Corrigan Clay v. United States

18 U.S.C. § 2423(c) criminalizes “illicit sexual conduct” committed abroad by any U.S. citizen or permanent resident who “travel[ed] in foreign commerce or reside[d], either temporarily or permanently, in a foreign country.” The government used this law to prosecute Petitioner Corrigan Clay, a U.S. citizen and long-term Haitian resident, for noncommercial sexual abuse that took place in his private home in Haiti. A fractured Third Circuit panel upheld the conviction, reasoning that (i) the Foreign Commerce Clause supports § 2423(c) as applied here and (ii) this statute validly implements the Optional Protocol to the United Nations Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography. As the two concurring judges explained in “urg[ing] the Supreme Court to clarify” the underlying doctrine, Pet. App. 63a, 65a, this decision deepens disagreements on two important constitutional issues. The questions presented are:

1. Whether the Foreign Commerce Clause empowers Congress to criminalize private, non-commercial conduct that occurs entirely abroad.

2. Whether Missouri v. Holland, 252 U.S. 416 (1920), allows Congress to criminalize private, noncommercial conduct that occurs entirely abroad under the guise of implementing the Optional Protocol.