Tuesday, November 13, 2012
A three-judge panel of the Eleventh Circuit ruled in U.S. v. Ballaizac-Hurtado that Congress lacks authority to enact the Maritime Drug Law Enforcement Act. The ruling reverses four convictions of defendants who were charged under the Act for drug crimes that occurred in Panama.
The ruling could strike a blow at federal enforcement of extraterritorial drug crimes not committed on the high seas. (The court distinguished those cases, because Congress has independent authority to restrict conduct on the high seas.) While the ruling is limited to the facts of the case (i.e., outside the U.S., but not on the high seas), it's easy to see how it could apply to other, similar cases. That means for now--unless and until the government appeals and wins--federal criminal charges under the Act for drug trafficking outside the U.S., but not on the high seas, won't stand in the Eleventh Circuit.
The court held that Congress lacked authority to enact the Act as applied to the defendants under its power to "define and punish . . . Offenses against the Law of Nations." Art. I, Sec. 8, cl. 10. The problem: The Clause authorizes Congress to "define and punish" offenses that are recognized under customary international law; and drug trafficking is not one of them. The court reviewed the history (or lack of history) of the law of international drug trafficking from the founding period through today and concluded that there simply was no customary international law prohibiting drug trafficking. Instead, "unlike genocide, the international community has addressed drug trafficking at the domestic, instead of international, level." Op. at 21.
As to any treaties on drug trafficking, the court said that certain affected States simply ignore them, making their obligations "not a matter of mutual legal obligation under customary international law." The court explained:
The practice of these specially affected States evidences that drug trafficking is not yet considered a violation of customary international law. Governments corrupted by the interests of drug traffickers are not simply unable to prosecute drug traffickers, but are often unwilling to do so because their economies are dependent upon the drug trade. The persistent failure of these specially affected States to comply with their treaty obligations suggests that they view the curtailment of drug trafficking as an aspirational goal, not a matter of mutual legal obligation under customary international law.
Op. at 20. (As the court explained, "[t]reaties may constitute evidence of customary international law, but 'will only constitute sufficient proof of a norm of customary international law if an overwhelming majority of States have ratified the treat, and those States uniformly and consistently act in accordance with its principles.'" Op. at 18, quoting Flores v. S. Peru Copper Corp., 414 F.3d 233 (2d Cir. 2003).)
The court also ruled that the power to "define . . . Offenses against the Law of Nations" didn't stretch congressional authority any, because to "define" simply means to re-state, not to re-define or to create. For example, the Clause doesn't give Congress power to re-define "piracy" as including "murder" and thus expand its authority by way of mere definition. Instead, to "define" authorizes Congress only to codify existing customary international law--as it actually exists. The court looked to the text, history, and structure of the Clause to arrive at this conclusion, and, in particular, the limited power of the federal government.