Jurisdiction of United States in Exclusive Economic Zones
The United States’ assertion of jurisdiction in Exclusive Economic Zones (EEZs) raises profound legal and constitutional questions. The U.S. has sought to extend its criminal enforcement, particularly in drug interdiction, under the Maritime Drug Law Enforcement Act (MDLEA), beyond its territorial boundaries. However, this expansion of authority confronts substantial challenges under both the U.S. Constitution and international law. The core issue is whether Congress has the power to regulate conduct in EEZs under the Felonies Clause of Article I, Section 8, which permits Congress to “define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” EEZs, established by the United Nations Convention on the Law of the Sea (UNCLOS), extend 200 nautical miles from a coastal state’s baseline, giving states sovereign rights over natural resources but leaving navigation rights to other states. The United States, despite not ratifying UNCLOS, has adopted its provisions as customary international law, yet this raises an inherent contradiction: EEZs are not the “high seas” under international law, and thus, the constitutional basis for U.S. jurisdiction in these waters becomes dubious. Opponents of the MDLEA’s extraterritorial application argue that EEZs, by definition, fall outside the scope of the high seas, meaning Congress cannot claim the authority to regulate criminal conduct there under the Felonies Clause. They invoke the historical intent of the Constitution, which presumably did not anticipate the creation of EEZs or the broader interpretations of sovereignty and jurisdiction that have emerged in modern international law. Critics also highlight the MDLEA’s overreach, pointing to the prosecution of foreign nationals whose conduct bears no significant connection to the United States. This extraterritoriality challenges basic principles of due process, international comity, and jurisdictional limits. The statute’s reliance on ambiguous definitions, such as “stateless vessels,” further expands U.S. authority without firm grounding in either constitutional or international norms. The government, however, contends that “high seas” should be interpreted as it was understood at the time of the Constitution’s framing—encompassing all waters beyond the immediate territorial sea. Furthermore, courts have supported the U.S. government’s position by invoking the protective principle of international law, which allows states to exercise jurisdiction over conduct threatening their security, even when such conduct occurs beyond their borders. Yet the growing dissent among circuits, such as in United States v. Davila-Reyes, underscores that the constitutional grounding for such extraterritorial prosecutions is not secure. The First Circuit, in an exhaustive historical analysis, questioned whether the Felonies Clause could be stretched to cover modern EEZ prosecutions, suggesting that Congress’s power may indeed be limited by evolving international law definitions. The legal complexities of this issue are not merely academic. They directly impact the fairness and reach of U.S. criminal law, as well as its adherence to international legal norms. Defendants prosecuted under the MDLEA face lengthy sentences for conduct that may have no clear nexus to the United States, raising profound questions about the limits of U.S. power in a globalized world. Ultimately, resolution may come from the Supreme Court, but Congress could also intervene by revisiting the MDLEA’s scope, tethering U.S. jurisdiction more closely to conduct with a demonstrable U.S. interest. Alternatively, diplomatic engagement, including possible ratification of UNCLOS, could resolve these tensions and clarify the U.S.’s obligations under international law. In short, the question of jurisdiction in EEZs encapsulates broader constitutional dilemmas about the reach of U.S. law in an interconnected world, where national borders and traditional notions of sovereignty increasingly intersect with global crime and enforcement efforts. This unresolved tension between domestic constitutional constraints and international legal principles promises to fuel litigation and debate for years to come.
Classical legal traditional separation of powers
The classical legal tradition offers a rich, nuanced understanding of governance, particularly in its treatment of the separation of powers, which modern legal thought tends to oversimplify. While liberal constitutionalism insists that the rule of law demands strict separation between those who make, enforce, and adjudicate the law, the classical approach reveals a more flexible, historically grounded view of legality. It contends that the fusion of powers does not necessarily result in arbitrary governance, nor does it violate the rule of law. Rather, the combination of roles within a single office can promote a more effective and just application of the law. The classical view, as seen in the legal systems of ancient Rome and medieval Europe, often placed lawmaking and adjudication in the same hands. This was not seen as a departure from the rule of law, but rather as a way to ensure that laws were enforced effectively and that justice was served. Emperors, kings, and other rulers, while wielding substantial authority, were often bound by legal norms that emphasized their duty to administer justice impartially. This tradition, exemplified by figures like Emperor Hadrian, who famously reversed his course to hear a commoner’s petition, shows that even centralized power could operate within a framework of legality. Liberal theorists argue that without the separation of powers, law becomes a mere tool for tyranny. But this view ignores the deep, historical cultures of legality that existed long before modern constitutionalism. In the Roman and medieval worlds, law was not simply imposed from above; it was a living system of norms shaped by jurists, scholars, and courts. Even though the powers of lawmaking and adjudication were often fused, the rule of law persisted through a shared commitment to justice. Indeed, modern liberalism’s fixation on separating powers obscures the fact that the rule of law requires more than just institutional arrangements. The classical legal tradition emphasized that justice and legality arise from the responsible use of power, not its mere division. Frederick II’s Liber Augustalis, for instance, proclaimed that justice and enforcement must be united to ensure the proper application of the law. Combining powers was seen as a way to make governance more effective and grounded in the realities of law enforcement and adjudication. The classical tradition also teaches that the combination of powers can foster a deeper integration of law and justice. In modern administrative states, such as the United States, the combination of rulemaking, enforcement, and adjudication within agencies is not a violation of the rule of law, but a practical response to the complexity of governance. Agencies must adapt laws to the intricate realities of the cases before them. Judicial review, while important, cannot replace the nuanced understanding that comes from exercising multiple powers within a single body. The obsession with separating powers also risks diminishing the role of internal norms. In systems where powers are combined, the officials involved often switch roles, moving from lawmaking to adjudication. These shifts, governed by a commitment to the proper administration of justice, do not inherently lead to bias. Indeed, the classical tradition understood that those holding power could act impartially even when performing different functions. Modern courts, such as the U.S. Supreme Court, have similarly upheld the legitimacy of combined powers, recognizing that the mere combination of functions does not necessarily result in unfairness or partiality. The classical approach to the rule of law reflects a broader conception of constitutional governance, one that seeks not only to protect individual rights but also to promote the common good. This view, articulated by scholars like Adrian Vermeule, recognizes that the rule of law is not simply about limiting state power but about ensuring that law serves the general welfare. The separation of powers, while useful in certain contexts, is not an end in itself. The ultimate goal of any constitutional system is to secure justice and peace for the polity, a goal that may sometimes require a combination of powers. The classical legal tradition provides a valuable counterpoint to the modern liberal emphasis on the separation of powers. It reminds us that the rule of law is not a one-size-fits-all concept but a flexible, historically contingent ideal that can take different forms depending on the needs and circumstances of the polity. By focusing too narrowly on institutional design, modern legal theory risks losing sight of the deeper purposes of law: the promotion of justice, the protection of rights, and the advancement of the common good. The classical tradition offers a richer, more adaptable understanding of how law can achieve these ends, even when the powers of governance are not strictly separated.