Thomas Bemoans Lost Opportunity to Define Foreign Commerce Powers

(CN) – A violent Jamaican pimp who ran an international prostitution ring before being arrested and convicted in the U.S. won’t have his appeal heard by the Supreme Court, much to the chagrin of Justice Clarence Thomas, who on Monday described the case as a golden opportunity to define the reach of the Foreign Commerce Clause.

Damon St. Patrick Baston was convicted in July 2014 of 21 charges stemming from the prosecution he ran from Australia to Florida to the United Arab Emirates.

The charges included sex trafficking by force, fraud and coercion, importation of an alien for prostitution, transportation for prostitution, aggravated identity theft, and money laundering.

U.S. District Judge Cecilia Altonaga  later  him to 27 years in a federal prison, followed by a lifetime of supervised release, and ordered him to pay $78,000 in restitution to one of his victims, identified as K.L., $11,200 to one identified as T.M., and $10,070 to a third, identified as J.R.

Baston appealed his case to the 11th Circuit challenging the sufficiency of the government’s evidence, a supplemental jury instruction and the restitution award.

The three-judge appeals panel rejected Baston’s claims, but held that a cross-appeal filed by the government, seeking an increase in the restitution award, had merit.

It then awarded K.L. an additional $400,000 in restitution reflecting money she earned while prostituting in Australia

In doing so, the 11th Circuit said “the district court erred when it refused to award restitution to a victim of Baston’s sex trafficking in Australia.”

A majority of justices rejected Baston’s petition for a writ of certiorari on Monday, but Justice Thomas dissented, explaining that he is “concerned that language in some of this Court’s

precedents has led the courts of appeals into error.”

“At the very least, the time has come for us to clarify the scope of Congress’ power under the Foreign Commerce Clause to

regulate extraterritorially.”

Thomas acknowledged the Constitution grants Congress authority to regulate commerce with foreign nations, an absence of guidance from the Supreme Court on the scope of that authority, has inspired courts of appeal to construe it expansively, permitting Congress to regulate economic

activity abroad if it has a substantial effect on the United States’ foreign commerce.

“In this case, the court of appeals declared constitutional a restitution award against a non-U.S. citizen based upon conduct that occurred in Australia,” Thomas wrote. “The facts are not sympathetic, but the principle involved is fundamental. We should grant certiorari and reaffirm that our Federal Government is one of limited and enumerated powers, not the world’s lawgiver.”

Thomas said the high court’s past statements about the breadth of the Foreign Commerce Clause have relied

on “some ‘evidence that the Founders intended the scope of

the foreign commerce power to be greater’ than Congress’

power to regulate commerce among the States.”

“Whatever the Founders’ intentions might have been in this respect, they were grounded in the original understanding of the Interstate Commerce Clause. But this Court’s modern doctrine has ‘drifted far from the original understanding,’” Thomas wrote.

Rather than interpreting the Foreign Commerce Clause as it was originally understood, “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,” the justice continued.

He said taken to the limits of its logic, the 11th Circuit’s reasoning would “permit Congress to regulate any economic activity anywhere in the world, so long as Congress had a rational basis to conclude that the activity has a substantial effect on commerce between this Nation and any other.

“Congress would be able not only to criminalize prostitution in Australia, but also to regulate working conditions in factories in China, pollution from powerplants in India, or agricultural methods on farms in France,” Thomas continued, adding, “I am confident that whatever the correct interpretation of the foreign commerce power may be, it does not confer upon Congress a virtually plenary power over global economic activity.”

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