Cite as: 580 U. S. ____ (2017)            1

                     THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES
 DAMION ST. PATRICK BASTON v. UNITED STATES
   ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

  STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

              No. 16–5454. Decided March 6, 2017


   The petition for a writ of certiorari is denied.
   JUSTICE THOMAS, dissenting from the denial of certiorari.
   The Constitution, through the Foreign Commerce
Clause, grants Congress authority to “regulate Commerce
with foreign Nations.” Art. I, §8, cl. 3. Without guidance
from this Court as to the proper scope of Congress’ power
under this Clause, the courts of appeals have construed it
expansively, to permit Congress to regulate economic
activity abroad if it has a substantial effect on this Na-
tion’s 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 Austra-
lia. The facts are not sympathetic, but the principle in-
volved is fundamental. We should grant certiorari and
reaffirm that our Federal Government is one of limited
and enumerated powers, not the world’s lawgiver.
                              I
   Petitioner Damion St. Patrick Baston is a citizen of
Jamaica. He forced numerous women to prostitute for
him through violence, threats, and humiliation. One of his
victims, K. L., was a citizen of Australia. She prostituted
for petitioner in Australia, the United States, and the
United Arab Emirates before escaping from his control.
While in the United States, petitioner was arrested and
charged with the sex trafficking of K. L. by force, fraud, or
coercion, 

. §1591(a), “ ‘in the Southern District of
Florida, Australia, the United Arab Emirates, and else-
where.’ ” 

, 658 (CA11 2016). As relevant
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                    THOMAS, J., dissenting

here, §1591(a)(1) states that the sex trafficking must
“affec[t] interstate or foreign commerce.” Congress has
granted federal courts “extra-territorial jurisdiction” over
sex trafficking if the “alleged offender is present in the
United States, irrespective of the nationality of the alleged
offender.” §1596(a)(2).
  After a jury convicted petitioner, the District Court
ordered him to pay K. L. $78,000 in restitution, which
included the money she earned while prostituting for
petitioner in the United States. See §1593 (requiring
sentencing courts to order restitution in “the full amount
of the victim’s losses” for offenses under §1591). But the
court refused to include in the restitution award the
$400,000 that K. L. earned while prostituting in Australia.
In the court’s view, the Foreign Commerce Clause did not
permit an award of restitution based on petitioner’s extra-
territorial 

, 660.
  The Court of Appeals vacated the order of restitution
and remanded with instructions to increase the award by
$400,000 to account for K. L.’s prostitution in Australia.
The court reasoned that whatever the outer bounds of the
Foreign Commerce Clause might be, this Court has sug-
gested that it has at least the same scope as the Interstate
Commerce Clause. Relying on our Interstate Commerce
Clause precedents, the Court of Appeals concluded that
the Foreign Commerce Clause grants Congress power to
regulate “activities that have a ‘substantial effect’ on
commerce between the United States and other countries,”
including sex trafficking overseas. 

(citing
Gonzales v. Raich, 

, 16–17 (2005)).
                           II
  The Court of Appeals correctly noted that this Court has
never “thoroughly explored the scope of the Foreign Com-
merce 

; accord, e.g., Goodno,
When the Commerce Clause Goes International: A Pro-
                  Cite as: 580 U. S. ____ (2017)             3

                     THOMAS, J., dissenting

posed Legal Framework for the Foreign Commerce Clause,

. Rev. 1139, 1148–1149 (2013) (“The U. S. Su-
preme Court has not yet articulated the extent of Con-
gress’s power under the Foreign Commerce Clause to
enact laws with extraterritorial reach. Because of this
lack of guidance . . . lower courts are at a loss for how
to analyze Foreign Commerce Clause issues”). The few
decisions from this Court addressing the scope of the
Clause have generally been confined to laws regulating
conduct with a significant connection to the United States.
See, e.g., Board of Trustees of Univ. of Ill. v. United States,

, 57 (1933) (“The Congress may determine
what articles may be imported into this country and the
terms upon which importation is permitted”); United
States ex rel. Turner v. Williams, 

, 290 (1904)
(“[T]he power to regulate commerce with foreign nations
. . . includes the entrance of ships, the importation of
goods, and the bringing of persons into the ports of the
United States”). This Court has also articulated limits on
the power of the States to regulate commerce with foreign
nations under the so-called dormant Foreign Commerce
Clause. See, e.g., Japan Line, Ltd. v. County of Los Ange-
les, 

, 449–454 (1979). We have not, however,
considered the limits of Congress’ power under the Clause
to regulate conduct occurring entirely within the jurisdic-
tion of a foreign sovereign.
    In the absence of specific guidance, the courts of ap-
peals—including the court below—have understandably
extended this Court’s Interstate Commerce Clause prece-
dents abroad. In United States v. Lopez, 

,
558–559 (1995), we held that Congress is limited to regu-
lating three categories of interstate activity: “the use of
the channels of interstate commerce,” “the instrumentali-
ties of interstate commerce,” and “activities that substan-
tially affect interstate commerce.” Some courts of appeals
“have imported the Lopez categories directly into the
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                    THOMAS, J., dissenting

foreign context,” some “have applied Lopez generally but
recognized that Congress has greater power to regulate
foreign commerce,” and others have gone further still,
“holding that Congress has authority to legislate under
the Foreign Commerce Clause when the text of a statute
has a constitutionally tenable nexus with foreign com-
merce.” United States v. Bollinger, 

, 215
(CA4 2015) (internal quotation marks omitted); see also

(“Instead of requiring that an activity have
a substantial effect on foreign commerce, we hold that the
Foreign Commerce Clause allows Congress to regulate
activities that demonstrably affect such commerce”).
                             III
  I am 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.
                              A
   The courts of appeals have relied upon statements by
this Court comparing the foreign commerce power to the
interstate commerce power, but have removed those
statements from their context. In certain contexts, this
Court has described the foreign commerce power as “ex-
clusive and plenary,” Board of 

–57
(citing Gibbons v. Ogden, 

, 196–200 (1824)),
explaining that Congress’ commerce power “when exer-
cised in respect of foreign commerce may be broader than
when exercised as to interstate commerce,” Atlantic
Cleaners & Dyers, Inc. v. United States, 

, 434
(1932); see also Brolan v. United States, 

,
218–220 (1915). None of these opinions, however, “in-
volve[d] legislation of extraterritorial operation which
purports to regulate conduct inside foreign nations.”
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                     THOMAS, J., dissenting

Colangelo, The Foreign Commerce Clause, 

. Rev.
949, 1001 (2010). This Court’s statements about the com-
parative breadth of the Foreign Commerce Clause are of
questionable relevance where the issue is Congress’ power
to regulate, or even criminalize, conduct within another
nation’s sovereign territory.
  Moreover, this Court’s comparative 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. Japan

. 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, J., concurring). For one thing, the “Clause’s
text, structure, and history all indicate that, at the time of
the founding, the term ‘ “commerce” consisted of selling,
buying, and bartering, as well as transporting for these
purposes.’ ” 

(THOMAS, J., dissent-
ing) (quoting 

(opinion of THOMAS, J.)).
For another, “the very notion of a ‘substantial effects’ test
under the Commerce Clause is inconsistent with the origi-
nal understanding of Congress’ powers and with this
Court’s early Commerce Clause cases.” United States
v. Morrison, 

, 627 (2000) (THOMAS, J.,
concurring).
  Thus, even if the foreign commerce power were broader
than the interstate commerce power as understood at the
founding, it would not follow that the foreign commerce
power is broader than the interstate commerce power as
this Court now construes it. But rather than interpreting
the Foreign Commerce Clause as it was originally under-
stood, the courts of appeals have taken this Court’s mod-
ern interstate commerce doctrine and assumed that the
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                    THOMAS, J., dissenting

foreign commerce power is at least as broad. The result is
a doctrine justified neither by our precedents nor by the
original understanding.
                             B
  Taken to the limits of its logic, the consequences of the
Court of Appeals’ reasoning are startling. The Foreign
Commerce Clause would permit Congress to regulate any
economic activity anywhere in the world, so long as Con-
gress 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 power-
plants in India, or agricultural methods on farms in
France. I am confident that whatever the correct interpre-
tation of the foreign commerce power may be, it does not
confer upon Congress a virtually plenary power over
global economic activity.
                         *   *     *
  We should grant certiorari in this case to consider the
proper scope of Congress’ Foreign Commerce Clause power.
  I respectfully dissent.