interests. The attempt to apply U.S. law to conduct occurring abroad can cause tensions with
those other countries, most easily appreciated if we consider the likely American reaction if
France or Ireland or Saudi Arabia or Russia proclaimed its right to regulate conduct by
Americans within our borders.
But the decision about whether and when to apply U.S. law to actions occurring abroad is
a question that is left entirely to Congress. See Benz v. Compania Naviera Hidalgo, S.A., 353
U.S. 138, 147 (1957) (Congress “alone has the facilities necessary to make fairly [the] important
policy decision” whether a statute applies extraterritorially). No provision of the Constitution
limits Congress’s power to apply its laws to Americans, or to foreigners, abroad, and Congress
has on occasion done so, expressly or by clear implication. The courts’ job is simply to do their
best to understand what Congress intended. Where Congress has clearly indicated that a law
applies extraterritorially, as for example in 18 U.S.C. § 2332(a), which prohibits the murder of
U.S. citizens abroad, the courts apply the law as written. See RJR Nabisco, Inc. v. European
Cmty., 579 U.S. __, __, 2016 WL 3369423, at *9–10 (June 20, 2016). We do the same when a
law clearly applies only domestically.
The latter situation is far more common, so common that it is the ordinary presumption.
When Congress makes it a crime to “possess a controlled substance,” 21 U.S.C. § 844(a), it does
not say that it is a crime to possess dangerous or addictive drugs in the United States. It speaks
absolutely, as if proclaiming a universal rule, but we understand that the law applies only here; it
does not prohibit the possession of marijuana by a Dutchman, or even by an American, in the
Netherlands. “Congress generally legislates with domestic concerns in mind,” RJR Nabisco,
2016 WL 3369423, at *8, quoting Smith v. United States, 507 U.S. 197, 204 n.5 (1993), and so,
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