U.S. v. Bredimus (here) is a two-year-old decision I noticed cited in this Mann Act case. Because this opinion is so embarassingly reasoned, and because it was cited authoritatively, it deserves newfound attention.
At issue in Bredimus was this: Can Congress make it a federal crime, as it did with 18 U.S.C. 2423, to travel overseas to have sex? Section 2423 prevents not just dirty old men from taking sex trips, but also punishes college fornicators: it's an international version of the Mann Act. In Bredimus, a dirty old man was convicted after taking a Thai sex trip. He challenged his conviction, arguing that Section 2423 unconstitutionally restricted his ability to travel to other countries.
This was a strong argument. The right to travel, in con-law lingo, is a fundamental right. Because the right to travel is a fundamental right, the government can restrict it only if it has a compelling government interest, and only if the law is the least restrictive way for the government to achieve this interest. If other countries have a lower age-of-consent than American, what compelling government interest does the United States have in punishing international sex? That is, if it's legal over there, what business do we have criminalizing it here? That's a tough argument. How did the Fifth Circuit address it?
They didn't! Instead, here is the panel's entire analysis:
Because this statute, as relevant here, only criminalizes foreign travel when the travel is done with an illicit intent, we find that Section 2423(b) does not impermissibly burden the fundamental right to travel.
You don't need a law degree to recognize the problem with this argument: it's circular. The law does not burden to the right to travel because it only burdens the right to travel for illicit purposes. What's that? You mean that defining what is illicit itself imposes a burden on travel? That is, by defining all travel with the intent to have sex with someone under 18-years-old, Congress has imposed a burden on the right to travel.
Let's apply the Fifth Circuit's reasoning to other contexts to see how wrong it is:
- Congress enacts a law making it illegal to travel across state lines for an abortion.
- Congress enacts law making it illegal to move to another state in order to obtain better welfare benefits.
- Congress enacts a law making it illegal to travel across state lines to buy magazines and newspapers.
Under the Fifth Circuit's reasoning, all of these laws would be constitutional because they "only criminalizes foreign travel when the travel is done with an illicit intent," where Congress defines illicit in any way it sees fit.
In the Fifth Circuit's defense, the Supreme Court used a similar "analysis" in Regan v. Wald, a poorly-reasoning opinion that upheld travel restrictions to Cuba. There is, of course, a major difference between upholding a travel restriction to one of the United States' enemies and upholding a restriction that prevents a college student from "visiting" his 17-year-old German girlfriend.