Whether Congress's power under the Foreign Commerce Clause and the Treaty Power permits federal criminal prosecution for extraterritorial conduct not directly tied to a core commercial transaction

but ultimately concluded that circuit precedent—namely, United States v. Pendleton, 658 F.3d 299 (8d Cir. 2011)—required upholding § 2423(c). See Ex. 1 at 20-22. Pendleton held that “because the jurisdictional element in § 2423(c) has an express connection to the channels of foreign commerce,” the statute is valid. Jd. at 22 (citation omitted). The lead opinion acknowledged that “some colleagues on our sister courts disagree,” noting concerns that the Third Circuit’s view “would ‘permit Congress to subject an American to federal prosecution for any offense committed abroad.” Id. at 23 (quoting United States v. Durham, 902 F.3d 1180, 1194 (10th Cir. 2018) (Hartz, J., dissenting)). In Judge Hardiman’s view, however, Mr. Clay’s “movement abroad maintain[ed] some nexus with the United States,” so those concerns were misplaced. Id. at 23-24. The lead opinion also concluded that “§ 2423(c) regulates activities that, taken in the aggregate, substantially affect foreign commerce.” Id. at 24 (cleaned up). And it held that, under Missouri v. Holland, 252 U.S. 416 (1920), this statute is a valid exercise the treaty power, via the Necessary and Proper Clause, because it implements a U.N. optional protocol addressing the sale of children, child prostitution, and child pornography. Jd. at 33. Judge Porter concurred. He explained that, while Mr. Clay’s conviction is valid under Pendleton and Holland, “those precedents are flawed.” Id. at 39. “Pendleton wrongly adopted the Supreme Court’s framework for the Interstate Commerce Clause ... as a floor to Congress’s power under the Foreign Commerce Clause,” and then “misapplied” that framework. Id. Absent this circuit precedent, Judge Porter “would join the Sixth Circuit and several other judges in holding that § 2423(c) exceeds Congress’s power under the Foreign Commerce Clause.” Id. (collecting cases). And “Holland undermined the Constitution’s structure of enumerated and limited legislative powers, requiring us to enforce laws like § 2423(c) that are not valid under any enumerated power.” Id. at 39-40. Judge Porter thus joined with “other judges who have urged the Supreme Court to clarify the scope of that case.” Id. at 40 (citing cases). Judge Ambro also concurred because “Pendleton and Holland bind us.” Id. at 65. But he, too, expressed strong “reservations” about those precedents. “Under Pendleton’s logic,” he warned, “Congress’s authority to regulate the conduct of American residents abroad is seemingly boundless.” Jd. And he, too, “urge[d] the Supreme Court to clarify the scope of Holland and its place in our constitutional design.” Id. As Judges Porter and Ambro explained in detail, the decision below conflicts with opinions from other courts of appeals; misconstrues the scope of Congress’s foreign-commerce power, with potentially sweeping implications; and rests on precedent that itself stands in “deep tension” with the Constitution. Jd. at 61 (quoting Nicholas Quinn Rosenkranz, Executing the Treaty Power, 118 Harv. L. Rev. 1867, 1868 (2005)). Mr. Clay’s petition will thus raise substantial issues, which warrant added time to ensure the most helpful presentation.