In United States v. Durham, No. 16-6075, 2018 WL 4103167 (10th Cir. Aug. 29, 2018), the Tenth Circuit considered whether a statute criminalizing illicit sexual activities occuring overseas was within Congress’s power. Defendant Matthew Durham appealed his conviction for illicit sex with minors in Kenya on eight different grounds, including a Commerce Clause challenge. Given that the conduct at issue occurred overseas, the court considered Congress’s authority in the foreign commerce context. Writing for the majority, Judge Matheson noted that congressional authority is broader in the foreign commerce context than the interstate context, given that federalism concerns do not arise in the foreign context. Ultimately, the court held that the statute of conviction was within Congress’s authority under the Foreign Commerce Clause and affirmed Durham’s conviction.

The court cited Richard Primus’s Article, The Limits of Enumeration, 124 Yale L.J. 576, 578 (2014) to support the assertion that “[a]n enumerated power both confers and constrains legislative authority.” Durham, 2018 WL 4103167, at *15. The opinion extensively quoted Primus’s Article to explain the internal and external constraints on legislative authority. Primus’s Article discusses the internal-limits canon, arguing that setting aside this canon is “consistent with the interests of federalism, with fidelity to the Founding design, and with the text of the Constitution.” Primus, 124 Yale L.J. at 576.