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The power granted to Congress in the offences clause is limited by customary international law for two reasons. First, the related U.S. Supreme Court precedent and the text, history, and structure of the U.S. Constitution confirm that the power to "define" is limited by the law of nations. Second, the phrase "Offences against the Law of Nations" is understood today to mean violations of customary international law.
During a routine patrol of Panamanian waters in 2010, the United States Coast Guard observed a wooden fishing vessel operating without lights and without a flag. The Panamanian Navy pursued the vessel until its occupants abandoned the vessel and fled into a jungle. When members of the Panamanian Navy searched the vessel the next morning, they discovered approximately 760 kilograms of cocaine. The Panamanian National Frontier Service searched on land for the occupants of the abandoned vessel and arrested Bellaizac-Hurtado, Angulo-Rodallega, Gonzalez-Valois, and Riascos-Hurtado in various locations on the beach and in the jungle. After an exchange of diplomatic notes, the Foreign Ministry of the Republic of Panama consented to the prosecution of the four suspects in the United States. A federal grand jury indicted Bellaizac-Hurtado, Angulo-Rodallega, Gonzalez-Valois, and Riascos-Hurtado for conspiracy to possess with intent to distribute cocaine, and for actual possession with intent to distribute five kilograms or more of cocaine, on board a vessel subject to the jurisdiction of the United States. The defendants moved to dismiss the indictment based upon the lack of jurisdiction and the unconstitutionality of the Maritime Drug Law Enforcement Act as applied to conduct. A magistrate judge recommended that the motion be denied, reasoning that the district court had jurisdiction because the defendants were operating a stateless vessel and that the Act was constitutional as applied because Congress and several courts had determined that drug trafficking was "universally condemned" by various nations with "reasonably developed" legal systems. The district court adopted the magistrate judge's report. The defendants appealed their convictions on the ground that the Act, as applied, exceeded the power of Congress under Article I, Section 8, Clause 10.
Was the Maritime Drug Law Enforcement Act unconstitutional, as applied to defendants?
The court vacated the defendants’ convictions, holding that the power of Congress to define and punish conduct under the offences clause was limited by customary international law. The related U.S. Supreme Court precedent and the text, history, and structure of the U.S. Constitution confirmed that the power to "define" was limited by the law of nations, and the phrase "offences against the law of nations" was understood today to mean violations of customary international law. Also, the Court determined that drug trafficking was not a violation of customary international law at the time of the founding, and drug trafficking was not a violation of customary international law today. Because drug trafficking was not a violation of customary international law, the Court held that Congress exceeded its power, under the offences clause, when it proscribed defendants' conduct in the territorial waters of Panama. According to the Court, the United States had not offered any alternative ground upon which the Maritime Drug Law Enforcement Act could be sustained as constitutional. As applied to defendants, the Maritime Drug Law Enforcement Act was unconstitutional.