Now that the argument in King v. Burwell is over (looks like the Government will win, though three years ago it looked like the government would lose and then . . .), let us return to other subjects.
In 1799, Congress passed the Logan Act, which states, in part:
Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.
Nobody has ever been convicted under this statute, and I have to wonder whether it is constitutional. Why don’t I have a First Amendment right to carry on correspondence with a foreign government or official to influence their policies in connection with ours? If you construed this statute narrowly (say, to apply to giving the enemy information in wartime), that’s one thing, but the Logan Act covers much more. The fact that this was passed by the same Congress that gave us the Alien and Sedition Acts (and was meant to bar Jeffersonians from talking to France), combined with the total lack of convictions over more than 200 years, makes the case for constitutionality look even weaker.