Jurisdiction: Federal Power and Territorial Principles

The materials in this chapter address one constitutional basis for much of federal criminal law that should be familiar—the interstate commerce clause in Article I, section 8—followed by materials on that authorize as well as constrain the application of U.S. federal criminal law extraterritorially—i.e., beyond U.S. borders and territorial waters. The foreign commerce clause, as well as the Define and Punish Clause, provide important constitutional bases for federal legislation with extraterritorial reach. But once the United States (or any nation state) extends its domestic law beyond its borders, international law comes into play, two primary sources of which—introduced below—are customary international law and treaties. See Restatement (Third) of the Foreign Relations Law of the U.S. § 102 (Hein). U.S. domestic law recognizes and incorporates international law, which can constrain, authorize, and (pursuant to certain treaties) obligate the U.S. to enact and enforce extraterritorial legislation.

As you approach these materials, focus on both the domestic and international law that govern when national courts can assume jurisdiction over extraterritorial conduct. When does the United States have jurisdiction to legislate about—and then prosecute and adjudicate—criminal conduct that occurs outside its borders? Under domestic law, Congress must have constitutional authority to enact criminal statutes, and—when a statute is not clear on this point—courts must interpret a statute to determine whether it is intended to have extraterritorial effect. It is a separate question whether international law permits the United States to apply its law to particular conduct. The (delightfully named) Charming Betsy canon directs courts to keep the answer to the latter in mind when resolving the former: “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains ….” Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (Marshall, C.J.). The other important interpretive rule is the presumption defined in United States v. Bowman.

Two doctrines of United States law are also relevant. The first is the famous dictum by Marshall, C.J. that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains . . . .” Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). See also Restatement (Third) of the Foreign Relations Law of the United States § 115 (Hein link) (noting that a federal law “supersedes an earlier rule of international law or a [treaty] provision … as law of the United States if the purpose … to supersede the earlier rule or provision is clear”—or if the two are irreconcilable—but when the U.S. ratifies aa treaty it “becomes effective as law of the United States [and] supersedes as domestic law any inconsistent preexisting provision of a law”).

A note about the Restatement of Foreign Relations Law: The Restatment (Third) appeared in 1987; in 2018, the ALI issued the Restatement (Fourth), but the Fourth is only a partial revision of its predecessor. Specifically, the Restatement (Fourth) is the most recent version of Parts III & IV (i.e., § 300 et seq. and § 400 et seq.), but the Restatement (Third) remains the most current version of Parts I & II Thus you will see references to the Restatement (Third) for  § 100 et seq. and § 200 et seq.; those provisions have not been superseded.