What is a Petition for a Writ of Certiorari?
A petition for a writ of certiorari is a legal document which asks the U.S. Supreme Court to review a decision made by a lower court, typically a federal appeals court or a state supreme court.
The term certiorari is Latin for to be more fully informed, and when the Court grants this petition, it agrees to hear the case. This is how most cases reach the Supreme Court, since the Court generally has discretion over which cases it takes.
The petitioner (the party requesting that the Supreme Court review the case) must explain to the Supreme Court why the case is important and why the lower court’s decision may be wrong or harmful. Common reasons the Court might grant certiorari include resolving conflicting decisions among different courts (called a circuit split), addressing a significant constitutional question, or interpreting a federal law.
The petition outlines the legal issues, facts, and the reasons why the case has national importance or needs clarification by the Supreme Court.
The U.S. Supreme Court receives approximately 7,000 to 8,000 petitions for writ of certiorari each year. The Court typically grants and hears oral arguments in about 70 to 80 cases, meaning it accepts roughly 1% of all petitions submitted.
What is the Maritime Drug Law Enforcement Act?
The Maritime Drug Law Enforcement Act (known as the MDLEA) is a U.S. federal law enacted in 1986 that allows the United States to prosecute drug trafficking offenses occurring on international waters outside its territorial jurisdiction. The law applies to U.S. flagged vessels, foreign vessels on the high seas with the flag country’s consent, and stateless vessels. The MDLEA’s goal is to combat drug trafficking by targeting maritime routes commonly used for transporting illegal drugs, like cocaine.
One of the most controversial features of the MDLEA is its application to individuals with no direct ties to the United States, i.e., foreign nationals arrested in international waters whose alleged drug crimes have no connection to the United States. The United States Coast Guard typically enforces the MDLEA. MDLEA Defendants are commonly arrested off the coast of South and Central America.
What is the Constitutional Basis for the MDLEA?
The MDLEA relies on Article I, Section 8, Clause 10 of the U.S. Constitution—the “Define and Punish Clause”—which empowers Congress to define and punish piracies and felonies committed on the high seas and offenses against the law of nations.
U.S. courts, including the Eleventh Circuit Court of Appeals based in Atlanta, Georgia, have for the most part upheld the MDLEA’s constitutionality.
What Does Attorney Hardy Argue in his Petition for Certiorari to the U.S. Supreme Court?
Attorney Hardy makes three main arguments in his petition for certiorari. Those arguments are summarized below.
First, Attorney Hardy Argues in his Petition that Congress Exceeded its Constitutional Power by Extending the Criminal Jurisdiction of the United States to Conduct that has No Nexus to the United States
Universal jurisdiction is the legal principle that a court can prosecute individuals for certain serious crimes, such as genocide, war crimes, crimes against humanity, and piracy, regardless of where the crime was committed, the nationality of the perpetrator, or the nationality of the victims. The idea is that with certain crimes, all countries have legal jurisdiction to prosecute alleged offenders.
Attorney Hardy argues in his petition for certiorari that historical context and legal precedent show that the Constitution’s Framer’s never intended to grant the U.S. Congress universal jurisdiction over all felonies committed on the high seas.
To support this position, attorney Hardy cites James Madison’s written notes from the Philadelphia Constitutional Convention of 1787, as well as Madison’s Federalist No. 42.
Federalist No. 42 was one of the Federalist Papers, which were a collection of 85 articles and essays written by Alexander Hamilton, James Madison, and John Jay, to promote the ratification of the Constitution. These essays are a valuable tool for understanding the text of the Constitution, i.e., what the Framers intended the words and phrases in the Constitution to mean.
The notes of the Constitutional convention as well Federalist No. 42 make clear that Madison believed that Congress should have the power to define felonies committed on the high seas because he wanted to ensure uniformity of punishment for crimes committed on the high seas by citizens of different U.S. states. However, there is no indication that Madison or the other Framers believed Congress could punish crimes committed on the high seas by foreign nationals with no connection to the United States.
John Marshall, who later became Chief Justice of the United States, thought it would be absurd to permit Congress to write laws punishing crimes committed on the high seas that had no connection to the United States. In one notable case, Marshall explained that the U.S. should not exercise jurisdiction over a crime that occurred entirely aboard a foreign ship, among foreign nationals, with no link to the United States. In the words of Marshall, who was one of the greatest jurists in the history of the United States, “… the right of every nation to punish, is limited, in its nature, to offences against the nation inflicting the punishment.”
Second, Attorney Hardy Argues in his Petition that Congress Exceeded Its Authority by Defining A “Vessel Without Nationality” to Include Vessels That Are Not Stateless Under International Law
International law provides that if the master of a vessel (i.e., the vessel’s captain) verbally claims a nationality for the vessel while on the high seas, this claim serves as prima facie evidence of the vessel’s nationality. Prima facie, which is Latin for at first sight or on its face, is a legal term referring to evidence that, when viewed alone, is sufficient to prove a particular point or win a case, unless successfully rebutted.
However, under the MDLEA, if the master of a vessel on the high seas verbally claims a nationality for the vessel, that claim is moot, unless and until the government of that claimed nation affirmatively and unequivocally agrees that the vessel is registered in that nation.
Consequently, the MDLEA allows the U.S. to treat vessels as stateless, and therefore subject to American jurisdiction, when international law would not.
Some legal scholars and judges believe that the Framers of the Constitution viewed international law as a limit on some of Congress’s enumerated powers. This is certainly the case in the “define and punish clause”, as this clause empowers Congress to define and punish “offenses against the law of nations.” Of course, the only way to determine if an offenses is against the law of nations is to consider international law.
In sum, some legal experts maintain that if there is a conflict between the MDLEA and international law, international law prevails, because the Constitution incorporates international law, and for the MDLEA to be lawful, it must not violate the constitution. The Supreme Court has yet to weigh in on this issue.
Third, Attorney Hardy Argues in his Petition that the Due Process Clause of the Fifth Amendment Requires a Nexus Between the Offense Conduct and the United States for Prosecutions under the MDLEA
The United States’s Constitution’s Fifth Amendment’s Due Process Clause guarantees that no person shall be deprived of liberty without due process of law.
Attorney Hardy argues in his petition that due process requires a connection between the alleged criminal conduct and the United States. The idea is that it is unfair to drag a person into a United States court for prosecution, unless that person could reasonably have foreseen ahead of time that their actions could land them in a United States court.
Consider this example. You are on a fishing boat 20 miles off the coast of Tampa. The captain is a friend of yours who has invited you along. The Venezuelan Navy boards the fishing boat and discovers cannabis in a hidden compartment. The captain of the fishing boat claims his vessel is registered in the United States, but the U.S. Coast Guard, shorthanded that day, does not quickly respond to the Venezuelan Government’s inquiry concerning the registration of the vessel. Would it be fair for the Venezuelan Government to transport you to Caracas to stand trial for possession of cannabis? Would you be able to present a good legal defense so far from home, in a different language, different culture, and different legal system? Even assuming you knowingly possessed the cannabis onboard the fishing boat, could you have reasonably foreseen when you boarded the boat that you would end up in a Venezuelan court?
What Happens Next?
In the fall of 2025, the U.S. Supreme Court will decide whether to grant attorney Hardy’s petition for a writ of certiorari.
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