty-Three Gallons of
Whiskey, 93 U.S. 188, 194 (1876); Buttfield v. Stranahan, 192
U.S. 470, 493 (1904).
3
A final reason for deeming Congress to have more
expansive powers under the Foreign Commerce Clause than
the Interstate Commerce Clause is that the important
federalism concerns applicable to the latter have no salience
with the former. See Bd. of Trs. of Univ. of Ill. v. United States,
289 U.S. 48, 59 (1933). While the interstate commerce power
must not be permitted to “effectually obliterate the distinction
between what is national and what is local,” Lopez, 514 U.S. at
557, the purpose of the Foreign Commerce Clause is to equip
the United States “[i]n international relations and with respect
to foreign intercourse” to “act through a single government
with unified and adequate national power,” Bd. of Trs., 289
U.S. at 59—in other words, to speak with “one voice,” Japan
Line, 441 U.S. at 451.
It is true that foreign nations, unlike the States, “have
never ceded a portion of their sovereignty to the federal
government” and “are unprotected from federal encroachment
by political mechanisms inherent in the federal law-making
process.” Colangelo, supra, at 955. And the Framers
acknowledged “the perfect equality of nations,” in which no
foreign nation has a right to impose a rule on another. The
Antelope, 23 U.S. (10 Wheat.) 66, 122 (1825) (Marshall, C.J.);

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see Colangelo, supra, at 976 (describing Chief Justice
Marshall’s views as “emblematic of the time”).10 But while the
Constitution grants no protection to foreign nations, they may
have recourse to international law to protect their sovereignty.
See Restatement (Third) of Foreign Relations Law of the
United States §§ 401–02 (1987).
* * *
For the reasons stated, there is strong evidence that
Congress has more expansive power under the Foreign
Commerce Clause than the Interstate Commerce Clause. But
because the Supreme Court has not articulated the scope of that
power, we will pursue the more restrained course and again
apply the “time-tested framework” outlined in United States v.
10 Judge Porter also emphasizes the sovereignty of foreign
nations to control their respective territories. See Porter
Concurrence at 7 (first citing The Schooner Exch. v.
McFaddon, 11 U.S. (7 Cranch) 116, 136 (1812); and then
citing The Antelope, 23 U.S. at 122). But it is difficult to see
how Clay’s prosecution under § 2423(c) infringes Haiti’s
sovereignty. “[T]here is no question of international law” that
“[b]y virtue of the obligations of citizenship, the United States
retained its authority over [Clay], and he was bound by its laws
made applicable to him in a foreign country.” Blackmer, 284
U.S. at 436–37; see also Restatement (Third) of Foreign
Relations Law § 402 (1987) (noting that it is uncontroversial
as a matter of international law that a nation may exercise
jurisdiction over “the activities . . . of its nationals outside as
well as within its territory” (emphasis added)). Nor is there any
evidence in the record that Haiti sought to prosecute Clay under
its criminal laws.

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20
Lopez. Pendleton, 658 F.3d at 308 (cleaned up).11 As we
reasoned in Pendleton, we need not outline the precise scope
of the Foreign Commerce Clause because § 2423(c) is
permissible under “the narrower standard articulated in
Lopez.” Id.
B
Applying the Lopez framework to Clay’s Foreign
Commerce Clause challenge, § 2423(c) is constitutional only
if it fits into one of the “three broad categories of activity that
Congress may regulate under its commerce power”:
(1) channels of foreign commerce; (2) instrumentalities of
foreign commerce; and (3) activities that substantially affect
foreign commerce. See Lopez, 514 U.S. at 558–59. For the
reasons below, as applied to the prohibition of Clay’s
noncommercial conduct, § 2423(c) constitutes a regulation of
both the channels of foreign commerce and activities that
substantially affect foreign commerce.
11 Though the Supreme Court “has never struck down an act of
Congress as exceeding its powers to regulate foreign
commerce,” Clark, 435 F.3d at 1113, it has primarily assessed
the scope of the Foreign Commerce Clause in cases involving
challenges to state laws (i.e., the dormant Foreign Commerce
Clause), see, e.g., Japan Line, 441 U.S. at 436 (California ad
valorem property tax applied to cargo containers owned by
certain Japanese shipping companies); Container Corp. of Am.
v. Franchise Tax Bd., 463 U.S. 159 (1983) (California income
tax on corporations calculated by the amount of their
worldwide business located in California); Wardair Can., Inc.
v. Fla. Dep’t of Revenue, 477 U.S. 1 (1986) (Florida statute
providing for state sales tax for aviation fuel).

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21
1
In rejecting Clay’s challenge to § 2423(c), the District
Court correctly concluded that Pendleton “forecloses” his
“arguments regarding sex tourism and his lack of intent at the
time he traveled to Haiti” because Pendleton “expressly
addressed the facial validity” of § 2423 “insofar as [the statute]
. . . criminalized noncommercial sex acts.”12 App. 15
(emphasis added). In Pendleton, the defendant sexually
molested a minor six months after arriving in Germany. 658
F.3d at 301. After he was released from a German prison,
Pendleton returned to the United States and was indicted under
§ 2423(c). Id. On appeal, he argued that the statute was facially
unconstitutional. Id. at 302. Clay seizes on the distinction
between facial and as-applied challenges, asserting that the
District Court
failed to account for any of [his] unique
facts . . . , including his residency in Haiti, the
fact that his illicit conduct occurred in his own
home with a member of his own family, the fact
12 Clay argues that § 2423(c) is unconstitutional both on its face
and as applied to him. Because we rejected an identical facial
challenge to § 2423(c) in Pendleton, we consider only Clay’s
as-applied challenge here. See Reich v. D.M. Sabia Co., 90
F.3d 854, 858 (3d Cir. 1996) (“[A] panel of this court is bound
by, and lacks authority to overrule, a published decision of a
prior panel.”). Clay’s efforts to distinguish the facts in his case
from those in Pendleton are pertinent only to his as-applied
challenge. See United States v. Marcavage, 609 F.3d 264, 273
(3d Cir. 2010) (“A facial attack tests a law’s constitutionality
based on its text alone and does not consider the facts or
circumstances of a particular case.”).

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22
that the criminal conduct was untethered to any
international travel, and the fact that he has no
history of engaging in commercial illicit sexual
conduct or child pornography.
Clay Br. 32. But Pendleton’s reasoning applies equally to all
noncommercial sexual abuse because it relied on the “authority
of Congress to keep the channels of . . . commerce free from
immoral and injurious uses.” 658 F.3d at 308 (quoting Heart
of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256
(1964)). See also N. Am. Co. v. SEC, 327 U.S. 686, 705 (1946)
(“Congress may impose relevant conditions and requirements
on those who use the channels of interstate commerce in order
that those channels will not become the means of promoting or
spreading evil, whether of a physical, moral or economic
nature.”).
Citing our decision in United States v. Shenandoah, 595
F.3d 151, 161 (3d Cir. 2010), we analogized § 2423(c) to the
Sex Offender Registration and Notification Act, which we
concluded was a proper regulation of the channels of interstate
commerce even though it does not require intent by the sex
offender to violate federal registration requirements.
Pendleton, 658 F.3d at 309–10. Based on this, we held that
“because the jurisdictional element in § 2423(c) has an express
connection to the channels of foreign commerce, . . . it is a
valid exercise of Congress’s power under the Foreign
Commerce Clause.” Id. at 311 (internal quotation marks and
footnote omitted). This reasoning applies equally to Clay as it
did to Pendleton.
Clay argues that Pendleton should be read more
narrowly because the illegal conduct at issue there was limited
to what “was either inherently commercial or involved travel

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23
with an improper intent.” Clay Br. 33. That argument misreads
Pendleton. Pendleton was indicted for engaging in
“noncommercial illicit sexual conduct” in Germany six months
after traveling there from the United States, and our opinion
nowhere suggests that he traveled abroad with an intent to
engage in sexual crimes. See Pendleton, 658 F.3d at 301–02,
311.
As Clay points out, some colleagues on our sister courts
disagree with our channels-of-commerce analysis of § 2423(c).
Unlike the Sex Offender Registration and Notification Act,
§ 2423(c) neither punishes the act of traveling in
foreign commerce, [n]or the wrongful use or
impediment of use of the channels of foreign
commerce. Rather, it punishes future conduct in
a foreign country entirely divorced from the act
of traveling except for the fact that the travel
occurs at some point prior to the regulated
conduct.
Clark, 435 F.3d at 1119 (Ferguson, J., dissenting). Consistent
with that view, some judges have expressed concern that
interpreting § 2423(c) as a valid exercise of Congress’s power
to regulate the channels of commerce would “permit Congress
to subject an American to federal prosecution for any offense
committed abroad.” Durham, 902 F.3d at 1256 (Hartz, J.,
dissenting). See also United States v. Rife, 33 F.4th 838, 845
(6th Cir. 2022) (similar). However compelling these concerns
may be in the abstract, they do not apply here because Clay’s
case does not involve just “any offense committed abroad.”
Section 2423(c) is constitutional under the Foreign
Commerce Clause if a defendant’s travel in foreign commerce

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24
“encompasses movement abroad that maintains some nexus
with the United States.” United States v. Schmidt, 845 F.3d
153, 157 (4th Cir. 2017). Clay did just that. He traveled
between the United States and Haiti multiple times each year;
he owned and rented out a house in the United States; he
availed himself of the Washington state court system to adopt
his children (including the minor victim); and he listed
addresses within the United States to acquire passports for his
adopted children and a driver’s license for himself. Even if
Clay had been a resident of Haiti as he claims,13 he never
abandoned his U.S. citizenship or residence. Based on “all
relevant facts and circumstances,” id., it was thus permissible
for Congress to criminalize Clay’s conduct under § 2423(c)
pursuant to its power to regulate the channels of foreign
commerce—of which Clay availed himself repeatedly for
years.
2
While we did not consider in Pendleton whether
§ 2423(c) also satisfied the third Lopez category, 658 F.3d at
311 n.7, we now hold there is a rational basis for concluding
that § 2423(c) regulates “activities [that], taken in the
aggregate, substantially affect [foreign] commerce,” see
United States v. Kukafka, 478 F.3d 531, 535–36 (3d Cir. 2007)
(citation omitted). Clay asserts that “[t]he noncommercial
sexual abuse of a family member in the privacy of one’s own
home . . . has no effect on the broader market for commercial
illicit sexual conduct.” Clay Br. 23. The Government responds
that § 2423(c) represents “an essential component of
13 Clay and the Government disagree on this point, compare
Clay Br. 6, 26, with Gov’t Br. 24, and the District Court
declined to adjudicate it, see Tr. at 163–164.

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25
Congress’s overall scheme to combat commercial sex tourism
by Americans abroad.” Gov’t Br. 25 (cleaned up). We agree
with the Government.
Although noncommercial sexual abuse itself is not
economic,14 “[i]nternational sex tourism is a multi-billion
dollar industry.” United States v. Lindsay, 931 F.3d 852, 862
(9th Cir. 2019). See also 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 9 (Dec.
24, 2012). “By 2002, Congress had recognized the problem of
sex tourism was growing despite previous efforts to address it.”
Durham, 902 F.3d at 1210 (citing H.R. Rep. No. 107-525, at 2
(2002)). “The legislative record contains statements expressing
concern that the sex tourism industry ‘support[s] one of the
fastest growing areas of international criminal activity.’” Id.
14 Authoritative dictionaries support interpreting the word
“economic” to require a relationship to “the production,
distribution, and consumption of goods and services.”
Economic, Merriam-Webster, https://perma.cc/GWL2-4PBM.
See also Economics, Oxford English Dictionary,
https://perma.cc/8EWL-A7TY (“The branch of knowledge . . .
that deals with the production, distribution, consumption, and
transfer of wealth”); Economics, Black’s Law Dictionary (12th
ed. 2024) (“The social science dealing with the production,
distribution, and consumption of goods and services”). This
understanding of “economic” aligns with how the Supreme
Court has distinguished between economic and non-economic
activities in its Interstate Commerce Clause jurisprudence.
Compare Lopez, 514 U.S. at 560 (possession of a gun in a local
school zone), and Morrison, 529 U.S. at 613 (gender-
motivated crimes of violence), with Gonzalez v. Raich, 545
U.S. 1, 25–26 (2005) (homegrown marijuana).

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26
(quoting 149 Cong. Rec. H2405 (2003) (statement of Rep.
Sensenbrenner)).
As Congress recognized before enacting § 2423(c),
“[m]any developing countries have fallen prey to the serious
problem of international sex tourism,” but “sex tourists often
escape prosecution in [their] host countries” “for reasons
ranging from ineffective law enforcement, lack of resources,
corruption, and generally immature legal systems.” H.R. Rep.
No. 107-525, at 2–3 (2002). “The pathway to the enactment of
§ 2423(c) [thus] manifests a purpose to address the foreign
commerce problem of the international sex trade.”15 Durham,
902 F.3d at 1211. More specifically, § 2423(c) was passed “to
fill the enforcement gap created by § 2423(b)’s intent
requirement.” Id. at 1196.
Criminalizing non-commercial sexual abuse is
. . . conducive to eliminating commercial child
exploitation given the enforcement difficulties
posed by a requirement to prove a quid-pro-quo
transaction. Proof of the commercial aspect of
child sexual exploitation can be exceptionally
elusive. International child sex tourists often use
15 Clay suggests that the lack of specific congressional findings
on the effect of noncommercial sexual abuse on foreign
commerce precludes a finding that § 2423(c) regulates
activities that substantially affect commerce in the aggregate.
But “[w]hile congressional findings are certainly helpful in
reviewing the substance of a congressional statutory scheme,
particularly when the connection to commerce is not self-
evident, . . . the absence of particularized findings does not call
into question Congress’[s] authority to legislate.” Raich, 545
U.S. at 21.

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27
travel agencies, transport, accommodation[,] and
other tourism-related services that facilitate
contact with children, and everyone involved has
strong incentives to disguise their unlawful
activities. . . . The transactional component of
such inducements is systematically denied by
and hidden from the child, the child’s family, and
the community, which makes it challenging for
law enforcement to uncover. Given the nature of
commercial child sexual exploitation, Congress
had a rational basis to conclude that a law
requiring proof of commercial activity would
result in dramatic underenforcement.
United States v. Park, 938 F.3d 354, 373–74 (D.C. Cir. 2019)
(emphasis added) (cleaned up).
Clay argues that his case “falls . . . squarely [within] the
confines of Lopez and Morrison in the sense that [there is] a
regulation over conduct as opposed to a regulation over the use
of a fungible item.” Oral Arg. Tr. at 50. Morrison, after all,
explains that there is “no better example of the police power,
which the Founders denied the National Government and
reposed in the States, than the suppression of violent crime and
vindication of its victims.” 529 U.S. at 618. Be that as it may,
Gonzalez v. Raich, 545 U.S. 1 (2005), is the closer analogue to
Clay’s case.
In Raich, two California residents sought to “prohibit[]
the enforcement of the federal Controlled Substances Act” “to
the extent it prevent[ed] them from possessing, obtaining, or
manufacturing cannabis for their personal medical use.” Id. at
7. The Supreme Court denied their request, reasoning that
Congress is not “required . . . to legislate with scientific

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28
exactitude. When Congress decides that the total incidence of
a practice poses a threat to a national market, it may regulate
the entire class.” Id. at 17 (cleaned up). See also Perez v. United
States, 402 U.S. 146, 154 (1971) (“[W]hen it is necessary in
order to prevent an evil to make the law embrace more than the
precise thing to be prevented it may do so.” (quoting Westfall
v. United States, 274 U.S. 256, 259 (1927))). In light of the
“enforcement difficulties that attend distinguishing between
marijuana cultivated locally and marijuana grown elsewhere,”
the Court “conclud[ed] that Congress had a rational basis for
believing that failure to regulate the intrastate manufacture and
possession of marijuana would leave a gaping hole in the
[Controlled Substances Act].” Raich, 545 U.S. at 22 (emphasis
added).
Raich is thus distinguishable from Lopez, which
involved a “brief, single-subject statute” that did not comprise
“an essential part of a larger regulation of economic activity.”
Id. at 23–24 (cleaned up). Tellingly, the majority in Lopez
suggested that the result might have differed had the statute at
issue been “an essential part of a larger regulation of economic
activity, in which the regulatory scheme could [have] be[en]
undercut unless the intrastate activity were regulated.” 514
U.S. at 561. Similarly, Morrison involved “a federal civil
remedy for the victims of gender-motivated crimes of
violence,” which, unlike the statute in Raich, did not purport to
“regulate economic activity” or any kind of market. Raich, 545
U.S. at 25.
Just as the statutory prohibition on homegrown
marijuana addressed in Raich formed part of a larger regulatory
scheme to regulate the illicit drug market, § 2423(c) is a key
component of a comprehensive framework to combat the
international sex tourism market. See Durham, 902 F.3d at

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29
1214. So Congress had a rational basis to conclude that the
intent requirement in § 2423(b) was “undercutting sex tourism
prosecutions” and that “shedding the mens rea requirement”
would enable the prosecution of individuals who would
otherwise “continue to fuel the international sex tourism
market.” Id. at 1212 n.19. The petitioners in Lopez and
Morrison both proffered attenuated, but-for causal chains in
which the prohibited activities of gun ownership near schools
and domestic violence purportedly produced effects on
interstate commerce far downstream.16 Unlike those attenuated
causal chains, § 2423(c) is, like the statutory provision in
16 See Brief for Petitioner at 9, Lopez, 514 U.S. 549 (No. 93-
1260), 1994 WL 242541, at *9 (“Through the mechanism of
insurance, the economic consequences of violent crime are
spread throughout the nation. In addition, violent crime affects
interstate commerce by reducing the willingness of other
individuals to travel to areas that are perceived to be unsafe. . . .
Congress [also] had ample basis for concluding that the
presence of guns in schools poses an unacceptable threat to the
proper functioning of primary and secondary education.
Congress had ample basis as well to conclude that disruption
of the educational process would have substantial deleterious
effects on the national economy.”); Brief for Petitioner at 20,
Morrison, 529 U.S. 598 (Nos. 99-5, 99-29), 1999 WL
1037259, at *20 (“Congress rationally determined that gender-
motivated violence imposes a substantial burden on interstate
commerce, impeding its victims’ efforts to work, travel, and
engage in other economic activity. Section 13981 is
specifically designed to address the economic consequences of
gender[-]motivated violence by providing victims a means of
recovering their lost earnings, medical expenses, and other
pecuniary and non-pecuniary losses.”).

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30
Raich, an essential part of a broader scheme to directly regulate
a commercial market.17 See Raich, 545 U.S. at 38–39 (Scalia,
J., concurring) (“Lopez and Morrison . . . do not declare
noneconomic intrastate activities to be categorically beyond
the reach of the Federal Government. Neither case involved the
power of Congress to exert control over intrastate activities in
connection with a more comprehensive scheme of
regulation.”).
Clay responds that Raich is inapposite because it
involved fungible goods. But neither the holding nor the
reasoning in Raich is limited to illegal goods, and the same
economic principles apply to a market for illegal services. So
we hold that § 2423(c) is also permissible under Congress’s
17 The Government and our sister courts have suggested
additional ways in which noncommercial child sexual abuse
can affect the commercial market. See Park, 938 F.3d at 373
(“[N]on-commercial sexual abuse of minors can drive
commercial demand for sex with minors by reinforcing the
idea that such conduct is acceptable, or by allowing traffickers
to use non-commercial arrangements to entice patrons into
engaging in subsequent commercial behavior.”); Bollinger,
798 F.3d at 219 (“[N]on-commercial sex with minors . . . could
affect the price for child prostitution services and other market
conditions in the child prostitution industry.” (citation
omitted)); Gov’t Br. 25 (“Child sexual abuse victims are . . .
far more likely to be victims of commercial sexual
exploitation, cementing the interconnectedness of the two
violations.” (cleaned up)). We are not so sure because Lopez
cautions against “pil[ing] inference upon inference in a manner
that would bid fair to convert congressional authority under the
Commerce Clause to a general police power of the sort retained
by the States.” 514 U.S. at 567.

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31
power to regulate activities that substantially affect commerce.
V
The Necessary and Proper Clause, as implementing the
treaty power, provides an independent basis for Congress’s
power to enact § 2423(c). U.S. Const. art. I, § 8, cl. 18. The
Constitution grants the President the power to make treaties
with foreign nations, which become part of “the supreme Law
of the Land” when at least two-thirds of the Senate consents.
U.S. Const. art. II, § 2, cl. 2; id. art. VI, cl. 2.
As the Supreme Court made clear in Missouri v.
Holland, treaties may regulate purely intrastate—and,
analogously, foreign intranational—conduct. See 252 U.S.
416, 431–32, 435 (1920) (upholding the Migratory Bird Treaty
Act, which prohibited the killing, capturing, or selling of
migratory birds, including within an individual State). The
Court further held in Holland that “[i]f [a] treaty is valid there
can be no dispute about the validity of [a] statute under Article
[I], Section 8, as a necessary and proper means to execute the
powers of the Government.”18 Id. at 432. Clay attempts to
characterize this language as dicta, but we are unconvinced.
We have defined dicta “as a statement in a judicial opinion that
18 In Bond v. United States, 572 U.S. 844 (2014), the Supreme
Court “interpreted a criminal statute narrowly to avoid
reconsidering” this language in Holland, but “[t]hree Justices
would have reached the constitutional question and struck
down the statute as exceeding Congress’s authority.” Pepe,
895 F.3d at 690 n.6; see Bond, 572 U.S. at 878–79, 882 (Scalia,
J., concurring); id. at 894–96 (Thomas, J., concurring); id. at
897 (Alito, J. concurring). But Holland remains good law, and
to determine otherwise would be to overread Bond.

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32
could have been deleted without seriously impairing the
analytical foundations of the holding.” In re McDonald, 205
F.3d 606, 612 (3d Cir. 2000) (cleaned up). And this language
constitutes the main, if not the only, analysis justifying the
constitutionality of the statute at issue in Holland. So it is not
dicta.
“[I]n determining whether the Necessary and Proper
Clause grants Congress the legislative authority to enact a
particular federal statute, we look to see 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)
(emphasis added). The Supreme Court “long ago rejected the
view that the Necessary and Proper Clause demands that an
Act of Congress be absolutely necessary to the exercise of an
enumerated power.” Jinks v. Richland Cnty., 538 U.S. 456, 462
(2003) (cleaned up). Rather, a statute falls within the Clause’s
ambit if it is “convenient, or useful or conducive to the
authority’s beneficial exercise.” Comstock, 560 U.S. at 133–34
(cleaned up). See also Sabri v. United States, 541 U.S. 600, 607
(2004) (reasoning that the Necessary and Proper Clause
empowers Congress to “fill[] . . . regulatory gaps”). That means
a treaty-implementing statute need not be identical to the
treaty, see, e.g., United States v. Belfast, 611 F.3d 783, 806–08
(11th Cir. 2010), and “Congress’s power to give [a] treaty
practical effect . . . is not confined to [its] minimum
requirements,” Park, 938 F.3d at 369.
As Clay notes, “[t]he legislative history of the
PROTECT Act does not include a statement regarding the
source of Congress’s authority to enact § 2423(c).” Pendleton,
658 F.3d at 302 n.1; see Clay Br. 36–37, 39 (attempting to
distinguish § 2423(c) from the Migratory Birds Treaty Act in

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33
Holland). But that omission is immaterial because “[t]he
question of the constitutionality of [an] action taken by
Congress does not depend on recitals of the power which it
undertakes to exercise.” Nat’l Fed. of Indep. Bus. v. Sebelius,
567 U.S. 519, 570 (2012) (cleaned up). “A court must be able
to discern a basis for Congress’s exercise of an enumerated
power, but that does not mean that a ‘law must be struck down
because Congress used the wrong labels’ or failed to identify
the source of its power.” Park, 938 F.3d at 363 (quoting Nat’l
Fed. of Indep. Bus., 567 U.S. at 569).
The Optional Protocol to the United Nations
Convention on the Rights of the Child on the Sale of Children,
Child Prostitution and Child Pornography (May 25, 2000),
2171 U.N.T.S. 227 [hereinafter Optional Protocol], seeks to
eliminate commercial child sexual exploitation. Ratified by the
Senate in 2002, see 148 Cong. Rec. S5717 (daily ed. June 18,
2002), the Optional Protocol binds 178 nations, including the
United States, see Status of Ratification Interactive
Dashboard, U.N. Hum. Off. of the High Comm’r for Hum.
Rts., available at https://perma.cc/8EWL-A7TY. The Optional
Protocol expressed the need for a “holistic approach”
“addressing the contributing factors, including . . .
irresponsible adult sexual behaviour,” to facilitate the
elimination of “the widespread and continuing practice of sex
tourism, to which children are especially vulnerable.” Optional
Protocol, pmbl. At “a minimum,” state parties to the Optional
Protocol must criminalize “[o]ffering, delivering[,] or
accepting, by whatever means, a child for the purpose
of . . . [s]exual exploitation,” “whether such offences are
committed domestically or transnationally or on an individual
or organized basis.” Id. art. 3(1). Parties to the Optional
Protocol are also permitted to “take such measures as may be

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34
necessary to establish . . . jurisdiction over [these] offences”
“[w]hen the alleged offender is a national of that State.” Id. art.
4(2).
While “the Protocol does not itself specifically address
non-commercial child sexual abuse,” Park, 938 F.3d at 368,
§ 2423(c) is rationally related to implementing the purpose of
the Optional Protocol: combatting commercial child sex
tourism. Perhaps most importantly, it helps “clos[e]
enforcement gaps that otherwise could . . . hinder[] the
objectives of the Optional Protocol.” Id. Relatedly, any
loophole in domestic law “could encourage American sex
tourists—who by some estimates comprise one quarter of all
sex tourists globally—to go abroad seeking non-commercial
sex with minors that, had it occurred in the United States,
would be criminalized as statutory rape.” Id. See also Lindsay,
931 F.3d at 863 (similar).
“[T]he Constitution does not envision or condone a
vacuum of all police power, state and federal, within which
citizens may commit acts abroad that would clearly be crimes
if committed at home.” Bollinger, 798 F.3d at 219. This is
especially true where, as here, this vacuum would “create[] or
exacerbate[] identified risks to treaty partners” in the Optional
Protocol. Park, 938 F.3d at 369. Allowing such a vacuum
“could undoubtedly have broad ramifications on our standing
in the world.” Bollinger, 798 F.3d at 219. Additionally,
§ 2423(c) may reduce the ability of traffickers to use
noncommercial arrangements to entice children into engaging
in subsequent commercial sex acts, or decrease the overall
number of child sexual abuse victims—and thus the number of

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victims of commercial sexual exploitation.19 See Bollinger,
798 F.3d at 219. See also Jay G. Silverman et al., The
Relationship Between Commercial Sexual Exploitation of
Children (CSEC) and Childhood Sexual Abuse (CSA) Among
Boys and Girls in Haiti, 29 Int’l J. of Inj. Control & Safety
Promotion 86 (2022). For these reasons, we conclude that
§ 2423(c) is rationally related to implementing the goals of the
Optional Protocol.
Our opinion should not be read to support a Necessary
and Proper Clause that imposes no limits on the treaty power.
At least four constraints exist. First, a statute authorized as a
necessary and proper exercise of the treaty power remains
subject to the Due Process Clause and other protections
enshrined in the Bill of Rights. See Asakura v. City of Seattle,
265 U.S. 332, 341 (1924); Boos v. Barry, 485 U.S. 312, 324
(1988). Second, Congress “may not . . . point to any
tangentially related treaty to defend a constitutionally suspect
statute.” Park, 938 F.3d at 369 (emphasis added). That presents
no problem here because the Optional Protocol is especially
related to § 2423(c) insofar as it expressly contemplates
statutes that “may be necessary to establish . . . jurisdiction”
over nationals who commit commercial sex offenses—which
§ 2423(c) does through both its “travels in foreign commerce”
and “resides . . . in a foreign country” prongs. Optional
Protocol, art. 4(2). Third, “an act of Congress ought never to
be construed to violate the law of nations if any other possible
construction remains.” Murray v. The Schooner Charming
Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). Finally, practical
19 Under the Interstate Commerce Clause framework, these
chains of causation rely on too many inferences, see Lopez, 514
U.S. at 567, but the rational basis standard of the Necessary
and Proper Clause is not limited by that principle.

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36
political considerations, both domestic and international,
prevent overreach by Congress. See Oona A. Hathaway,
Treaties’ End: The Past, Present, and Future of International
Lawmaking in the United States, 117 Yale L.J. 1236, 1249–50
(2008). None of these limitations cuts against our conclusion
that § 2423(c) is “plainly necessary and proper to implement
the goals of the Optional Protocol.” Park, 938 F.3d at 370.
VI
We turn finally to Clay’s sentencing challenges. He
argues that the District Court committed procedural error
because it “almost entirely ignored the far-shorter sentences—
imposed for objectively worse conduct—that [he] highlighted
in his sentencing memorandum, as well as the other factors he
identified in support of his request for a downward variance.”
Clay Br. 40. He also briefly contends that his sentence is
substantively unreasonable. Both arguments are unpersuasive.
A sentence is procedurally reasonable if the District
Court: “(1) correctly calculated the . . . advisory Guidelines
range; (2) appropriately considered any motions for a departure
under the Guidelines; and (3) gave meaningful consideration
to the sentencing factors set forth in 18 U.S.C. § 3553(a).”
United States v. Freeman, 763 F.3d 322, 335 (3d Cir. 2014).
We consider whether the District Court “produce[d] a record
sufficient to demonstrate its rational and meaningful
consideration of the § 3553(a) factors.” United States v. Begin,
696 F.3d 405, 411 (3d Cir. 2012). While the District Court was
required to “acknowledge and respond to any properly
presented sentencing argument which ha[d] colorable legal
merit and a factual basis,” United States v. Ausburn, 502 F.3d
313, 329 (3d Cir. 2007), it did not need to discuss meritless
arguments, United States v. Lychock, 578 F.3d 214, 219 (3d

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37
Cir. 2009). And § 3553(a) does not “insist[] upon a full opinion
in every case.” Rita v. United States, 551 U.S. 338, 356 (2007).
Under 18 U.S.C. § 3553(a)(6), a sentencing court must
consider “the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found
guilty of similar conduct.” So this factor is relevant only if Clay
identifies other defendants whose circumstances mirrored his
own. United States v. Lacerda, 958 F.3d 196, 215 (3d Cir.
2020). He has failed to do so. All but one of his putative
comparators who received lower sentences than Clay had plea
agreements with appellate waivers or other consideration
given, or pleaded guilty while simultaneously withdrawing
motions to dismiss. Clay did not. The remaining defendant
sexually abused the victim for a “short time frame” of
“approximately two weeks.” Sentencing Tr. at 86, United
States v. Maurizio, No. 3:14-cr-00023-001 (W.D. Pa. Mar. 8,
2016), ECF No. 249. In contrast, Clay committed sexual abuse
“numerous times” over the course of nearly six months. App.
206. In any case, the District Court meaningfully considered
Clay’s argument. See id. (“Any speculation about what might
have happened had he been charged in some other jurisdiction
. . . does not in the Court’s view create a sentencing disparity
let alone an unwarranted sentencing disparity.”).
The District Court also adequately addressed Clay’s
arguments for a downward variance. It reasoned that:
(1) Clay’s acceptance of responsibility was already accounted
for by a reduction in his offense level; (2) the challenges in
Clay’s personal life, though significant, did not mitigate his
sexual abuse of the child; (3) the severity of his conduct
justified the sentence whether his risk of recidivism was high
or low; and (4) his support network of friends and family might
be unable to detect or deter future offenses. It also reviewed the

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38
victim impact statement in which the victim’s mother
requested only that Clay not be sentenced to 30 years’
imprisonment (which he was not). The District Court thus
sufficiently justified its decision to deny Clay’s request for a
downward variance.
Finally, we reject Clay’s challenge to his sentence as
substantively unreasonable. He can succeed only if “no
reasonable sentencing court would have imposed the same
sentence on that particular defendant for the reasons” provided
by the District Court. United States v. Tomko, 562 F.3d 558,
568 (3d Cir. 2009) (en banc). Because Clay’s sentence was
within the Guidelines range, it is presumptively reasonable, see
United States v. Pawlowski, 27 F.4th 897, 912 (3d Cir. 2022),
and Clay presents no persuasive argument to overcome this
presumption. So the District Court did not abuse its discretion.
See Tomko, 562 F.3d at 567.
* * *
The question of whether Congress had the power to
enact § 2423(c) is of grave significance. Sadly, many
Americans traveling abroad have sexually abused children.
Today we hold that Congress’s attempt to ensure that those
criminal acts do not find a safe harbor when they occur outside
the United States constitutes a proper exercise of Congress’s
authority under the Foreign Commerce Clause and the
Necessary and Proper Clause, as implementing the treaty
power. In our view, each power alone is sufficient. And
together they provide ample reason to reject Clay’s challenge
to the constitutionality of § 2423(c). We will thus affirm Clay’s
judgment of conviction and sentence.

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1
PORTER, Circuit Judge, concurring.
I agree with the majority that United States v.
Pendleton, 658 F.3d 299 (3d Cir. 2011), forecloses Clay’s
facial and as-applied challenges to 18 U.S.C. § 2423(c) and
(f)(1)1 under the Foreign Commerce Clause. And I agree that,
under Missouri v. Holland, 252 U.S. 416 (1920), § 2423(c) was
a valid exercise of Congress’s power under the Necessary and
Proper Clause.
I write separately because, respectfully, those
precedents are flawed. First, Pendleton wrongly adopted the
Supreme Court’s framework for the Interstate Commerce
Clause—articulated in United States v. Lopez, 514 U.S. 549
(1995)—as a floor to Congress’s power under the Foreign
Commerce Clause. And after adopting that framework,
Pendleton misapplied it. The majority’s attempt to buttress
Pendleton’s holding compounds that opinion’s errors. Were
we writing on a clean slate, I would join the Sixth Circuit and
several other judges in holding that § 2423(c) exceeds
Congress’s power under the Foreign Commerce Clause. See,
e.g., United States v. Rife, 33 F.4th 838, 845 (6th Cir. 2022),
cert. denied, 143 S. Ct. 356 (2022); United States v. Durham,
902 F.3d 1180, 1241 (10th Cir. 2018) (Hartz, J., dissenting);
United States v. Clark, 435 F.3d 1100, 1117 (9th Cir. 2006)
(Ferguson, J., dissenting); United States v. Bianchi, 386 F.
App’x 156, 163 (3d Cir. 2010) (not precedential) (Roth, J.,
concurring in part and dissenting in part).
Second, Holland undermined the Constitution’s
structure of enumerated and limited legislative powers,
1 I will refer to 18 U.S.C. § 2423(c) and (f)(1) together as
“§ 2423(c).”

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2
requiring us to enforce laws like § 2423(c) that are not valid
under any enumerated power. Although the majority properly
applies Holland here, I join my colleague and other judges who
have urged the Supreme Court to clarify the scope of that case.
See, e.g., United States v. Bond, 681 F.3d 149, 170 (3d Cir.
2012) (Ambro, J., concurring) (urging the Supreme Court to
“clarify” and “curtail” Holland), rev’d, 572 U.S. 844, 855
(2014) (invoking the constitutional-avoidance canon and
declining to address Holland); Rife, 33 F.4th at 848 (discussing
Holland’s errors); United States v. Park, 938 F.3d 354, 375
(D.C. Cir. 2019) (Griffith, J., concurring) (applying Holland
but observing that it “has come in for some criticism”).
I. Pendleton and the Foreign Commerce Clause
The Constitution authorizes 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. These
are referred to as the Foreign, Interstate, and Indian Commerce
Clauses. Haaland v. Brackeen, 599 U.S. 255, 320 (2023)
(Gorsuch, J., concurring). Unlike the Interstate and Indian
Commerce Clauses, “th[e] [Supreme] Court has never
thoroughly explored the scope of the Foreign Commerce
Clause.” Baston v. United States, 580 U.S. 1182, 1184 (2017)
(Thomas, J., dissenting from denial of certiorari) (internal
quotation marks and quoted source omitted). So the courts of
appeals have devised their own frameworks for implementing
that clause. Id. Prior to Clay’s case, Pendleton was our only
precedential opinion interpreting the scope of the Foreign
Commerce Clause.
In Pendleton, given “the absence of Supreme Court
precedent on the [Foreign Commerce Clause],” we grappled
with whether Lopez governs the Foreign Commerce Clause.

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3
658 F.3d at 307. Lopez held that Congress may enact a law
under the Interstate Commerce Clause if it relates to (1) “the
use of the channels of interstate commerce,” (2) “the
instrumentalities of interstate commerce,” or (3) “activities
having a substantial relation to interstate commerce.” 514 U.S.
at 558–59. Like the majority of our sister circuits, we
“agree[d]” that the Foreign Commerce Clause is broader than
the Interstate Commerce Clause because the former is not
constrained by “unique federalism concerns.” Pendleton, 658
F.3d at 308 (internal quotation marks and quoted source
omitted); see United States v. Bollinger, 798 F.3d 201, 210,
215–16 (4th Cir. 2015) (holding that the Foreign Commerce
Clause’s implementing framework must be broader than
Lopez); United States v. Lindsay, 931 F.3d 852, 861–62 (9th
Cir. 2019) (same); Park, 938 F.3d at 374 (same); Durham, 902
F.3d at 1209–10 (same); but see Rife, 33 F.4th at 844 (holding
that Lopez is ill-suited for implementing the Foreign
Commerce Clause). But we chose to analyze Pendleton’s
constitutional challenge under Lopez’s “time-tested
framework,” assuming that it must at the very least constitute
the floor to the Foreign Commerce Clause. Pendleton, 658
F.3d at 308 (internal quotation marks and quoted source
omitted).
We then concluded that § 2423(c) is facially valid under
Lopez’s channels-of-commerce prong. Id. at 311. Section
2423(c) criminalizes, in part, U.S. citizens and permanent
residents from traveling abroad and engaging in non-
commercial sexual conduct with minors, including when the
individual had no intent to commit a crime at the time he
traveled. Bollinger, 798 F.3d at 218 (“Section 2423(c) removed
Section 2423(b)’s condition that an individual could only be
prosecuted if he/she traveled in foreign commerce ‘for the

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4
purpose of engaging in any illicit sexual conduct.’” (quoting
18 U.S.C. § 2423(b))). We held that § 2423(c)’s “jurisdictional
element”—its requirement that an individual traveled at some
point in foreign commerce—is sufficient to establish an
“express connection to the channels of foreign commerce.”
Pendleton, 658 F.3d at 311 (internal quotation marks and
quoted source omitted). We analogized § 2423(c) to the Sex
Offender Registration and Notification Act (“SORNA”),2
which criminalizes the failure to register as a sex offender after
traveling in interstate commerce. Id. at 309. Because SORNA
is constitutional under Lopez, we reasoned that § 2423(c) must
be constitutional as well. Id. at 310 (referring to United States
v. Shenandoah, 595 F.3d 151, 160–61 (3d Cir. 2010),
abrogated on other grounds by Reynolds v. United States, 565
U.S. 432 (2012)).
As we must, the majority applies Pendleton here,
correctly reasoning that it forecloses Clay’s facial and as-
applied challenges to § 2423(c). But that case was wrongly
decided, and I am unconvinced by the majority’s attempt to
defend it. First, Lopez is a misfit for the Foreign Commerce
Clause when Congress purports to regulate extraterritorially.
And second, assuming Lopez applies, § 2423(c) does not
satisfy Lopez’s channels-of-commerce prong. While § 2423(c)
may satisfy Lopez’s substantial-relation prong, I would not use
that prong to implement the Foreign Commerce Clause.
2 See 18 U.S.C. § 2250.

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5
A. Lopez Does Not Constitute the Floor to the Foreign-
Commerce Power in Cases Involving
Extraterritorial Regulation.
I agree that Congress possesses greater power to
regulate domestically under the Foreign Commerce Clause
than it does under the Interstate Commerce Clause. But it does
not follow that the Foreign Commerce Clause confers greater
authority on Congress to regulate extraterritorially than the
Interstate Commerce Clause confers on Congress to regulate
domestically. Both Pendleton and the majority fail to grapple
with the latter proposition, which is critical because § 2423(c)
purports to regulate only extraterritorially. The Foreign
Commerce Clause’s history, text, and purpose demonstrate that
the Foreign Commerce Clause as applied extraterritorially is
narrower than the Interstate Commerce Clause as applied
domestically.
1
The historical record is replete with information
regarding the original understanding of the Foreign Commerce
Clause’s domestic application. But few sources shed light on
the Clause’s extraterritorial reach. Three sources prove most
illuminating.
The first is Alexander Hamilton’s essay on the Jay
Treaty,3 in which he expressly compared the Foreign
3 The Jay Treaty established free trade and resolved land
disputes between the United States and Great Britain
approximately a decade after the American War of
Independence. See Dan Lewerenz, Historical Context and the
Survival of the Jay Treaty Free Passage Right: A Response to

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6
Commerce Clause’s extraterritorial reach to the President’s
“power of treaty.” Alexander Hamilton, Camillus No. XXXVI
(1796), in VI The Works of Alexander Hamilton, at 164–71
(Henry Cabot Lodge ed., 1904). There, he explained that
Congress’s foreign-commerce power inside the several states
is broad. Id. at 168–69 (“Congress . . . may regulate, by law,
our own trade and that which foreigners come to carry on with
us[.]”). But the same is not true with respect to Congress’s
foreign-commerce power inside sovereign nations:
“[Congress] cannot regulate the trade which we may go to
carry on in foreign countries.” Id. at 169 (emphasis in original).
Stated more sharply, under the Foreign Commerce Clause,
“[Congress] can have no obligatory action whatsoever . . .
upon any person or thing within the jurisdiction of a foreign
nation”—for example, an American citizen inside a sovereign
nation. Id. at 167 (emphasis added). That is because Congress’s
legislative power inside those sovereign nations must depend
on the “will or regulations of those countries.” Id. at 169. The
exception to the federal government’s lack of power abroad, he
continued, is the President’s “power of treaty,” where the
United States and a sovereign nation may “mutual[ly]
regulat[e]” trade between one another, which is “binding upon
. . . [each country’s] respective citizens.” Id. at 168, 170.
Hamilton’s understanding of the Foreign Commerce
Clause foreshadowed the Supreme Court’s landmark opinion
in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824). In Gibbons,
Chief Justice Marshall, echoing Hamilton, explained that, with
respect to domestic regulation, the Foreign Commerce Clause
is broader than the Interstate Commerce Clause. While
Marcia Yablon-Zug, 27 Ariz. J. Int’l & Comp. L. 193, 200–01
(2010).

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7
Congress may not regulate “the exclusively internal commerce
of a State” under its interstate-commerce power, Congress may
regulate foreign commerce inside the several states “whenever
the subject exists.” Id. at 195. Tellingly, however, Chief Justice
Marshall did not say that Congress’s foreign-commerce power
extends into sovereign nations. That is consistent with his
understanding that Congress lacks such power. See, e.g., The
Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch) 116, 136
(1812) (Marshall, C.J.) (“[A sovereign nation has] full and
complete power . . . within its own territories,” which may not
be yielded absent “the consent of the nation itself.”); The
Antelope, 23 U.S. (10 Wheat.) 66, 122 (1825) (Marshall, C.J.)
(“No principle of general law is more universally
acknowledged, than the perfect equality of nations. . . . Each
[sovereign nation must] legislate[] for itself, but its legislation
can operate on itself alone.”).
Edmund Randolph—who “drafted the initial version of
the commerce clause”—likewise understood the foreign-
commerce power to apply only domestically. Christopher R.
Green, Tribes, Nations, States: Our Three Commerce Powers,
127 Penn St. L. Rev. 643, 655 (2023). During the debates on
the constitutionality of the First Bank of the United States, and
while serving as the first Attorney General of the United States,
Randolph explained that the “heads of the power to regulate
commerce with foreign nations” includes four powers:
1. [The power] to prohibit them [foreign nations] or
their commodities from our ports[;]
2. [The power] to impose duties on them where none
existed before, or to increase existing Duties on
them[;]
3. [The power] to subject them to any species of
Custom house regulations[;] [and]

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8
4. [The power] to grant them any exemptions or
privileges which policy may suggest.
Edmund Randolph, Opinion on the Constitutionality of the
Bank (1791), in 21 The Documentary History of the First
Federal Congress of the United States of America 1789–1791,
at 772 (Charlene Bangs Bickford ed., 2017). Nowhere did
Randolph mention that the Foreign Commerce Clause may
apply extraterritorially.
I find no evidence that the Founders understood
Congress’s foreign-commerce power inside sovereign nations
to be greater than Congress’s interstate-commerce power
inside the several states, or to exist at all. They plainly
understood the Foreign Commerce Clause to be greater than
the Interstate Commerce Clause only with respect to
Congress’s power inside, and vis a vis,4 the several states. They
did not state or imply that Congress has the power to “project[]
U.S. law into the sovereign territories of other nations under
the Foreign Commerce Clause.” Anthony J. Colangelo, The
Foreign Commerce Clause, 96 Va. L. Rev. 949, 977 (2010).
The majority cites founding-era sources mentioning the
Foreign Commerce Clause, but none asserts Congress’s
foreign-commerce power inside sovereign nations. In
4 “When it is said that Congress shall have power to regulate
commerce with foreign nations, this has reference to the
distribution of the general legislative power of regulating our
external trade, as far as it can be done by law, which is vested
in Congress, from that of regulating the trade of a State within
itself, which is left to each State.” Hamilton, supra, at 169–70.

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9
particular, the majority cites records from the Constitutional
Convention and certain state conventions, where some
Founders occasionally mentioned the Foreign Commerce
Clause. And it repeats an oft-quoted line in Japan Line, Ltd. v.
County of Los Angeles, 441 U.S. 434, 448 (1979), that “the
Founders intended the scope of the foreign commerce power
to be the greater” as compared to the interstate-commerce
power. Maj. Op. at 11–16. But each source5 speaks only to
either (1) Congress’s power over the states to exclusively
regulate foreign commerce—what is now referred to as the
“dormant Foreign Commerce Clause,”6 see Colangelo, supra,
5 Many sources have nothing whatsoever to do with Congress’s
foreign-commerce power. See, e.g., 2 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 124 (Johnathan Elliot ed., 1836)
[hereinafter The Debates in the Several State Conventions]
(Samuel Adams’s comment that the entire Commerce Clause
is “highly valuable”); id. at 106–07 (Nathaniel Gorham’s
comment that, via treaties, the United States should improve
the economic wellbeing of farmers and landholders);
Pamphlets on the Constitution of the United States, Published
During its Discussion by the People, 1787–1788, at 107 (Paul
Leicester Ford ed., 1888) (Melancthon Smith’s comment that
the United States’s economic output should expand globally);
id. at 379 (David Ramsay’s comment that, via treaties, the
United States’s economic output should expand globally).
6 See, e.g., 1 Records of the Federal Convention of 1787, at 133
(Max Farrand ed., 1911) (Roger Sherman’s comment that the
foreign-commerce power is an “object[] of the Union”); id. at
413 (James Wilson’s comment that the foreign-commerce

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10
at 960, or (2) Congress’s greater power under the Foreign
Commerce Clause than under the Interstate Commerce Clause
to regulate commerce inside the several states.7 They offer no
power “ought to reside in [the federal] government”); The
Federalist No. 42 (James Madison) (explaining that the
interstate-commerce power is “supplemental” to the foreign-
commerce power because the former ensured that the several
states would not tax each other’s goods, which would cause the
states “to resort to less convenient channels,” e.g., sovereign
nations, “for their foreign trade,” and it is the province of the
federal government “to regulate the intercourse with foreign
nations”); Japan Line, 441 U.S. at 448, 450 (striking down
California law that applied ad valorem property tax on cargo
contained aboard Japanese ships temporarily docked in
California ports because “[f]oreign commerce is preeminently
a matter of national concern”). See also Brown v. Maryland, 25
U.S. 419, 445–46 (1827) (recognizing that the foreign-
commerce power is in “the control” of “a single [federal]
government”).
7 See, e.g., 2 The Debates in the Several State Conventions,
supra note 5, at 350 (Alexander Hamilton’s comment that the
foreign-commerce power relates to “the whole system of
foreign intercourse,” without mention of its extraterritorial
application); 3 id. at 213 (James Monroe’s comment on how
“commerce” involves trade relationships); 4 id. at 18 (William
Richardson Davie’s comment on how the foreign-commerce
power should be used to compel trade relationships); The
Federalist No. 42 (James Madison) (as his only example of the
foreign-commerce power, stating that the power could be used
“to prohibit . . . the importation of slaves [to the United
States]”); Japan Line, 441 U.S. at 448 n.12 (citing The

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11
support for the constitutionality of extraterritorial legislation.
See Baston, 580 U.S. at 1185 (Thomas, J., dissenting from the
denial of certiorari) (“The courts of appeals have relied upon
statements by this Court [in Japan Line and other cases]
comparing the foreign commerce power to the interstate
commerce power, but have removed those statements from
their context.”).
2
The text of the Commerce Clause further supports the
conclusion that Congress’s foreign-commerce power inside
sovereign nations is narrower than its interstate-commerce
power inside the several states. While the Foreign and
Interstate Commerce Clauses both speak of Congress’s power
to “regulate Commerce,” they feature important prepositional
differences: the Foreign Commerce Clause speaks of
commerce “with foreign Nations,” while the Interstate
Commerce Clause speaks more broadly of commerce “among
the several States.” U.S. Const. art. I, § 8, cl. 3 (emphases
added).
In interpreting this textual difference, Gibbons again
provides helpful instruction. Chief Justice Marshall explained
that the word “among” means “intermingled with.” Gibbons,
22 U.S. (9 Wheat.) at 194. It connotes that Congress’s
interstate-commerce power extends inside “the external
boundary line of each State.” Id. Chief Justice Marshall did not
define the word “with.” But he explained that it means
Congress’s foreign-commerce power also extends inside “the
Federalist No. 42 and The Records of the Federal Convention,
which, as explained, support only the Foreign Commerce
Clause’s domestic application).

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12
jurisdictional lines of the several states.” Id. at 195. Otherwise,
he wrote, the foreign-commerce power “would be a very
useless power, if it could not pass those lines.” Id. But telling
yet again, Chief Justice Marshall did not state whether
Congress’s foreign-commerce power extends inside “the
jurisdictional lines” of sovereign nations. Id. That is because
he did not understand Congress to have that power. Id.
(explaining, as examples of Congress’s foreign-commerce
power inside jurisdictional lines, that it extends “[to] a foreign
voyage [that] may commence or terminate at a port within a
State” or “[to] [t]he deep streams which penetrate our country
in every direction”).
Historical context near the time that the Framers drafted
the Foreign Commerce Clause similarly illuminates the text’s
meaning. The phrase “[c]ommerce with foreign [n]ations”
almost identically mirrors the phrase used in Georg Frederich
von Martens’s 1788 treatise summarizing “the law of nations”
from 1748–1788. Georg Frederich von Martens, Summary of
the Law of Nations, Founded on the Treaties and Customs of
the Modern Nations of Europe 145 (William Cobbett trans.,
1795) (explaining the meaning of “commerce carried on with
foreign nations”). At that time, “[c]ommerce with foreign
[n]ations” referred only to a sovereign nation’s power inside
its territories to regulate commerce with foreign nations; it did
not refer to a legislature’s power to regulate inside sovereign
nations. Id. at 145, 148–49 (explaining that the phrase
“commerce carried on with foreign nations” means, in part,
that “[a] nation is . . . fully authorized . . . [t]o proscribe the
manner in which the commerce with its dominions shall be
carried on,” “[t]o prohibit the entry or exportation of certain
merchandises,” or “[t]o exercise freely its sovereign power
over the foreigners living in its territories”) (emphases added).

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13
The Founders were heavily influenced by “the law of
nations” and the Supreme Court has used its principles—
including Martens’s exposition of it—to interpret the scope of
the Foreign Commerce Clause. See, e.g., John Scrudato IV, A
Constitution Fit for a Nation: The Influence of the Law of
Nations on the Virginia Plan and James Madison’s
Constitutional Thought, 31 Yale J.L. & Human. 169, 204
(2020) (“Based on the evidence considered above, there is no
question that the role of treaties and the tenets of the Law of
Nations were key to the bargains struck at the [Constitutional]
Convention.”); David M. Golove & Daniel J. Hulsebosch, The
Law of Nations and the Constitution: An Early Modern
Perspective, 106 Geo. L.J. 1593, 1607 (2018) (“The
commitment of the Founders, especially the Federalists, to the
law of nations is difficult to miss in the historical sources.”);
Smith v. Turner, 48 U.S. (7 How.) 283, 416 (1849) (using
Martens’s understanding of “the law of nations” to inform
Congress’s foreign-commerce power, and summarizing only
domestic applications of that power).
Based on Gibbons and the common understanding of
“the law of nations” at the time of the Founding, the Foreign
Commerce Clause’s text does not countenance Congress
regulating inside sovereign nations. Nor does the text of the
Foreign Commerce Clause confer greater authority on
Congress to regulate inside sovereign nations than the
Interstate Commerce Clause confers on Congress to regulate
inside the several states.
The majority’s textual analysis of the Foreign
Commerce Clause misses the mark. To conclude that
Congress’s foreign-commerce power inside sovereign nations
is broader than its interstate-commerce power inside the
several states, the majority turns to founding-era definitions of

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14
the word “with.” Maj. Op. at 17. Specifically, it quotes Samuel
Johnson’s definition—“noting the means,” “in mutual
dealing,” and “noting connection”—and concludes that
Congress may regulate inside sovereign nations if the
commerce in question has some “connection” (or link)
between the foreign nation and the United States. Id. (quoting
2 Samuel Johnson, Dictionary of the English Language (1755)
(internal quotation marks omitted)). As a description of
Congress’s ability to regulate inside the United States under
the Foreign Commerce Clause, that is correct. Gibbons, 22
U.S. (9 Wheat.) at 195.
But respecting Congress’s ability to regulate commerce
inside foreign nations, the majority’s argument is precisely
backwards. The Foreign Commerce Clause’s preposition,
“with foreign Nations,” in contrast to the Interstate Commerce
Clause’s more comprehensive formulation, “among the several
States,” means that Congress’s power to regulate foreign
commerce extraterritorially is lesser—not greater—than its
power to regulate interstate commerce. That is because
Congress does not have plenary power to regulate any foreign
commerce, or instrumentalities and channels of foreign
commerce, or foreign commerce that arguably affects the
United States. The commerce in question must be “with”
foreign nations and “with” the United States. Absent that
connection, commercial activity occurring within foreign
nations, or among foreign nations but not “with” the United
States, falls outside the scope of Congress’s enumerated
power. See Gibbons, 22 U.S. (9 Wheat.) at 195 (“enumeration
presupposes something not enumerated”); Colangelo, supra, at
985–88; Anthony J. Colangelo, Constitutional Limits on
Extraterritorial Jurisdiction: Terrorism and the Intersection of

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15
National and International Law, 48 Harv. Int’l L.J. 121, 146–
51 (2007).
In addition, the majority wrongly compares the Foreign
Commerce Clause to the Indian Commerce Clause, Maj. Op.
at 17–18, which similarly allows Congress to regulate
commerce “with the Indian Tribes,” U.S. Const. art. I, § 8, cl.
3. The argument goes that, because the Supreme Court
construes the Indian Commerce Clause more broadly than the
Interstate Commerce Clause—“provid[ing] Congress with
plenary power to legislate in the field of Indian affairs,” Cotton
Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989)—
Congress must also possess broad authority under the Foreign
Commerce Clause. See, e.g., Bollinger, 798 F.3d at 211–12
(making this argument); Lindsay, 931 F.3d at 861 (same). But
I agree with Judge Hartz that the Indian Commerce Clause says
little about Congress’s power inside sovereign nations.
Durham, 902 F.3d at 1243 (Hartz, J., dissenting). Unlike with
sovereign nations, the Supreme Court understands “Indian
Tribes” to constitute “dependent sovereign[s].” United States
v. Lara, 541 U.S. 193, 203 (2004) (emphasis added). In
addition, to support Congress’s plenary power over Indian
tribes, the Supreme Court has pointed to an amalgamation of
constitutional powers—not the Indian Commerce Clause in
isolation. Id. at 200–01 (referencing “the Indian Commerce
Clause,” “the Treaty Clause,” “the Property Clause,” and
“preconstitutional powers necessarily inherent in any Federal
Government, namely powers that this Court has described as
necessary concomitants of nationality” (internal quotation
marks and quoted source omitted)); Haaland, 599 U.S. at 275
(“Admittedly, our precedent [on Congress’s power over Indian
tribes] is unwieldy, because it rarely ties a challenged statute
to a specific source of constitutional authority.”); see also

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16
Naomi Harlin Goodno, When the Commerce Clause Goes
International: A Proposed Legal Framework for the Foreign
Commerce Clause, 65 Fla. L. Rev. 1139, 1191–92 (2013)
(“[I]n discussing the scope of the Indian Commerce Clause, the
[Supreme] Court has not relied on or analyzed the Foreign
Commerce Clause. Thus, the Indian Commerce Clause legal
framework should not be, and has not been, superimposed onto
the Foreign Commerce Clause.”).
3
Finally, general principles of sovereignty also
demonstrate that Congress’s foreign-commerce power inside
sovereign nations is narrow or non-existent. The Founders had
fundamental concerns with a legislature imposing its laws
inside sovereign nations. See, e.g., The Schooner Exch., 11
U.S. (7 Cranch) at 136–37 (Marshall, C.J.) (“The jurisdiction
of the nation within its own territory is necessarily exclusive
and absolute. It is susceptible of no limitation not imposed by
itself. Any restriction upon it, deriving validity from an
external source, would imply a diminution of its sovereignty[.]
. . . [Consequently] [t]his full and absolute territorial
jurisdiction being alike the attribute of every sovereign, . . . [is]
incapable of conferring extra-territorial power[.]”); The
Antelope, 23 U.S. (10 Wheat.) at 122 (Marshall, C.J.) (“[N]o
[nation] can rightfully impose a rule on another.”). And that
principle applies to the Foreign Commerce Clause’s
application inside sovereign nations.
The majority argues that the Foreign Commerce Clause
is broader than the Interstate Commerce Clause because the
former is not constrained by federalism concerns. Maj. Op. 18–
19; see Lopez, 514 U.S. at 557 (“[T]he scope of the interstate
commerce power must be considered in the light of our dual

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17
system of government[.]” (internal quotation marks and quoted
sourced omitted)). True, federalism concerns are absent in the
Foreign Commerce Clause. Durham, 902 F.3d at 1205. And it
is implausible that principles of federalism and sovereignty are
on equal footing in our Constitution; federalism is “an integral
part of our constitutional structure” in ways that sovereignty is
not. Id. But given the Founders’ sovereignty concerns (both in
the Foreign Commerce Clause and otherwise), the absence of
federalism concerns in the Foreign Commerce Clause does not
somehow imply that the Foreign Commerce Clause is broader
than the Interstate Commerce Clause in all of its applications.
See United States v. Al-Maliki, 787 F.3d 784, 793 (6th Cir.
2015) (“[A]n unbounded reading of the Foreign Commerce
Clause allows the federal government to intrude on the
sovereignty of other nations—just as a broad reading of the
Interstate Commerce Clause allows it to intrude on the
sovereignty of the States.”).
* * *
Because Congress’s foreign-commerce power inside
sovereign nations is narrower than its interstate-commerce
power inside the several states, Lopez is ill-suited for
implementing the Foreign Commerce Clause in this case. We
should instead look to the Foreign Commerce Clause’s text and
original meaning to interpret its scope. Rife, 33 F.4th at 843–
44. Based on those sources, it appears that Congress lacks any
power to regulate inside sovereign nations under the Foreign
Commerce Clause. See supra, at 5–15. Accordingly,
§ 2423(c)—which purports to regulate a U.S. citizen’s or
permanent resident’s non-commercial conduct inside
sovereign nations—does not survive scrutiny. I would thus join
the Sixth Circuit and other judges who have determined that
§ 2423(c) is unconstitutional under the Foreign Commerce

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Clause. See, e.g., Rife, 33 F.4th at 845; Durham, 902 F.3d at
1241 (Hartz, J., dissenting); Clark, 435 F.3d at 1117 (Ferguson,
J., dissenting); Bianchi, 386 F. App’x at 163 (Roth, J.,
concurring in part and dissenting in part).
B. Pendleton and the Majority Misapply Lopez.
I take issue with Pendleton and the majority for an
additional reason. Assuming that Lopez does apply to the
Foreign Commerce Clause for Congress’s power to regulate
extraterritorially, we erred in Pendleton in holding that
§ 2423(c) satisfies the channels-of-commerce prong. While §
2423(c) is a more comfortable fit under Lopez’s substantial-
relation prong, as the majority recognizes, I would not analyze
the Foreign Commerce Clause under that prong.
1
It is well-settled that, under the first prong, Congress
may regulate the use of “the channels of interstate commerce”
to prevent “immoral and injurious uses.” Heart of Atlanta
Motel, Inc. v. United States, 379 U.S. 241, 256 (1964) (internal
quotation marks and quoted source omitted). And Congress
may regulate non-commercial activity. Id. (stating that it does
not “make any difference whether the transportation is
commercial in character”). However, under this authority, the
Supreme Court has affirmed such regulations only in cases
where “the person or thing barred from interstate commerce
was tainted by either prior immoral conduct or the intent to
engage in such conduct upon completion of the journey.”
Durham, 902 F.3d at 1255 (Hartz, J., dissenting) (collecting
cases). For example, the Supreme Court upheld regulations
where an individual trafficked illegal lottery tickets through the
channels of interstate commerce, Champion v. Ames, 188 U.S.

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19
321 (1903), and where an individual transported women
through interstate commerce for purposes of future
prostitution, Hoke v. United States, 227 U.S. 308 (1913).
Section 2423(c) does not fit into that framework. It
requires a defendant neither to have engaged in prior immoral
conduct nor to have had an intent to engage in future criminal
conduct at the time he travels. See Bollinger, 798 F.3d at 218.
In essence, “[it] is not really a regulation of channels of
commerce at all, but is rather an attempt to ‘hook’ subsequent
conduct by defendants to Congress’s foreign commerce
authority by tying the conduct to some previous foreign
travel.” Colangelo, Foreign Commerce Clause, supra, at 996–
97. Stated differently, § 2423(c)’s purported constitutionality
is based only in its “jurisdictional hook”—its requirement that
an individual traveled at some point in foreign commerce. That
does not survive scrutiny under Supreme Court precedent. See
Durham, 902 F.3d at 1255 (Hartz, J., dissenting); see also
United States v. Rodia, 194 F.3d 465, 472 (3d Cir. 1999) (“The
mere presence of a jurisdictional element . . . does not in and
of itself insulate a statute from judicial scrutiny under the
Commerce Clause, or render it per se constitutional.” (quoting
United States v. Bishop, 66 F.3d 569, 585 (3d Cir. 1995))).
To be sure, Pendleton finds support in SORNA, which
we have declared constitutional under Lopez’s first prong
because of its “jurisdictional hook.” Shenandoah, 595 F.3d at
160–61, abrogated on other grounds by Reynolds, 565 U.S.
432. But I agree with Judge Hartz that SORNA is
distinguishable and fits more comfortably under Supreme
Court precedent. Under SORNA, the defendant did commit a
prior unlawful act (a child sex offense) before traveling in
interstate commerce. Durham, 902 F.3d at 1256 (Hartz, J.,
dissenting). So the “person . . . barred from interstate

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20
commerce was tainted by . . . prior immoral conduct.” Id. at
1255 (Hartz, J., dissenting). “And the SORNA registration
requirement is an incidental condition for permitting such
persons to travel in those channels.” Id. at 1256 (Hartz, J.,
dissenting).
Pendleton’s errors regarding the channels-of-commerce
prong are made obvious by their consequences. Pendleton
“mean[s] that any time a U.S. citizen or permanent resident
travels in foreign commerce, every subsequent act by that
individual”—commercial or non-commercial—“is within
Congress’s regulatory authority.” Colangelo, Foreign
Commerce Clause, supra, at 1000. Congress could, for
example, regulate a U.S. citizen’s jaywalking in Toronto,
gambling in London, or consumption of foie gras in Paris.
Clark, 435 F.3d at 1120 (Ferguson, J., dissenting); Durham,
902 F.3d at 1263 (Hartz, J., dissenting). The government
conceded this point at argument. See Oral Arg. Tr. at 29:8–11
(conceding foie gras example). But Congress does not possess
“such a general international police power.” Bianchi, 386 F.
App’x at 164 (Roth, J., concurring in part and dissenting in
part). “If Congress . . . can regulate virtually anything,” then it
“is no longer [a branch] of limited and enumerated powers.”
Gonzales v. Raich, 545 U.S. 1, 57–58 (2005) (Thomas, J.,
dissenting).
The majority’s response to this point is unavailing. It
finds “compelling” other judges’ and scholars’ concerns that
Pendleton “permit[s] Congress to subject an American to
federal prosecution for any offense committed abroad,” but it
contends that those concerns “do not apply here” because
Clay’s crime (a child sexual offense) does not involve “just any
offense committed abroad.” Maj. Op. at 23 (internal quotation
marks and quoted source omitted). That misses the point.

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21
Clay’s acts were certainly immoral, but Pendleton’s reasoning
does not stop at sexual offenses under § 2423(c). Pendleton
answers whether, under Lopez’s first prong, Congress may
regulate any non-commercial, extraterritorial conduct of
whatever nature, solely by virtue of an individual’s travel in
foreign commerce. 658 F.3d at 310–11. And it answers that
question broadly: Congress has carte blanche. Id.
2
Section 2423(c) fits more comfortably under Lopez’s
substantial-relation prong. Under the Supreme Court’s
interpretation of that prong, Congress may regulate non-
commercial and intrastate activity, so long as it “substantially
affect[s] interstate commerce.” Lopez, 514 U.S. at 559. The
regulation must be an “essential part of a larger regulation of
economic activity, in which the regulatory scheme could be
undercut unless the intrastate activity were regulated.” Id. at
561; see Raich, 545 U.S. at 36 (Scalia, J., concurring). The
majority properly concludes that § 2423(c), though regulating
non-commercial sexual conduct, is “an essential part of a
broader scheme to directly regulate” the commercial sex
tourism market and thus satisfies Lopez’s third prong. Maj. Op.
at 29–30 (emphases omitted).
My issue is not with the majority’s application of the
prong but instead with the prong itself. I agree with the Sixth
Circuit that the Supreme Court “depart[ed] from the original
meaning of ‘commerce’” in Lopez’s third prong. Rife, 33 F.4th
at 843. Originally, “commerce” meant “trade and
transportation thereof, as opposed to [non-commercial and
intrastate] activities preceding those things.” Id. at 842; see
Lopez, 514 U.S. at 585–89 (Thomas, J., concurring)
(explaining the historical meaning of “commerce,” which is

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22
largely uncontested); see also Robert G. Natelson, The Legal
Meaning of “Commerce” in the Commerce Clause, 80 St.
John’s L. Rev. 789, 805 (2006) (“commerce” meant exchange,
traffic, or commercial intercourse); Randy F. Barnett, The
Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev.
101, 116 (2001) (“commerce” referred to trade or exchange,
not all gainful activity). Even assuming the Foreign Commerce
Clause as applied extraterritorially is broader than the
Interstate Commerce Clause, I see “[no] compulsion to add
[Lopez’s third prong] to the Foreign Commerce Clause” here.
Rife, 33 F.4th at 844 (declining to extend Lopez’s third prong
to the Foreign Commerce Clause). And Supreme Court
precedent does not compel us to do so. See Rodriguez de Quijas
v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989) (stating
lower courts must follow Supreme Court precedent if it
“directly controls” the issue before them); Baston, 580 U.S. at
1184 (Thomas, J., dissenting from the denial of certiorari)
(“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.” (internal quotation
marks and quoted source omitted)). Without such direction
from the Supreme Court, I would refrain from extending
Lopez’s expansive and unhistorical treatment of the Interstate
Commerce Clause to the Foreign Commerce Clause.
II. Holland and Congress’s “Treaty Power”
Because I conclude that Congress does not have the
power to enact § 2423(c) under the Foreign Commerce Clause,
Holland’s misinterpretation of congressional power is
troubling here. Article II of the Constitution 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[.]” U.S. Const. art. II, § 2, cl. 2. Article

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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.” Id., art. I, § 8, cl. 18. “Read
together, the two Clauses empower Congress to pass laws
necessary and proper for carrying into Execution . . . [the]
Power . . . to make Treaties.”8 Bond, 572 U.S. at 874–75
(Scalia, J., concurring) (internal quotation marks and quoted
source omitted).
In Holland, the Supreme Court interpreted the scope of
Congress’s treaty power. With no analysis whatsoever, it
asserted: “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.” Holland, 252 U.S. at 432. In other words, the
Court declared that Congress not only has the power to help
make treaties, but it can also enact laws purporting to
implement a valid treaty after it has been made. Holland
therefore allows Congress to increase its legislative power by
treaty when no enumerated power would otherwise authorize
its legislation. Nicholas Quinn Rosenkranz, Executing the
Treaty Power, 118 Harv. L. Rev. 1867, 1868 (2005).
Holland is in “deep tension” with the Constitution. Id.
The “predominant view” regarding the Executive’s power to
make treaties is that “there are [no] subject-matter limitations
whatsoever on that power,” id. at 1878, other than matters that
8 I will refer to this power as Congress’s “treaty power.” See
United States v. Lara, 541 U.S. 193, 201 (2004) (referring to
it in that manner).

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“the Constitution forbids [e.g., rights enshrined in the Bill of
Rights],” Asakura v. City of Seattle, 265 U.S. 332, 341 (1924)
(internal quotation marks and quoted source omitted). If that is
true, the Executive could expand the power of the Legislature
almost “without limit.” Rosenkranz, supra, at 1893; Bond, 572
U.S. at 878 (Scalia, J., concurring). Under Holland, Congress
need not adhere to the Constitution’s “basic . . . scheme of
enumerated legislative powers” but instead may legislate via
treaty. Rosenkranz, supra, at 1894; see also Bond, 572 U.S. at
874–76 (Scalia, J., concurring) (explaining that the Holland
Court misread the plain text of the Congress’s treaty power,
which allows Congress to pass laws necessary and proper only
to make a treaty, not implement it).
That issue is front and center here. Other than the
Foreign Commerce Clause, the government does not rely on
any enumerated power to justify § 2423(c)’s constitutionality,
instead relying only on the treaty power.9 That argument
9 In a footnote, the majority suggests that “nationality-based
jurisdiction” may justify § 2423(c)’s constitutionality, though
neither party presented that argument in briefing. Maj. Op. at
9–10 n.3. “Nationality-based jurisdiction” is a doctrine rooted
in international law holding that a nation’s legislature may
prosecute its citizens for crimes committed abroad, solely by
virtue of their citizenship. Geoffrey R. Watson, Offenders
Abroad: The Case for Nationality-Based Criminal
Jurisdiction, 17 Yale J. Int’l L. 41, 42 (1992). That principle is
troubling here for many reasons. No enumerated power in our
Constitution supports the doctrine. Id. at 63. Nor did the
Founders recognize it; they expected only that “the United
States [would] . . . exercise criminal jurisdiction over crimes
committed in U.S. territory[.]” Id. at 44–45 (citing sources
discussing the history). In addition, the few early-1900s

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prevails under Holland because, as the majority properly
concludes, § 2423(c) has a “rational[ ] relat[ionship]” to a
treaty—the so-called Optional Protocol. United States v.
Comstock, 560 U.S. 126, 134 (2010). However, our
Constitution’s scheme of enumerated legislative powers
cannot bear the weight of Holland. The treaty power is simply
a “power to ‘make Treaties’ that are consistent with provisions
of the Constitution allocating federal governmental power and
that do not violate prohibitory provisions of the Constitution
framed broadly enough to apply to the treaty-making
authority.” Gary Lawson & Guy Seidman, The Jeffersonian
Treaty Clause, 2006 U. Ill. L. Rev. 1, 56 (2006). Treating the
Article II treaty power as a source of unbounded legislative
power independent of the Constitution’s overall structure of
carefully enumerated powers is anomalous, at best. As other
judges have, I respectfully urge the Supreme Court to clarify
the scope of Holland and its place in our constitutional design.
See, e.g., Bond, 681 F.3d at 169 (Ambro, J., concurring); Rife,
33 F.4th at 845–48; Park, 938 F.3d at 375 (Griffith, J.,
concurring).
Supreme Court cases purportedly invoking the doctrine
involved cases where the individual’s crime directly implicated
the United States. See, e.g., Blackmer v. United States, 284
U.S. 421, 436–38 (1932) (involving U.S. citizen, residing in
Paris, who refused to comply with subpoena to return to the
United States to testify in the Supreme Court of the District of
Columbia); United States v. Bowman, 260 U.S. 94, 99–102
(1922) (applying extraterritorially a statute that made it
criminal offense to conspire to defraud a corporation owned by
the United States government). That is not the case with §
2423(c).

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* * *
Pendleton and Holland, though flawed, compel our
judgment here. So I respectfully concur.

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1
AMBRO, Circuit Judge, concurring
I agree with my colleagues that our decision in United
States v. Pendleton, 658 F.3d 299 (3d Cir. 2011), and the Su-
preme Court’s decision in Missouri v. Holland, 252 U.S. 416
(1920), preclude Clay’s facial and as-applied challenges to 18
U.S.C. §§ 2423(c) and (g)(1) (denominated as (f)(1) before De-
cember 22, 2023). I also agree with Judge Hardiman that the
Supreme Court’s decision in United States v. Lopez, 514 U.S.
549 (1995), provides the analytical framework for evaluating
Congress’s exercise of its power under the Foreign Commerce
Clause. And I agree with his conclusion that §§ 2423(c) and
(g)(1) are constitutional exercises of that power under the sub-
stantial-effects prong because criminalizing conduct like
Clay’s, though noncommercial, is an “essential part of a larger
regulation of economic activity”—international sex tourism—
and because that “regulatory scheme could be undercut unless
the [foreign] activity were regulated.” Lopez, 514 U.S.at 561.
I disagree with Judge Hardiman, however, in one re-
spect. I believe, as Judge Porter explains well, that §§ 2423(c)
and (g)(1) fail to satisfy Lopez’s channels-of-commerce prong.
Under Pendleton’s logic, Congress’s authority to regulate the
conduct of American residents abroad is seemingly boundless.
I also join Judge Porter in continuing to “urge the Supreme
Court to clarify the scope of Holland and its place in our con-
stitutional design.” Porter Concurrence Op. at 24 (citing United
States v. Bond, 681 F.3d 149, 169 (3d Cir. 2012) (Ambro, J.,
concurring)).
Despite these reservations, I recognize that Pendleton
and Holland bind us, and so I respectfully concur.

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