All Petroleum-Product Cargo Onboard the M/T Arina with International Maritime Organization Number 9189952, et al. v. United States

In his dissent from the denial of certiorari in Baston v. United States, 580 U.S. 1182, 1186 (2017) (Thomas, J. dissenting from the denial of certiorari), Justice Thomas observed that “the courts of appeals have taken this Court’s modern interstate commerce doctrine and assumed that the foreign commerce power is at least as broad. The result is a doctrine justified neither by our precedents nor by the original understanding.” This language aptly describes the D.C. Circuit’s decision here, in which the lower court essentially adopted this Court’s “affects test” from United States v. Lopez, 514 U.S. 549, 559 (1995) as the governing standard under the Foreign Commerce Clause. The question presented is precisely the one for which Justice Thomas urged a grant of certiorari in Baston, and one that has divided the courts of appeals: namely, whether the Foreign Commerce Clause—and, by extension, the jurisdictional provision in the criminal material-support statute (18 U.S.C. § 2339B(d)(1)(E)) on which it relies—requires a “nexus to the United States” in the form of foreign commercial act “with” the United States rather than simply an act occurring entirely abroad among foreign actors, if that commerce “affects” the United States.