Jurisdiction from Coast to Coast: Justifying Land-Based Conspiratorial Liability Under the Felonies Clause

Michael Anfang*

The Maritime Drug Law Enforcement Act (MDLEA) has served as an effective tool for stemming the tide of the international drug trade but has garnered criticism from the academy and a handful of circuit court opinions for its broad reach beyond American shores.  The judges are skeptical of how far Congress’s constitutional authority to “define and punish . . . felonies committed on the high seas” extends toward foreign territories.  On the other hand, courts in the past decade have been willing to uphold the statute’s application to members of narcotics conspiracies who remain in foreign countries.  This is in tension with normal principles of conspiracy law, under which the substantive offense has no bearing on conspiratorial liability.

This Note explains the interaction between jurisdiction, Article I of the Constitution, and conspiracy law, ultimately arguing for the MDLEA’s application to land-based conspirators.  It sets the stage by analyzing the circuit split in understanding Congress’s attempt to allocate determination of jurisdiction to the court rather than the trier of fact.  Then, it suggests that jurisdictional circuit split influences the three ways the circuits conceptualize conspiratorial liability under the MDLEA.  Finally, it argues that each understanding is consistent with early understandings of Article I power generally, and the Felonies Clause specifically, as applied to conspiratorial liability.  This conclusion creates a workaround for some limiting constructions in the literature and the circuit decisions.

* Notes Editor, Columbia Journal of Transnational Law; J.D., Columbia Law School, 2023.  I wish to thank Professor George Bermann, whose insightful comments and teaching made my argument stronger and clearer, and my diligent Notes Editors, Managing Editor, and editorial staff who sharpened my writing and thinking.