Child pornography is a federal crime, so I’m not seeing the relevance. I’m not sure what computer crimes are at issue, but I’d guess those are also under federal law. We need to rule out federal law precedents.
Here’s a very simply hypothetical. Whose motor vehicle laws must you obey when you’re within a state? Your home state’s? Courts will laugh.
So New York, which has a top state speed limit of 65, makes it a crime for a resident to exceed that speed. I now intend to go to Texas, which has a top speed limit of 85, and drive that speed limit. To do so, I borrow a car in which I’m more comfortable handling at 85 than my old junker, and announce my intent to use it in that fashion. Can New York criminalize either my action or my intent? Can New York pass a law encouraging vigilantes to civilly harass the car loaner for abetting in my intent? Would anyone consider this novel, unlitigated expansion of the law to be automatically constitutional?
Volokh’s book on computer crimes somewhat specifically mentions that in the 2010s the Federal government has significantly pre-empted most State laws on that matter but note that the Federal government choice of pre-emption is just that–a choice. The Federal government can generally hold sway over interstate crimes as it sees fit, but if it hasn’t seen fit, then the States can prosecute, and have done so in some child porn cases that involve extraterritoriality, just not (as I mentioned already) with criteria exactly the same as the hypothetical here.
What’s interesting is that, read in isolation at least, Hawaii’s anti-gambling statutes could be read to prohibit even traveling out of state to purchase a lottery ticket, but there’s no indication it’s ever been used that way, and there are a few (non-authoritative) sites purporting that residents of Hawaii could participate in a lottery or gambling by traveling out of state.
But, again, the fact the law has never actually been applied that way, and there is no indication it is intended to be applied that way only further highlights just how irregular this latest push by legislatures in Texas and elsewhere to deprive people of their fundamental rights are.
ETA: And of course it is dangerous to read statutes in isolation, as there may well be some other provision of law limiting the state’s purported jurisdiction according to certain geographic boundaries in some or all criminal cases.
Of course, but aside from the rational basis test, constitutionally nutcase extremism isn’t something that means a State criminal code is not valid. The States have broad privileges to pass unwise and stupid laws, always have.
I don’t find your opinion on how the court might rule inconsistent with any existing precedent, and maybe that is how the Federal courts would rule. But I think that in an area of law that seems to have a dearth of precedent, we’re all engaging in base speculation in considering how the Federal courts might rule.
My main point specifically is that UV was quite right that in general States can criminalize much of whatever they want, and in constitutional terms if this was actually litigated, the onus would be on the defense in a case before the courts to provide some evidence that such law was unconstitutional–hence my pointing out that unlike in a lot of circumstances there isn’t a fair onus on UV that the general police power of the States to regulate something they’ve never previously regulated has to be proven by a cite. The legal default is they can pass what laws they want, and if they are invalid from a constitutional perspective a challenger has to demonstrate that in litigation–if they fail to do so the law would stand as valid.
I think some hypothetical laws we could all reasonably conclude right away that they are unconstitutional. For example some of the complete abortion bans, the heartbeat bans etc I think are clearly unconstitutional under current law. They have obviously been passed because those States are ramping up with the expectation that a 6 justice far right majority on the court is going to overturn Roe, but at least until that happens it’s not even a very difficult argument to say all of those laws violate Roe and are thus unconstitutional. Likewise when DeSantis passed his stupid social media law that attempted to regulate what forms of speech social media companies could regulate on their private platforms, it was basically a textbook First Amendment violation–and was hit with a preliminary injunction by the very first Federal court to hear a case on it. Judge Hinkle in that case quite clearly pointed out that Florida has no valid government interest in “balancing the opinions” that are allowed to be expressed on a private platform.
In a hypothetical law like this thread is discussing, where there is essentially no firm precedent, it isn’t that crazy though to suggest that the law could stand under the State’s general policing power.
Another hypothetical: Could a State pass a law saying that a woman who moves into it with her child, who she would have aborted if not prevented from doing so by laws in her former State of residence, can sue the people responsible for enforcing those laws in her former State for child support? Is there any standpoint from which the Texas law would be OK, but this one wouldn’t?
New York is a state. I provided you with a state law, while explicitly noting that these offenses are overwhelmingly handled via federal statute. So you’re right that “we” have noted that.
This is a state law, saying that you can’t provide someone with a plane ticket to go somewhere else if you know or intend that what they plan to do there is a certain thing that’s a crime in New York. The question under discussion is whether New York can do that. They, and other states, have done so.
I think it would be a very appropriate place to start. If that NY law is constitutional, it seems like the Texas law would be, too. So, my question is, has anyone ever actually been prosecuted under that law, argued that the law is unconstitutional, and lost in court?
Completely different from what? The question was can you punish conduct that occurs in your state because of things happening outside your state that you think should be illegal. It’s legal to provide travel services. It’s illegal to provide travel services if your mental state is knowledge or intent that sex trafficking will occur. The state has thus criminalized on the basis of extra-jurisdictional conduct.
In today’s political climate it isn’t crazy to think that any law might stand.
That’s a completely different issue from the question of which untested state powers are automatically considered constitutional. Certainly it can’t be all of them.
Completely different from a protected fundamental constitutional right. Freedom of movement between states is protected by the Privileges and Immunities Clause and by the precedent of numerous Supreme Court rulings. Running a sex-trafficking business is not protected by anything.
Another theoretical contradictory comes into play here: legislative intent or the plain words of a statute.
The New York law reads to me, as a non-lawyer, clearly intended to prohibit “travel-related services” to foreign jurisdictions in defiance of federal law as well as to the illegal businesses mentioned in the first half of the sentence.
What I cannot tell is if the wording makes it illegal for a New York firm to sell “travel-related services” to go to Nevada and visit a legal brothel there.
The absence of words is sometimes as important as their presence, just as the absence of laws is sometimes just as important as their existence. Can a lawyer say which is controlling here?
It says it’s illegal to facilitate sex tourism “including to a foreign jurisdiction”, which would seem to imply that it also applies to domestic jurisdictions where prostitution is legal. But it does seem like a rather oddly phrased and apparently unnecessary clause, so there may be some reason for that.
My guess is that probably nobody has ever been prosecuted under that law, because without looking it up I assume there must be a Federal law criminalizing the same conduct (which clearly would be constitutional), and prosecutions would ordinarily happen at the Federal level.
In a post-Roe world, neither is getting an abortion.
Clearly, if you conspire to commit murder in one state and then go to another state and perpetrate the murder, the original state can definitely go after you for conspiracy to commit.
If Texas says abortion is illegal, akin to murder, and they make it illegal to conspire to commit abortion, it may not matter where the actual abortion takes place. They could get you for conspiracy if you have the abortion in Texas or elsewhere.
Nowhere are they saying “you can go from one state to another”, they’re saying “you can’t plan an abortion.”
I’d agree, I am just saying there are a category of laws that I think are facially unconstitutional, i.e. I’m a Republican Governor of Ohio and I pass a law that says it’s illegal for a newspaper to publish negative things about me. Or, under current Roe era precedent, I pass a law banning all abortion. Or, I pass a law that says “since child rape is such a heinous crime, perpetrators of child rape will not be entitled to a lawyer to assist in their defense, will not be given the presumption of innocence at trial, and will not be eligible for fourth amendment or fifth amendment protections.” Yeah, I think we can all agree if a legislature/governor was so inclined to pass such obviously unconstitutional law, we could fairly uncontroversially call them unconstitutional even prior to the expected litigation.
I don’t think the hypothetical we’re dealing with here–at least once/if Roe is gone, is so obviously unconstitutional. I am not at all looking to die on the hill of being sure it is constitutional, but I think the lawyers before the Federal courts would need to be making some novel legal arguments which to me says this is pretty fair ground to at least give some acknowledgement to the State’s police power. I’ll note that the Federal courts have ruled in ways I have not expected before (and I imagine anyone who is being honest could say the same), while I thought they were unwise policy decisions, I thought that under existing deference to Presidential authority Trump’s travel ban and his ending of the DACA program were more or less entirely within the powers of the Presidency. The courts largely disagreed, the travel ban was two failed executive orders and then finally a third Presidential Proclamation that finally passed court muster, after significantly altering its form from his initial EO.
The court’s grounds for ruling as it did on the Travel Ban and DACA were sound, I just did not anticipate they would rule that way. For that reason I have no real problem speculating the courts could find a constitutional premise on which to strike down this hypothetical law, but I do think reasonable people can agree the onus is on a litigant to prove the law is unconstitutional, not on the State to prove it is constitutional, the State’s laws are generally assumed constitutional unless demonstrated otherwise (obviously the standard isn’t like reasonable doubt, but the onus is on the litigant claiming the law is unconstitutional to demonstrate the truth of that claim.)
sorry, I must have missed this question earlier; my apologies. It would depend on the framing of the state law in question. If it doesn’t make having an abortion in the other state an element of the offence, just the intention and planning in the state itself, then that’s the offence, similar to the NY travel agency law cited earlier.
Since we’re discussing a hypothetical law, it’s hard to say much more than that. But states can and do criminalise things that don’t involve harm to anyone, or result in a particular action that affects someone else. That’s kind of issue that arises in the law of attempt, which is why I gave my hypothetical about the individual with a gun at Dealy plaza earlier. No one is harmed in it, but depending on the facts, the individual could be liable for attempt murder.
Similarly with the New York travel law cited above: as I read it, a travel agency could be liable under that law even if no act of prostitution occurs.
I hope it’s not a hijack if I ask questions about a related and more common scenario. Most abortions for women in anti-abortion states do not involve travel. Medication abortions account for 60% of all U.S.abortions now. Telemedicine and dispensing by mail make it the cheaper, more convenient option, and the criminalization laws discussed in this thread make it more appealing.
SO…a Texas woman has a telemedicine appointment with a doc in New York State, and that doctor Rx’s misoprostol and mifepristone, which the NY pharmacy sends to her Texas home: Misoprostol is FDA-approved as an “abortion pill,” but is also used to medically manage miscarriages, cause labor, or treat ulcers. Mifepristone is often used to control hyperglycemia.
How does Texas determine the parcel contains misoprostol and mifepristone?
How does Texas determine the pills were intended to provide an abortion and not for management of miscarriage, to cause labor, or to treat ulcers or hyperglycemia?
Can Texas criminally prosecute the doctor who Rx’ed the meds, even though he or she didn’t send them?
If the pending NY legislation (See my previous post) is enacted, can New York constitutionally block TX from investigating?
Can it refuse to extradite because the doctor and/or pharmacy did not flee? (Again, see post #40.)
Would the (proposed) NY laws effectively block civil cases against the doctor, pharmacy, and the patient?
This is not a “post-Roe” world as I understand the meaning of such terminology (as in, Roe is no longer relevant). Roe v Wade is still standing (with some modifications) and the right to an abortion is absolutely still protected, within the stated limitations.
In any case, that’s irrelevant to the freedom of interstate movement being a fundamental right. The murder analogy is inappropriate on several levels, not the least of which is that murder is universally condemned everywhere, whereas abortion remains a controversial and personal moral issue that I would argue underpins one of the basic reasons that “freedom of movement” is such an important fundamental right, namely that it protects the right to relocate to a place where mores and values are more in line with one’s own.
To point 6, it doesn’t look to me like it would. The law says that NY courts can’t issue subpoenas associated with such civil cases, which would present an obstacle to the prosecution meeting its burden of proof. But, unlike the proposed California laws, it doesn’t explicitly immunize its citizens from lawsuits filed in other States (and I think that proposed California law would be unconstitutional, although of course California isn’t obligated to assist in enforcing any judgment that another State might make against one of its residents),