First Circuit Constitutionalizes International Law Limits
In United States v. Dávila-Reyes, the First Circuit recently determined that Congress’s constitutional power to “define and punish . . . felonies committed on the high seas” is internally limited by contemporary international law. Its deep historical analysis nuances the discussion of the founding-era conception of international law and is poised to create disagreement among the circuits over application of the Maritime Drug Law Enforcement Act (MDLEA), enacted pursuant to the Felonies Clause.
Dávila-Reyes and alleged co-conspirators on the high seas. Exhibit #4, United States v. Reyes-Valdivia et al., No. 3:15-cr-00721 (FAB), (D.P.R. Nov. 23, 2015), ECF No. 46-4
By: Michael Anfang
In 2015, the U.S. Coast Guard spotted a vessel moving at a high rate of speed off the coast of South America. Believing the ship was involved in distributing narcotics on the high seas, the officers approached the ship and sought confirmation of the vessel’s nationality. The ship’s master claimed his vessel was Costa Rican, but that nation’s government could not confirm the vessel’s registry. Those on the ship were charged with violating the Maritime Drug Law Enforcement Act .
The MDLEA prohibits, among other offenses, “possess[ion] with intent to . . . distribute . . . a controlled substance” “while on board” “a vessel subject to the jurisdiction of the United States.” Relevant here, it provides that a vessel is subject to the jurisdiction of the United States when it lacks nationality, a status that under the statute can be achieved when the vessel’s master “makes a claim of registry” and the “claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality.” Since Costa Rica did not confirm the ship’s registry, the vessel qualified as “subject to the jurisdiction of the United States,” and the defendants’ actions were cognizable under the MDLEA. Defendants pled guilty but retained their rights to challenge Congress’s constitutional authority to enact the MDLEA.
The First Circuit's Innovative Framework
On appeal, the defendants challenged Congress’s authority to enact the MDLEA, specifically the statute’s provisions for determining the vessel was stateless. As background, circuit (and Supreme Court) precedent propose that American criminalization of activities aboard stateless vessels complies with international law.
Here the defendants argued that the MDLEA’s provisions for determining statelessness were out of line with international law. International law recognizes a vessel as stateless in situations including: when a vessel refuses to identify a flag state; when a vessel flies multiple flags to avoid capture; when the claimed nation denies registry; or when there is significant contradicting evidence. It does not recognize claimed country silence as grounds for statelessness, the mechanism at play in this case. Thus, the MDLEA’s provision was in violation of international law.
Ordinarily, while courts attempt to interpret Congressional enactments in line with international law, they presume that Congress’s power is not constitutionally limited by international law. The First Circuit held instead that international law does limit the MDLEA’s constitutional application because the Felonies Clause incorporates contemporary international law standards.
Article I, Section 8, Clause 10 of the Constitution provides Congress with the power to “define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” The First Circuit explained that this language was drafted to remedy the United States’s inability to comply with international law obligations under the Articles of Confederation. For example, the Articles government could not punish pirates or those who violated the rights of ambassadors. Compliance with international law would foster respect for a new country among the community of nations, and was appealing to an eighteenth century legal philosophy which saw the law of nations as a type of natural law.
The court then analyzed how the Framers must have meant two separate concepts for “Piracies” and “Felonies” that Congress could “define and punish.” It found piracies well defined in international law; in fact, piracy was the quintessential “universal jurisdiction” crime, or one that any nation could criminalize without regard to any nexus. Since piracy could also be a felony, “Felonies” in the clause could not mean Congress could criminalize any common law felony on the high seas since “Piracies” would become redundant. Instead, “Felonies” granted Congress a narrower jurisdiction. It referred to the international law expectation for nations to regulate their own citizens and those on their own ships (which could also expand to activities on stateless vessels).
Thus, both “Piracies” and “Felonies” incorporated international law concepts into the reach of this clause. The Felonies Clause then contains two innovations from the Articles of Confederation: first, it grants Congress authority to comply with international maritime law; second, it limits Congress’s ability to regulate conduct on the high seas by incorporating international law standards. This view of the Felonies Clause as constrained by international law was well supported by early Supreme Court dicta, thoroughly discussed elsewhere. The First Circuit concluded that since the MDLEA’s provision for finding statelessness went beyond international law standards, it was beyond the scope of the Felonies Clause and unconstitutional.
The First Circuit's Analysis Creates Tensions with MDLEA and other Doctrines
The First Circuit’s holding creates a methodological tension both with other circuit treatment of international law defenses, and with the Supreme Court’s recent consideration of the original meaning of law of nations legislations.
International Law and the MDLEA
In § 70505 MDLEA provides that “a person charged with violating” the MDLEA “does not have standing to raise a claim of failure to comply with international law as a basis for a defense.” It also explains that “a failure to comply with international law does not divest a court of jurisdiction and is not a defense to a proceeding under this chapter.” Courts have in general used this section to deny claims that the MDLEA’s statelessness procedures did not comply with international law standards—precisely contrary to the Dávila-Reyes court’s holding.
For example, in United States v. Hernandez, the United States claimed jurisdiction pursuant to the same provision utilized in Dávila-Reyes. The Coast Guard accosted Hernandez’s ship on the high seas and the master claimed Guatemalan registry. The Coast Guard officials, so Hernandez claims, did not transmit Hernandez’s registration documents in their request for confirmation from the Guatemalan government, so Guatemala could neither confirm nor deny the ship’s nationality. Since Guatemala did not unequivocally confirm the ship’s registration, the ship was stateless under the MDLEA.
On appeal, Hernandez argued that the Coast Guard failed to live up to its treaty and international law duty to provide Guatemala “any other identifying information” when it did not include the registration paper in its communication with Guatemalan authorities. The Eleventh Circuit rejected this claim: “any battle over the United States' compliance with international law in obtaining MDLEA jurisdiction should be resolved nation-to-nation in the international arena, not between criminal defendants and the United States in the U.S. criminal justice system.” The court continued, Hernandez’s “international law argument does not touch the conclusion that the United States properly exercised statutory jurisdiction over this suit.”
The statute created a certain system of maritime jurisdiction, which did not necessarily comply with international law. It concluded that “if the United States hid information from Guatemala, then the Guatemalan government may complain in some form to the U.S. government; but Congress has instructed that these defendants may not litigate those complaints in an MDLEA prosecution.”
In this case, the Hernandez court read Congress as allocating international law complaints to the diplomatic sphere rather than allowing them to proceed in prosecutorial litigation. If it were the case that international law actually serves as a constitutional limit on the MDLEA, such a result would be impossible. Other circuit decisions have concurred with this treatment of international law defenses. For example, the Third Circuit held in United States v. Martinez-Hidalgo that, in § 70505’s predecessor, Congress expressed “intent to override international law to the extent that international law might require a nexus to the United States for the prosecution of the offenses defined in the” MDLEA. The Fifth Circuit held similarly in United States v. Bustos-Useche.
Supreme Court Discussion
In its seminal decision Sosa v. Alvarez-Machain, the Supreme Court analyzed the Alien Tort Statute, a 1789 act that provides “jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations.” The Court determined that the Act grants district courts jurisdiction but it does not in itself provide causes of action under which aliens could sue. Instead, litigants must plead an actionable offense against the law of nations (the same language used at the end of the Felonies Clause).
In 1790, the primary offenses commentators recognized were “violation of safe conducts, infringement of the rights of ambassadors, and piracy.” In Sosa, the Court found that the Alien Tort Statute was not limited to those three offenses, but required that “any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms.”
Last term, the Supreme Court revisited the Alien Tort Statute in Nestle USA, Inc. v. Doe. The Court held that a claim against Nestle for aiding and abetting forced child labor abroad could not be heard under the Alien Tort Statute because it exceeded the statute’s extraterritorial reach. Part III of Justice Thomas’s opinion for the Court, joined by Justices Gorsuch and Kavanaugh, explained that despite Sosa’s openness to creating new causes of action under the Alien Tort Statute, the Court’s precedents barred it from doing so in this case. He concluded that the Court’s succeeding deference to Congress on these issues suggested that “courts in some circumstances might still apply Sosa to recognize causes of action for the three historical torts likely on the mind of the First Congress. But as to other torts, our precedents already make clear that there always is a sound reason to defer to Congress, so courts may not create a cause of action for these torts.”
Justice Gorsuch penned a concurrence, in which Justice Kavanaugh joined in part, similarly questioning whether courts could create new causes of action under the Alien Tort Statute. Justice Alito dissented on procedural grounds, but finished his opinion “To be sure, Part III of Justice Thomas’s opinion and Part II of Justice Gorsuch’s opinion make strong arguments that federal courts should never recognize new claims under the [Alien Tort Statute].” On the other hand, Justice Sotomayor expressed support for the Sosa test and the permissibility of finding new causes of action in the statute in a concurrence joined by Justices Breyer and Kagan.
On this record, four Justices are in favor of the idea that an original understanding of a 1789 statute limiting “law of nations” to offenses contemporaneously applied, and a whole Court endorses a maximum for the Sosa test that limits the incorporation of new offenses to fairly narrow grounds relating to a 1789 framework. There is strong reason to think that a similar analysis could cover the “offenses” portion of the Felonies Clause and the Court could interpret the constitutional language with a stronger eye toward incorporating specific 18th century legal principles. This contrasts with the First Circuit’s holding that the Felonies Clause incorporates only contemporary international law, whatever it may be.
The First Circuit has concluded that the Felonies Clause incorporates contemporary international law as a limit to Congress’s power. This conclusion led it to strike down a section of the MDLEA, in contrast to other circuit holdings. Contemporary Supreme Court treatment of the Alien Tort Statute also suggests the Supreme Court would approach the question differently. Given these interpretational difficulties, the Supreme Court should take up Dávila-Reyes or a similar case to interpret the Felonies Clause and how it interacts with the MDLEA.
Michael Anfang is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. He graduated from Johns Hopkins University in 2019.