US v. Clark, No. 04-30249 (1-26-06). In a case of first impression, the 9th makes sure that Congress's constitutional reach is the same as its regulatory grasp of foreign commercial sex crimes under the Constitution's "Foreign Commerce Clause." The defendant here was a 71 year old veteran who traveled to Cambodia and caught having sex for money with two minor boys.

The 9th (McKeown and Hug) held in an issue of first impressionunder the PROTECT ACT that the statute's requirements of (1) travel in foreign commerce; and (2) participation in a commercial transaction while abroad satisfies the Constitution's foreign commerce to a "constitutionally adequate degree." The 9th focused on his explicit foreign travel and then the commercial illicit sex act two months after. In dissent, Ferguson cautions that "The Constitution cannot be interpreted according to the principle that the ends justifies the means. The sexual abuse of children abroad is despicable, but we should not, and need not, refashion our Constitution to address it." Indeed, Ferguson is alarmed at the expansiveness of the opinion's test, and the abandonment of the channels of commerce analysis that is sued for domestic cases.

Although this case is limited to commercial sex crimes, the PROTECT ACT also involves noncommercial sex crimes. Are these acts sex acts constitutionally unprotected? One can also envision other acts (abortion in a post-Roe world?) that may be involved.The 9th commended AFPD Michael Filipovic of W.D. Wa. (Seattle) for his "excellent and comprehensive briefing of this matter."