United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
Mehta United States District Judge
James Marvin Reed is charged in a two-count indictment that
alleges he engaged in illicit sexual conduct with two
different minors while in a foreign country. In Count One,
Defendant is charged with violating 18 U.S.C. § 2423(c),
between January and December 2007, by traveling to the
Philippines and exchanging money for sex with a minor child.
In Count Two, Defendant is charged with violating 18 U.S.C.
§§ 2423(c) and 2423(e), between January and August
2016, by residing in the Philippines and molesting and
attempting to molest his own minor child.
moves the court to dismiss the indictment against him as
unconstitutional for several reasons. First, he claims that
prosecuting him for a crime purportedly committed more than
eight years prior to when he was formally charged constitutes
impermissible pre-indictment delay. Second, he argues that
the law under which he is charged in Count Two was enacted
after part of his alleged conduct took place, making it
retroactive legislation that violates the Ex Post Facto
Clause. Third, Defendant submits that Congress did not have
constitutional authority to enact 18 U.S.C. § 2423(c).
Fourth, he moves to sever the Counts and proceed with
separate trials if both Counts in the indictment are to
stand. Lastly, Defendant asserts that the indictment must be
dismissed because the District of Columbia is the wrong venue
in which to try him.
thorough review of the parties' submissions and
applicable law, the court will allow trial to proceed on
Count One of the indictment, but not on Count Two. As to
Count One, the court concludes that Congress has authority
under the Foreign Commerce Clause to criminalize the conduct
alleged therein, and Defendant's Due Process Clause
rights were not violated by the Government obtaining an
indictment years after the events in question. As to Count
Two, the court concludes that the charges do not violate the
Ex Post Facto Clause, but will dismiss Count Two because
Section 2423(c) is unconstitutional as applied to the conduct
alleged. Congress does not possess authority under either the
Foreign Commerce Clause or the Necessary and Proper Clause to
criminalize Defendant's alleged act of sexually molesting
and attempting to sexually molest his four-year-old daughter
while residing in the Philippines. In light of that
conclusion, the court denies Defendant's Motion to Sever
as moot. The court also rejects, at this juncture,
Defendant's challenge to venue in the District of
ruling on a motion to dismiss an indictment, the district
court assumes the truth of the factual allegations in the
indictment and the Government's proffered facts.
United States v. Ballestas, 795 F.3d 138, 148-49
(D.C. Cir. 2015). Accordingly, in order to resolve the
motions to dismiss presently before the court, the court
accepts as true the following facts.
James Marvin Reed, a citizen of the United States, is a
United States Navy veteran who has resided abroad for several
years, with occasional trips to the United States.
See Gov't's Resp. to Def.'s Mot. to
Dismiss the Indictment, ECF No. 25 [hereinafter
Gov't's Opp'n, ECF No. 25], at 2 & n.2, 5;
Status Conf. Tr. (draft), May 5, 2017, at 9. In particular,
Defendant traveled to the Philippines from the United States
in January 2007 and remained there until at least 2008.
See Gov't's Opp'n, ECF No. 25, at 5. On
December 15, 2015, a grand jury indicted Defendant on one
count of traveling in foreign commerce and engaging in
illicit sexual conduct with a minor child (Minor A), in
violation of 18 U.S.C. § 2423(c) (2007). See
Indictment, ECF No. 1; Arrest Warrant, ECF No. 9. The grand
jury returned a Superseding Indictment on May 4, 2017.
See Superseding Indictment, ECF No. 26. The new
indictment repeats the original charge (Count One) and adds a
second count against Defendant for residing in a foreign
country and engaging and attempting to engage in illicit
sexual conduct with a different minor victim (Minor B), in
violation of 18 U.S.C. § 2423(c), (e) (2016) (Count
Two). See Superseding Indictment, ECF No.
original Indictment arose from a years-long investigation
both in the Philippines and the United States. According to
the Government, the department of Homeland Security
Investigations (“HSI”) in Manila, Philippines
(“HSI Manila”) first received information about
the events giving rise to original Indictment in November
2008. See Gov't's Resp. to Def.'s Mot.
to Dismiss Indictment Due to Pre-Indictment Delay, ECF No. 24
[hereinafter Gov't's Opp'n, ECF No. 24], at 1.
HSI Manila began a covert operation to locate Defendant a few
weeks later, but those efforts proved unsuccessful and
investigative efforts waned when the original case agent
retired between 2010 and 2012. See Id. at 2. In
November 2012, after learning the case remained open, HSI
agents in Manila and Washington, D.C., re-interviewed Minor A
and began actively pursuing Defendant again. Id.
Initial efforts to obtain Defendant's DNA from the United
States military and when he passed through airport security
in San Francisco, California, in December 2012, proved
unsuccessful. Id. In the early months of 2013, the
Government subpoenaed Camber Corporation-believed to be
Defendant's former employer-as well as Citibank and Delta
Airlines to provide materials to a grand jury. Id.
at 3. In late 2013, investigators successfully obtained DNA
samples from Minor A and her child. Id. In April
2014, the Government requested statistical records of live
births in the Philippines from the Government of the
Philippines, which produced those records in September 2015.
Id. Also in 2014, HSI pursued a lead in Guam,
believing Defendant might be living there, and made a summons
request to Facebook in a further attempt to locate Defendant.
Id. Investigators were only able to determine
Defendant's general location in 2015, after they
identified the internet protocol address affiliated with his
e-mail account, which placed him in the Philippines.
Id. Defendant was taken into custody in the
Philippines in August 2016, at which point he provided HSI
Manila agents with a DNA sample and his address in Butuan,
Philippines. Id. at 4. He was deported to the United
States in September 2016. Id.
Government asserts that the evidence pertaining to Count One
will show that Defendant traveled from the United States to
the Philippines and subsequently engaged in a commercial,
sexual relationship with Minor A. See
Gov't's Opp'n, ECF No. 25, at 5-6. According to
the Government, on January 17, 2007, Defendant boarded a
flight in Hartford, Connecticut, to Minneapolis, Minnesota;
traveled onward to Narita, Japan; and reached his final
destination- Manila, Philippines-on January 18, 2007.
Id. at 5. In September 2007, while in the
Philippines, a mutual acquaintance introduced Defendant to
Minor A and told Defendant that Minor A was 15 years old
(though, in reality, she was 14 years old). Id.
Defendant gave Minor A his business card and, a few days
later, invited her to his residence at the Castle Peak Tower
condominium complex, in Cebu City, Philippines. Id.
Minor A visited Defendant at his home approximately ten times
between September and December 2007 and engaged in sexual
intercourse with Defendant during each visit. Id. at
5-6. The first time Minor A visited Defendant at his
residence, Defendant gave her a glass of wine, took nude
photographs of her, engaged in sexual intercourse with her,
and offered her 2, 000 pesos and to pay for her school
expenses. Id. at 6. On each visit that followed,
Defendant paid Minor A 1, 000 pesos. Id. Minor A
gave birth to a child the following year, when she was 15
years old. Id. According to DNA testing, there is a
99.9999% probability that Defendant is the father of Minor
A's child. Gov't's Opp'n, ECF No. 24, at 4.
respect to Count Two, the Government submits that its
evidence will show Defendant resided in the Philippines in
2016 and sexually assaulted his four-year-old daughter, Minor
B. See Gov't's Surreply, ECF No. 37, at 2;
Status Conf. Tr. (draft), May 5, 2017, at 4 (explaining that
Defendant is biologically related to Minor B); Hr'g Tr.
(draft), June 15, 2017, at 20. The Government proffers that from
January to August 2016, Minor B was in Defendant's care,
control, and custody in the Philippines and, during those
periods of custody, Defendant contacted and attempted to
contact his penis with Minor B's vulva, as well as
digitally penetrated Minor B's vaginal opening.
Gov't's Opp'n to Def.'s Mot. to Sever, ECF
No. 36 [hereinafter Gov't's Opp'n, ECF No. 36],
at 3; Gov't's Surreply, ECF No. 37, at 2. Minor B
eventually disclosed Defendant's conduct to her mother
and grandmother. Gov't's Opp'n, ECF No. 36, at 3.
has moved to dismiss the Superseding Indictment on the
grounds that (1) Count One violates his rights under the
Fifth Amendment's Due Process Clause because the
Government waited more than eight years to prosecute him; (2)
Count Two violates his rights under the Ex Post Facto Clause
because it retroactively criminalizes his lawful residency in
the Philippines; and (3) both Counts allege violations of a
statutory provision, 18 U.S.C. § 2423(c), that Congress
lacked constitutional authority to enact. See
Def.'s Mot. to Dismiss Indictment Due to Pre-Indictment
Delay, ECF No. 18 [hereinafter Def.'s Mot. to Dismiss,
ECF No. 18]; Def.'s Mot. to Dismiss Indictment, ECF No.
19 [hereinafter Def.'s Mot. to Dismiss, ECF No. 19]. With
respect to the last argument, Defendant challenges the
constitutionality of the statute both on its face and as
applied to the allegations against him. Hr'g Tr. (draft),
June 15, 2017, at 4. He asserts that Congress can rely upon
neither the Commerce Clause nor the Necessary and Proper
Clause to create the criminal offenses with which he is
charged. See Def.'s Mot. to Dismiss, ECF No. 19,
at 6-11; Def.'s Reply in Supp. of Mot. to Dismiss
Indictment & Def.'s Mot. to Dismiss Superseding
Indictment, ECF No. 29 [hereinafter Def.'s Reply, ECF No.
29], at 7-16. In the event the court finds both Counts rest
on constitutional applications of Section 2423(c), Defendant
moves to sever the charges and proceed in two separate
trials. See Def.'s Mot. to Sever, ECF No. 34.
Finally, Defendant urges the court to dismiss the Superseding
Indictment in its entirety because venue is not proper in the
District of Columbia.
court addresses each argument in turn.
first moves to dismiss Count One of the Superseding
Indictment on the ground that the United States violated his
due process rights by waiting until December 2015 to file
charges against him for conduct that allegedly occurred in
2007. See Def.'s Mot. to Dismiss, ECF No. 18.
statutory period of limitations and the Due Process Clause of
the Constitution guard against the imposition of stale
charges against a criminal defendant. United States v.
Lovasco, 431 U.S. 783, 789 (1977); United States v.
Marion, 404 U.S. 307, 322-23 (1971). While a
defendant's primary protection against a delayed
prosecution is the limitations period, a defendant can show
that a pre-indictment delay that does not violate the statute
of limitations nonetheless violates his rights under the Due
Process Clause by demonstrating that the delay (1)
substantially prejudiced his right to a fair trial and (2)
was used to gain tactical advantage over him.
Marion, 404 U.S. at 324; accord United States v.
Bridgeman, 523 F.2d 1099, 1111-12 (D.C. Cir. 1975);
see United States v. Kilroy, 769 F.Supp. 6, 7
(D.D.C. 1991) (explaining that the defendant bears the burden
of demonstrating both elements), aff'd on other
ground, 27 F.3d 679 (D.C. Cir. 1994). A prosecutor's
decision to delay indictment in order to investigate further
does not offend the Constitution. Lovasco, 431 U.S.
at 790, 796. Instead, the defendant must demonstrate that
delay was a “deliberate prosecution tactic.”
Bridgeman, 523 F.2d at 1112.
contends that the eight-year period between the conduct
alleged in Count One and the charges brought against him has
prejudiced his ability to defend himself in this case because
a substantial number of witnesses are now unavailable, and
those that are available have faded memories. Specifically,
Defendant notes that two restaurants in which he and Minor A
purportedly were seen together have now closed and, as a
result, their former employees and patrons are unavailable to
aid in his defense. Def.'s Mot. to Dismiss, ECF No. 18,
at 3. Similarly, in light of the substantial gap in time
between the alleged conduct and return of the original
Indictment, the employees and residents of the Castle Peak
Tower condominium complex are no longer available to be
interviewed. Id. Additionally, Defendant states that
discovery revealed that his driver has “first hand
knowledge of the alleged conduct, ” but Defendant
cannot locate the driver for an interview in light of the
passage of time. Id. at 3-4. Lastly, Defendant notes
that the few witnesses he has been able to locate and contact
can only provide diminished assistance because the lapse in
time since the alleged events has affected their memories.
Id. at 4. Collectively, Defendant concludes, the
pre-indictment delay fatally undermines his ability to put on
an effective defense.
has failed to establish both the substantial prejudice and
government misconduct necessary to prove that pre-indictment
delay violated his due process rights. Although Defendant
points to some prejudice resulting from the delay between the
events alleged and return of the original Indictment, that
prejudice falls short of constituting “substantial
prejudice.” See Marion, 404 U.S. at 324.
Defendant makes generalized statements about prejudice
stemming from witnesses' loss of memory over time and
only speculates that unavailable witnesses would be able to
contribute to his defense, rather than make a specific claim
that any one witness could offer exculpatory evidence.
See United States v. Brodie, 326 F.Supp.2d 83, 88
(D.D.C. 2004); Kilroy, 769 F.Supp. at 8.
Additionally, Defendant has made no effort to demonstrate
that the Government intentionally delayed seeking an
indictment in order to gain a tactical advantage in his
prosecution. On the record presented, the court sees no
evidence of strategic intent on the part of the Government.
The Government represents that it first learned of the
conduct giving rise to the charge in Count One a year after
it allegedly occurred and that there was insufficient or
incomplete evidence at that time to pursue criminal charges.
See Gov't's Opp'n, ECF No. 24, at 1-2
(explaining inability to locate Defendant). Although the
Government could have been more diligent in pursuing the case
despite changes in personnel, cf. Id. at 3, that
delay does not evidence bad faith. Indeed, the fact that the
Government did not believe it had enough evidence to indict
Defendant in 2008, or even 2014, and needed to investigate
further reflects appropriate prosecutorial restraint, not an
effort to take tactical advantage of Defendant.
the court concludes Defendant did not suffer a violation of
his rights under the Due Process Clause due to pre-indictment
Ex Post Facto Clause
next moves to dismiss Count Two of the Superseding Indictment
on the ground that Section 2423(c), as applied to the conduct
alleged in that Count, violates his constitutional right to
be free from retroactive legislation. Def.'s Reply, ECF
No. 29, at 18-19. Count Two alleges: “Between on or
about January 3, 2016, and on or about August 2, 2016,
[Defendant] . . . did reside, temporarily and permanently, in
the Philippines, a foreign country, and engage and attempt to
engage in illicit sexual conduct . . . with another person
under 18 years of age (MINOR B).” Superseding
Indictment, ECF No. 26, at 2. Defendant submits that he has
“resided” in the Philippines since long before
2013, when Congress amended Section 2423(c) to include, as an
alternative element to “travel in foreign commerce,
” the act of “resid[ing], either temporarily or
permanently, in a foreign country.” See
Def.'s Reply, ECF No. 29, at 19; see also
Violence Against Women Reauthorization Act of 2013, Pub. L.
No. 113-4, § 1211, 127 Stat. 54, 142 (2013) (codified as
amended at 18 U.S.C. § 2423); supra, at note 1.
Consequently, Defendant concludes, to file charges against
him in 2016 for a crime that depends on lawful conduct
occurring prior to 2013-his residency in the
Philippines-violates the Ex Post Facto Clause. See
Def.'s Reply, ECF No. 29, at 19.
Constitution prohibits Congress from passing any “ex
post facto Law, ” U.S. Const. art. I, § 9, cl. 3,
which means, in part, that Congress may not punish an
individual for committing an act that, at the time, was
lawful to commit, Calder v. Bull, 3 U.S. (3 Dall.)
386, 390 (1798); Al Bahlul v. United States, 767
F.3d 1, 17-18 (D.C. Cir. 2014) (en banc). The court assesses
whether a statute violates the Ex Post Facto Clause by
determining if the statute “attach[es] new legal
consequences to events completed before its enactment.”
Bartko v. SEC, 845 F.3d 1217, 1223 (D.C. Cir. 2017).
“New legal consequences” include (1)
“impair[ment] [of] rights a party possessed when he
acted”; (2) “increase [of] a party's
liability for past conduct”; (3) “impos[ition]
[of] new duties with respect to transactions already
completed”; or (4) “material adjustments to the
extent of a party's liability.” Id.
(internal quotation marks omitted). However, “[a]
statute is not made retroactive merely because it draws upon
antecedent facts for its operation.” Cox v.
Hart, 260 U.S. 427, 435 (1922); accord United States
v. Hemmings, 258 F.3d 587, 594 (7th Cir. 2001) (applying
Cox, 260 U.S. 427, to the Ex Post Facto Clause).
2423(c) does not qualify as an ex post facto law, as applied
in Count Two, because the crime alleged did not occur until
January 2016, after Congress amended the statute.
The charges in Count Two require the Government to prove two
elements: (1) residency in a foreign country; and (2)
engaging or attempting to engage in noncommercial sexual
conduct with a minor. 18 U.S.C. § 2423(c), (e), (f)(1).
Both elements occurred simultaneously in January 2016 when
Defendant (1) was residing in the Philippines and (2)
allegedly engaged or attempted to engage in a sexual act with
his minor daughter. It follows, then, that the law does not
criminalize Defendant's act of residing in the
Philippines prior to the alleged molestation in 2016. Rather,
it criminalizes the act of molesting a child while
residing in the Philippines. Defendant's residence in the
Philippines in 2013 is irrelevant to Count Two and, thus,
poses no ex post facto concern.
the court rejects Defendant's challenge to the
constitutionality of Count Two based on the Ex Post Facto
Constitutionality of Counts One and Two
heart of Defendant's Motion is that both Counts of the
Superseding Indictment are unconstitutional because Congress
did not have power to pass the statutory provision upon which
they rest: Section 2423(c). Under Rule 12 of the Federal
Rules of Criminal Procedure, the defendant in a criminal
matter may challenge his or her indictment as
unconstitutional at any point prior to trial. See
Fed. R. Crim. P. 12(b)(3). In making such a challenge, the
defendant may seek to invalidate the indictment as
unconstitutional on its face or as applied to the conduct
alleged. For the court to hold that a statute is facially
unconstitutional, the defendant bears the heavy burden of
demonstrating that “no set of circumstances exists
under which the [statute] would be valid.” United
States v. Salerno, 481 U.S. 739, 745 (1987). In
contrast, to succeed on an as-applied challenge, the
defendant need only show that the statute is “an
unconstitutional exercise of congressional power” as
applied to the conduct set forth in the indictment.
United States v. Sullivan, 451 F.3d 884, 887 (D.C.
Cir. 2006). Here, Defendant brings both facial and as-applied
challenges to each Count in the Superseding Indictment.
justify a piece of legislation, the Government must be able
to point to an enumerated power in the Constitution that
authorized Congress to enact it. It is beyond doubt that,
“lacking a police power, ‘Congress cannot punish
felonies generally.' A criminal act committed wholly
within a State ‘cannot be made an offence against the
United States, unless it [has] some relation to the execution
of a power of Congress, or to some matter within the
jurisdiction of the United States.'” United
States v. Bond, 572 U.S.__, __, 134 S.Ct. 2077, 2086
(2014) (quoting Cohens v. Virginia, 19 U.S. (6
Wheat.) 264, 428 (1821); United States v. Fox, 95
U.S. 670, 672 (1878)). Here, the question is not whether
Congress has the authority to criminalize conduct occurring
wholly within one of the United States, but, relatedly,
whether acts occurring wholly within a foreign country can be
made “an offence against the United States”
pursuant to one of Congress' enumerated powers.
Government asserts that Section 2423(c) is a constitutional
exercise of Congress' authority to regulate international
commercial activities under the Foreign Commerce Clause and
its power to enact legislation that implements a
non-self-executing treaty under the Necessary and Proper
Clause. First, the Government explains that Section 2423(c),
defined to reach either commercial or noncommercial sex acts
with children, is a constitutional exercise of Congress'
Foreign Commerce Clause power because it regulates conduct
linked to a broad, international market in child trafficking
and sex tourism. Gov't's Surreply, ECF No. 37, at
10-11. As a general matter, the Government submits that
Congress possesses broader authority to regulate its
citizens' conduct abroad than their activities at home.
See Gov't's Opp'n, ECF No. 25, at 10. To
the extent the Interstate Commerce Clause's familiar
framework provides a helpful analytical tool, the Government
contends that it represents a floor, rather than a ceiling,
on Congress' power under the Foreign Commerce Clause.
See Id. at 11. The Government believes Section
2423(c) to be a constitutional exercise of Congress'
power on the ground that Congress had a rational basis to
conclude having sex with minors, irrespective of whether
money is exchanged, is part of a class of activities that has
a substantial effect on the trafficking of children and sex
tourism-commercial markets in which Americans participate-and
failing to regulate that conduct would leave a large
“gap” in Congress' overarching regulatory
scheme. See Id. at 15-16; Gov't's Surreply,
ECF No. 37, at 10-11. Second, and separately, the Government
submits that the court may uphold Section 2423(c) as a proper
exercise of Congress' authority under the Necessary and
Proper Clause to pass legislation that implements a
non-self-executing treaty to which the United States is a
party: the Optional Protocol to the Convention on the Rights
of the Child on the Sale of Children, Child Prostitution and
Child Pornography (“the Optional Protocol”),
adopted May 25, 2000, T.I.A.S. No. 13, 095, 2171
U.N.T.S. 227 [hereinafter Optional Protocol]. See
Gov't's Opp'n, ECF No. 25, at 20; Gov't's
Surreply, ECF No. 37, at 12-13; see also S. Treaty
Doc. 106-37 (2000). Whether defined to reach commercial or
noncommercial sexual abuse of children, the Government
contends, Section 2423(c) is rationally related to the
Optional Protocol's broad interest in eliminating sexual
harm of children and, therefore, should be upheld as
constitutional implementing legislation. Gov't's
Surreply, ECF No. 37, at 12-13.
challenges Section 2423(c) as unsupported by either power of
Congress. First, Defendant submits that, to the extent
Congress possesses broader authority to regulate its
citizens' conduct under the Foreign Commerce Clause than
under the Interstate Commerce Clause, the Foreign Commerce
Clause is not an absolute, world-wide police power.
See Def.'s Mot. to Dismiss, ECF No. 19, at 4.
Consequently, Defendant views the Interstate Commerce
Clause's outer bounds as representative of the scope of
the Foreign Commerce Clause. Analyzing Section 2423(c) under
the Interstate Commerce Clause framework, Defendant asserts
that Section 2423(c)'s commercial application-at issue in
Count One-cannot survive because it touches neither a channel
nor instrumentality of commerce, and “local,
intra-national activity unconnected to travel in foreign
commerce” is beyond Congress' power to regulate.
Id. at 8, 10-11. Further, even if Congress can reach
local foreign activity that substantially affects foreign
commerce, Congress' authority cannot be construed so
broadly as to allow it to “create comprehensive global
regulatory schemes among the nations of the world.”
Id. With respect to Section 2423(c)'s
noncommercial application-at issue in Count Two-Defendant
asserts that Congress may not regulate noncommercial conduct
based on the effect it might, through a series of inferences,
have on foreign commerce. Def.'s Reply, ECF No. 29, at
8-9. And, Defendant claims, Section 2423(c)'s
noncommercial application does not fill a gap in a broader
regulatory scheme designed to stop child sex trafficking
because the only conduct that provision regulates is a local
crime that is inherently noneconomic in nature. See
Id. at 10-11. Second, as to the Necessary and Proper
Clause, Defendant pushes back against the Government's
theory that Section 2423(c) implements the Optional Protocol
on the grounds that the statute is not implementing
legislation, it proscribes conduct not mentioned in the
treaty, and it is unrelated to the treaty's objective of
preventing child trafficking and sex tourism. See
Id. at 12-16.
challenge to Section 2423(c) implicates complicated questions
of constitutional law. The court begins with his claim that
Congress lacks authority under the Foreign Commerce Clause to
pass Section 2423(c), as applied in Count One and Count Two.
That inquiry first requires the court to determine the
framework that governs such an analysis before it can assess
whether Section 2423(c)'s commercial and noncommercial
applications are constitutional, as applied to the conduct
alleged in each Count. For the reasons that follow, the court
concludes Congress can rely on the Foreign Commerce Clause to
enact Section 2423(c)'s commercial application, as
relevant to Count One, but not Section 2423(c)'s
noncommercial application, as relevant to Count Two.
Accordingly, the court then turns to whether Section
2423(c)'s noncommercial application may be considered a
constitutional exercise of Congress' authority under the
Necessary and Proper Clause to implement the Optional
Foreign Commerce Clause
I of the United States Constitution authorizes Congress
“[t]o regulate Commerce with foreign Nations, and among
the several States, and with the Indian Tribes.” U.S.
Const. art. I, § 8, cl. 3. The Supreme Court's
interpretation of Congress' Commerce Power has developed
through reference to the three sub-clauses within the
Clause-the Foreign Commerce Clause, the Interstate Commerce
Clause, and the Indian Commerce Clause-such that each
occupies a distinct jurisprudential space in case law.
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 18
(1831) (noting that “[t]he objects, to which the power
of regulating commerce might be directed, are divided into
three distinct classes . . . . [and] [w]hen forming this
article, the convention considered them as entirely
distinct”); accord Cotton Petroleum Corp. v. New
Mexico, 490 U.S. 163, 191-92 (1989) (explaining that the
Tribes and States cannot be treated interchangeably for
purposes of determining Congress' regulatory authority
under the Commerce Clause because each triggers different
structural considerations within our constitutional system);
United States v. Pendleton, 658 F.3d 299, 306-07 (3d
Cir. 2011) (surveying the evolution of the Commerce Power
over time); United States v. Clark, 435 F.3d 1100,
1110-13 (9th Cir. 2006) (same). The scope of Congress'
power under the Foreign Commerce Clause-“[t]o regulate
Commerce with foreign Nations”-is at issue here.