Attorney David C. Hardy Files a Petition for a Writ of Certiorari to the United States Supreme Court

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.

The Trump Administration’s February 2025 Memorandum Regarding the MDLEA

In February of 2025, the Trump Administration’s Department of Justice published a memorandum for its employees, entitled “Total Elimination of Cartels and Transnational Criminal Organizations.” In that memo, the Attorney General announced that it will rarely be consistent with DOJ policy to pursue foreign arrests of persons who may be eligible for safety-valve relief or minor role adjustments under the United States Sentencing Guidelines.

The safety valve is a provision of the United States Sentencing Guidelines that, under certain conditions, permits a judge to impose a sentence below the statutory minimum mandatory sentence. Safety valve eligible defendants also may receive a reduction in their sentencing guideline offense level, which normally results is a shorter sentence. At least in the Middle District of Florida, most mariners seized by the U.S. Coast Guard pursuant to the MDLEA qualify for the safety valve.

Under the United States Sentencing Guidelines, a defendant’s role in the criminal offense is an important factor for a judge to consider at sentencing.

If a judge finds that a defendant had a minor role in a large scale drug offense, this finding can result in a dramatically shorter sentence for the defendant. Because of recent changes to the United States Sentencing Guidelines, more mariners prosecuted under the MDLEA may qualify for minor role reductions in the future.

The Trump Administration’s DOJ memo notes that it will rarely be consistent with this policy to prosecute low-level narcotics offenders arrested under the MDLEA. Therefore, if the Trump Administration’s Department of Justice is true to this memorandum, MDLEA prosecutions should decline for at least the next several years.

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 Acts that Have No Connection 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 history 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. In other words, attorney Hardy argues that when the Framers of the Constitution declared in the Constitution that Congress was to have the power to define and punish felonies on the high seas, what the Framers meant was that Congress was to have the power to define and punish felonies committed on the high seas, provided that those felonies had some connection to the United States.

In support of this argument, attorney Hardy cites a recent Supreme Court case called United States v. Rahimi. In that case, Justice Brett Kavanaugh wrote that though some provisions of the Constitution, read literally, seem to be absolute, these provisions are in fact not absolute, as there are exceptions to these provisions’ broadly worded text. Justice Kavanaugh gave examples: the First Amendment has permitted restrictions upon the content of speech—including obscenity, defamation, fraud, and incitement. The Second Amendment has exceptions to the right to bear arms, and these exceptions permit legislatures to pass laws which disarm certain individuals that are deemed dangerous.

In his petition, attorney Hardy also 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.