attacks and the desire to meet the United States' obligations under international treaties provided the impetus for passage of the Hostage Taking Act." Lopez, 63 F.3d at 1473. In 1979, the United States became a signatory, along with 45 other nations, to the International Convention Against the Taking of Hostages, U.N. GAOR, Supp. No. 39, at 23, U.N. Doc. A/34/39 (1979). A subsequent rash of terrorist activity prompted President Ronald Reagan to introduce a legislative package that would send a strong and vigorous message to friend and foe alike that the United States will not tolerate terrorist activity against its citizens within its borders." See Lopez, 63 F.3d at 1472. This proposed legislation ultimately developed into the Act, which was intended to reach "incidents of hostage taking associated with international or political terrorism." See Yian, 905 F. Supp. at 164.
"The provision containing the alienage-based classification in the Act mimics language contained in the Hostage Taking Convention."
Pacheco, 902 F. Supp. at 472. The government argues that this is dispositive, that the Act satisfies the requirements of Equal Protection because it is reasonably drafted to effectuate the United States' treaty obligations. The Court agrees with defendant, however, that this begs the question: "No agreement with a foreign nation can confer power on the Congress, or on any branch of Government, which is free from the constraints of the Constitution." Reid v. Covert, 354 U.S. 1, 16, 1 L. Ed. 2d 1148, 77 S. Ct. 1222 (1957); see also Boos v. Barry, 485 U.S. 312, 324, 99 L. Ed. 2d 333, 108 S. Ct. 1157 (1988) ("Rules of international law and provisions of international agreements of the United States are subject to the Bill of Rights and other prohibitions, restrictions and requirements of the Constitution and cannot be given effect in violation of them."). Therefore, it is not enough to conclude simply that the Act effectuates the terms of an international treaty; the Act can be upheld only upon the further determination that it reasonably serves legitimate governmental ends.
The ostensible purpose for the Act -- combating international terrorism -- is undoubtedly a legitimate federal governmental end. It is a cause for genuine concern, however, that the Act reaches a significant amount of conduct unrelated to this appropriate aim. "There are acts of kidnapping that would technically fit under the Hostage Taking Act but which do not have the slightest connection with international terrorism." Song, 1995 U.S. Dist. LEXIS 18399, 1995 WL 736872, at *5 (citing the example of an "intrafamilial kidnaping" in which "the perpetrator or the victim" -- though living in this country for many years -- "happened never to have applied for citizenship"). Despite this failure of fit between the Act and its legitimate end, I find that the alienage classification is supported by at least a sufficient rational basis to satisfy the applicable deferential standard of review.
"In drafting the Act as broadly as it did, Congress necessarily determined that any crime involving aliens is sufficiently 'international' in nature to fall within the auspices of its power to legislate in the areas of foreign relations and immigration." Pacheco, 902 F. Supp. at 473. Moreover, application of the Act even in those instances most attenuated from any valid international concerns at least "serves the general principle of deterrence and thus furthers Congress's goal of controlling terrorism and hostage taking. By applying the Act strictly, non-United States nationals will be put on notice that they will be prosecuted in federal court if they cross our borders and engage in acts of kidnapping." Id. The allegations at issue in this matter reveal an additional legitimate end reasonably served by the provisions of the Act. Defendant, an alien, is being prosecuted for extortion in connection with the smuggling of illegal aliens into the United States -- a scenario which necessarily depends upon the alienage of the persons involved, and which undoubtedly is of legitimate concern to Congress. In light of these considerations, the Court must accept that the alienage classification included in the Act is at least rationally related to the government's legitimate interests in combating and deterring criminal acts implicating international and immigration concerns.
It is unfortunate that the federal government, through its treaty power and in subsequent legislation, saw fit to criminalize conduct specifically on the basis of the alienage of the persons involved. It troubles this Court to contemplate that its holding today might come to be relied upon as authority in support of some other provision or regime which, at bottom, effects no sounder purpose than to discriminate against persons on the basis of their alienage. Nevertheless, this does not appear to be the motivation behind the Hostage Taking Act. In light of the deference afforded the federal government in connection with legislation passed pursuant to its immigration and foreign policy powers, the Act must therefore be upheld as constitutional.
II. The Tenth Amendment
Though defendant invokes the Tenth Amendment in support of his Motion to Dismiss, his briefing is focused almost exclusively upon his claims under the Equal Protection Clause. Defendant's Tenth Amendment claim rests upon his general assertion that, by reaching a broad range of kidnapping not directly related to any national or international concerns, Congress has intruded into an area properly reserved to the police powers of the states. However, as already discussed, the Act was narrowly tailored to implement the terms of the International Convention. Congress thereby acted within its power, as specifically authorized under the Constitution, to enact such legislation as is "necessary and proper" to implement treaties. U.S. Const. art. I, § 8, cl. 18. Therefore, as held by the Courts in Yian and Song, the Tenth Amendment provides no basis for rejecting the Act as unconstitutional. See Yian, 905 F. Supp. at 165; Song, 1995 U.S. Dist. LEXIS 18399, 1995 WL 736872, at *4 ("The need to comply with the Treaty while not at the same time violating the Tenth Amendment does, in this case, constitute a legitimate governmental purpose for the use of classification.").
For the reasons set forth above, the Court denies defendant's Motion to Dismiss, and rejects his claim that 18 U.S.C. § 1203 was passed in violation of the Equal Protection clause and the Tenth Amendment of the United States Constitution.
Dated: New York, New York
January 7, 1997