Failure to Register as a Sex Offender:
A Legal Analysis of 18 U.S.C. 2250
Charles Doyle
Senior Specialist in American Public Law
August 30, 2012
Congressional Research Service
7-5700
www.crs.gov
R42692
CRS Report for Congress
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epared for Members and Committees of Congress

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Failure to Register as a Sex Offender: A Legal Analysis of 18 U.S.C. 2250

Summary
Section 2250 outlaws an individual’s failure to comply with federal Sex Offender Registration
and Notification Act (SORNA) requirements. SORNA demands that an individual—previously
convicted of a qualifying federal, state, or foreign sex offense—register with state, territorial, or
tribal authorities. Individuals must register in every jurisdiction in which they live, work, or
attend school. They must also update the information whenever they move, or change their
employment or educational status. Section 2250 applies only under one of several jurisdictional
circumstances: the individual was previously convicted of a qualifying federal sex offense; the
individual travels in interstate or foreign commerce; or the individual enters, leaves, or resides in
Indian country.
Individuals charged with a violation of §2250 may be subject to preventive detention or to a
series of pre-trial release conditions. If convicted, they face imprisonment for not more than 10
years and/or a fine of not more than $250,000 as well as the prospect of a post-imprisonment term
of supervised release of not less than 5 years. An offender guilty of a §2250 offense, who also
commits a federal crime of violence, is subject to an additional penalty of imprisonment for up to
30 years and not less than 5 years for the violent crime.
The Attorney General has exercised his statutory authority to make SORNA applicable to
qualifying convictions occurring prior to its enactment. The impact of that decision has been
mitigated somewhat by an opinion of the United States Court of Appeals for the Fifth Circuit:
Congress lacks the constitutional authority to make §2250 applicable, on the basis of a prior
federal offense and intrastate noncompliance, to individuals who had served their sentence and
been released from federal supervision prior to SORNA’s enactment, United States v. Kebodeaux,
687 F.3d 232, 253 (5th Cir. 2012).
Kebodeaux aside, the lower federal appellate courts have almost uniformly rejected challenges to
§2250’s constitutional validity. Those challenges have included arguments under the
Constitution’s Ex Post Facto, Due Process, Cruel and Unusual Punishment, Commerce,
Necessary and Proper, and Spending Clauses.
This report is available in an abridged version, without the footnotes or the attribution or citations
to authority found here, as CRS Report R42691, Failure to Register as a Sex Offender: An
Abridged Legal Analysis of 18 U.S.C. 2250.


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Failure to Register as a Sex Offender: A Legal Analysis of 18 U.S.C. 2250

Contents
Introduction...................................................................................................................................... 1
Background...................................................................................................................................... 1
Elements .......................................................................................................................................... 2
Obligation to Register and Maintain Registration..................................................................... 2
Registration Requirements .................................................................................................. 2
Qualifying Convictions ....................................................................................................... 3
Juvenile Adjudications and Foreign Convictions................................................................ 5
Pre-SORNA Convictions..................................................................................................... 6
Knowing Failure to Register ..................................................................................................... 7
Jurisdictional Elements.............................................................................................................. 7
Federal Crimes .................................................................................................................... 8
Indian Country .................................................................................................................... 8
Travel .................................................................................................................................. 8
Affirmative Defense .................................................................................................................. 8
Consequences ............................................................................................................................ 9
Constitutional Considerations.......................................................................................................... 9
Ex Post Facto........................................................................................................................... 10
Due Process ............................................................................................................................. 11
Right to Travel......................................................................................................................... 12
Cruel and Unusual Punishment ............................................................................................... 13
Legislative Authority............................................................................................................... 13
Tenth Amendment ............................................................................................................. 13
Standing............................................................................................................................. 14
Spending for the General Welfare ..................................................................................... 14
Commerce Clause ............................................................................................................. 16
Necessary and Proper ........................................................................................................ 17
Separation of Powers: Non-Delegation............................................................................. 19

Contacts
Author Contact Information........................................................................................................... 19

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Failure to Register as a Sex Offender: A Legal Analysis of 18 U.S.C. 2250

Introduction
Federal law punishes convicted sex offenders for failure to register under the Sex Offender
Registration and Notification Act (SORNA), 18 U.S.C. 2250. The offense consists of three
elements: (1) an obligation to register with the authorities in any jurisdiction in which the
individual lives, works, or attends school; (2) the knowing failure to comply with registration
requirements; and (3) a jurisdictional element, i.e., (a) an obligation to register as a consequence
of a prior qualifying federal conviction or (b)(i) travel in interstate or foreign commerce, (ii)
travel into or out of Indian country; or (iii) residence in Indian country.1 Violators face
imprisonment for not more than 10 years. If an offender also commits a federal crime of violence,
he is subject to an additional penalty for that offense of imprisonment for not more than 30 years,
but not less than 5 years.2
Background
SORNA is a product of the Adam Walsh Child Protection and Safety Act.3 It calls for a revision
of an earlier nation-wide sex offender registration system. Its predecessor, the Jacob Wetterling
Act, encouraged the states to establish and maintain a registration system.4 Each of them had
done so.5 Their efforts, however, though often consistent, were hardly uniform.6
The Walsh Act preserves the basic structure of the Wetterling Act, expands upon it, and makes
more specific matters that were previously left to individual state choice. The Walsh Act
contemplates a nationwide, state-based, publicly available, contemporaneously accurate, online
system.7 Jurisdictions that fail to meet the Walsh Act’s threshold requirements face the loss of a
portion of their federal criminal justice assistance grants.8
The Walsh Act vested the Attorney General with authority to determine the extent to which
SORNA would apply to those with qualifying convictions committed prior to enactment.9 He has
promulgated implementing regulations imposing the registration requirements on those with pre-
enactment convictions.10

1 18 U.S.C. 2250(a).
2 18 U.S.C. 2250(c).
3 P.L. 109-248, 120 Stat. 587 (2006), 42 U.S.C. 16901-16945, 18 U.S.C. 2250.
4 42 U.S.C. 14071-14073 (repealed).
5 Citations to the state statutes in effect at the time of the Walsh Act’s enactment appear in CRS Report RL33967,
Adam Walsh Child Protection and Safety Act: A Legal Analysis, 1-2 n.8.
6 Reynolds v. United States, 132 S.Ct. 975, 978 (2012)(here and throughout internal citations have generally been
omitted)(“The new federal Act reflects Congress’ awareness that pre-Act registration law consisted of a patchwork of
federal and 50 individual state registration systems”).
7 Office of the Attorney General, The National Guidelines for Sex Offender Registration and Notification (National
Guidelines), 73 Federal Register 38030, 38044-45 (July 2, 2008).
8 42 U.S.C. 16925.
9 42 U.S.C. 16913(d).
10 72 Federal Register 8894-897 (February 28, 2007)(interim rule); 75 Federal Register 18849-853 (December 29,
2010)(final rule), 28 C.F.R. pt. 72.
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Failure to Register as a Sex Offender: A Legal Analysis of 18 U.S.C. 2250

Conscious of the legal and technical adjustments required of the states, the Walsh Act afforded
jurisdictions an extension to make the initial modifications necessary to bring their systems into
compliance.11 Thereafter, states not yet in compliance have been allowed to use the penalty
portion of their federal justice assistance funds for that purpose.12 The Justice Department
indicates that 15 states are now in substantial compliance with the 2006 legislation.13
Elements
Section 2250 convictions require the government to prove that (1) the defendant had an obligation
under SORNA to register and to maintain the currency of his registration information; (2) that the
defendant knowingly failed to comply; and (3) that one of the section’s jurisdictional
prerequisites has been satisfied.14
Obligation to Register and Maintain Registration
Registration Requirements
SORNA directs anyone previously convicted of a federal, state, local, tribal, or foreign qualifying
offense to register and to keep his registration information current in each jurisdiction in which he
resides, or is an employee or student.15 SORNA defines broadly the terms “student,” “employee,”
and “resides,” so that for example, the term “employee encompasses those who are self-employed
and those who are not compensated.”16 Registrants who relocate or who change their names, jobs,
or schools have three days to appear and update their registration.17 The courts have said that the

11 42 U.S.C. 16924.
12 U.S. Department of Justice, Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and
Tracking, Requests for Reallocation of Byrne JAG Funding Penalty, SMART Watch (Spring 2012), available at
http://www.ojp.gov/smart/smarwatch/12_spring/news-1.html.
13 United States Department of Justice, Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering,
and Tracking, Jurisdictions That Have Substantially Implemented SORNA, available at
http://www.ojp.usdoj.gov/smart/newsroom_jurisdictions_sorna.htm.
14 18 U.S.C. 2250(a)(“Whoever - (1) is required to register under the Sex Offender Registration and Notification Act;
(2)(A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act by reason of
a conviction under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia,
Indian tribal law, or the law of any territory or possession of the United States; or (B) travels in interstate or foreign
commerce, or enters or leaves, or resides in, Indian country; and (3) knowingly fails to register or update a registration
as required by the Sex Offender Registration and Notification Act; shall be fined under this title or imprisoned not more
than 10 years, or both”).
15 “A sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides,
where the offender is an employee, and where the offender is a student.... ” 42 U.S.C. 16913(a). “The term ‘sex
offender’ means an individual who was convicted of a sex offense,” 42 U.S.C. 16911(1). “[T]he term ‘sex offense’
means – a criminal offense ... a [designated] Federal offense ... [or] a military offense.... ” 42 U.S.C. 16911(5)(A)(1).
“The term ‘criminal offense’ means a State, local, tribal, foreign, or military offense ... or other criminal offense,” 42
U.S.C. 16911(6).
16 42 U.S.C. 16911(12)(“The term ‘employee’ includes an individual who is self-employed or works for any other
entity, whether compensated or not”); see also, 42 U.S.C. 16911(11)(“The term ‘student’ means an individual who
enrolls in or attends an educational institution, including (whether public or private) a secondary school, trade or
professional school, and institution of higher education”); 42 U.S.C. 16911(13) (“The term ‘resides’ means, with
respect to an individual, the location of the individual’s home or other place where the individual habitually lives”).
17 42 U.S.C. 16913(c)(“A sex offender shall, not later than 3 business days after each change of name, residence,
(continued...)
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Failure to Register as a Sex Offender: A Legal Analysis of 18 U.S.C. 2250

obligation runs from the time of departure rather than arrival, that is, from when the offender
leaves his former residence, job, or school rather than when he acquires a new residence or a new
job or enrolls in a different school.18
Qualifying Convictions
Only those who have been convicted of a qualifying sex offense need register. There are five
classes of qualifying offenses: (1) designated federal sex offenses; (2) specified military offenses;
(3) crimes identified as one of the “special offenses against a minor”; (4) crimes in which some
sexual act or sexual conduct is an element; and (5) attempts or conspiracies to commit any
offense in one of these other classes of qualifying offenses.19
Federal Qualifying Offenses
“A Federal offense (including an offense prosecuted under section 1152 or 1153 of title 18) under
section 1591, or chapter 109A, 110 (other than section 2257, 2257A, or 2258), or 117, of title
18:”20
• 18 U.S.C. 1591 (sex trafficking of children or by force or fraud)
• 18 U.S.C. 2241 (aggravated sexual abuse)
• 18 U.S.C. 2242 (sexual abuse)
• 18 U.S.C. 2243 (sexual abuse of ward or child)
• 18 U.S.C. 2244 (abusive sexual contact)
• 18 U.S.C. 2245 (sexual abuse resulting in death)
• 18 U.S.C. 2251 (sexual exploitation of children)
• 18 U.S.C. 2251A (selling or buying children)
• 18 U.S.C. 2252 (transporting, distributing or selling child sexually exploitive
material)
• 18 U.S.C. 2252A (transporting or distributing child pornography)
• 18 U.S.C. 2252B (misleading Internet domain names)
• 18 U.S.C. 2252C (misleading Internet website source codes)

(...continued)
employment, or student status, appear in person in at least 1 jurisdiction involved pursuant to subsection (a) and inform
that jurisdiction of all changes in the information required for that offender in the sex offender registry. That
jurisdiction shall immediately provide that information to all other jurisdictions in which the offender is required to
register”).
18 United States v. Murphy, 664 F.3d 798, 800-803 (10th Cir. 2011); United States v. Van Buren, 599 F.3d 170, 174-75
(2d Cir. 2010); United States v. Voice, 622 F.3d 870, 875 (8th Cir. 2010). Each of these cases involved a change of
residence rather than employment or education, but the distinction should make no difference.
19 42 U.S.C. 16911(1), (5), (7).
20 42 U.S.C. 16911(5)(A)(iii).
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Failure to Register as a Sex Offender: A Legal Analysis of 18 U.S.C. 2250

• 18 U.S.C. 2260 (making child sexually exploitative material overseas for export
to the U.S.)
• 18 U.S.C. 2421 (transportation of illicit sexual purposes)
• 18 U.S.C. 2422 (coercing or enticing travel for illicit sexual purposes)
• 18 U.S.C. 2423 (travel involving illicit sexual activity with a child)
• 18 U.S.C. 2424 (filing false statement concerning an alien for illicit sexual
purposes)
• 18 U.S.C. 2425 (interstate transmission of information about a child relating to
illicit sexual activity).
Military Qualifying Offenses
• UCMJ art. 120: Rape and Carnal Knowledge
• UCMJ art. 125: Forcible Sodomy and Sodomy of a Minor
• UCMJ art. 133: Conduct Unbecoming an Officer (involving any sexually violent
offense or a criminal offense of a sexual nature against a Minor or kidnapping of
a Minor)
• UCMJ art. 134: General Article involving:
- prostitution of a minor;
- indecent assault;
- assault with intent to commit rape;
- assault with intent to commit sodomy;
- indecent act with a minor;
- indecent language to a minor;
- kidnapping of a minor (by a person not parent);
- pornography involving a minor;
- conduct prejudicial to good order and discipline (involving any sexually violent
offense or a criminal offense of a sexual nature against a minor or kidnapping of
a minor);
- assimilative crime conviction (of a sexually violent offense or a criminal offense
of a sexual nature against a minor or kidnapping of a minor);
• UCMJ art. 80: Attempt (to commit any of the foregoing)
• UCMJ art. 81: Conspiracy (to commit any of the foregoing)
• UCMJ art. 82: Solicitation (to commit any of the foregoing).21
Specified Offenses Against a Child Under 18
Federal, state, local, tribal, military, or foreign offenses involving:
• An offense (unless committed by a parent or guardian) involving kidnapping.

21 U.S. Department of Defense, Department of Defense Instruction 1325.7, Enclosure 27.
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Failure to Register as a Sex Offender: A Legal Analysis of 18 U.S.C. 2250

• An offense (unless committed by a parent or guardian) involving false
imprisonment.
• Solicitation to engage in sexual conduct.
• Use in a sexual performance.
• Solicitation to practice prostitution.
• Video voyeurism as described in section 1801 of title 18.
• Possession, production, or distribution of child pornography.
• Criminal sexual conduct involving a minor, or the use of the Internet to facilitate
or attempt such conduct.
• Any conduct that by its nature is a sex offense against a minor.22
Crimes with a Sex Element
Any federal, state, local, military, or foreign “criminal offense that has an element involving a
sexual act or sexual contact with another.”23
Attempt or Conspiracy
Any attempt or conspiracy to commit one of the other qualifying offenses.24
Juvenile Adjudications and Foreign Convictions
Juvenile adjudications involving qualifying offenses trigger SORNA’s reporting requirements
only (1) if the individual was 14 years of age or older at the time of the misconduct that gave rise
to the finding and (2) the misconduct was comparable to or more severe than aggravated sexual
abuse (as defined in 18 U.S.C. 2241) or was an attempt or conspiracy to engage in such
misconduct. Aggravated sexual abuse extends to sexual acts committed by force, threat, or
incapacitating the victim.25

22 42 U.S.C. 16911((7), (5)(A)(ii), (6), (14).
23 42 U.S.C. 16911(5)(A)(i). SORNA defines neither “sexual act” nor “sexual contact.” The terms are defined
elsewhere in the United States Code as follows: “(2) the term ‘sexual act’ means - (A) contact between the penis and
the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon
penetration, however slight; (B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and
the anus; (C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any
object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or (D)
the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16
years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person;”
“(3) the term ‘sexual contact’ means the intentional touching, either directly or through the clothing, of the genitalia,
anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse
or gratify the sexual desire of any person,” 18 U.S.C. 2246(2), (3), adopted by cross reference in 20 U.S.C. 6777(e)(8);
20 U.S.C. 9134(f)(7)(E); 47 U.S.C. 254(h)(7)(H); and 47 U.S.C. 902 note (P.L. 106-554, 114 Stat. 2763A-336 (2000).
24 42 U.S.C. 16911((a)(A)(v).
25 42 U.S.C. 16911(8); 18 U.S.C. 2241; cf., National Guidelines, 73 Federal Register at 38050.
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Failure to Register as a Sex Offender: A Legal Analysis of 18 U.S.C. 2250

SORNA only insists upon coverage of those foreign convictions “obtained with sufficient
safeguards for fundamental fairness and due process of the accused.” The National Guidelines
state that “[s]ex offense convictions under the laws of any foreign country are deemed to have
been obtained with sufficient safeguards for fundamental fairness and due process if the U.S.
State Department, in its Country Reports on Human Rights Practices, has concluded that an
independent judiciary generally (or vigorously) enforced the right to a fair trial in that country
during the year in which the conviction occurred.”26 They go on to point out, however, that
SORNA establishes only minimum requirements. States and other jurisdictions remain free to
require registration based on any foreign conviction.27
Pre-SORNA Convictions
SORNA’s registration requirement is time neutral. It simply states that sex offenders must
register.28 It goes on to say, however, that the “Attorney General shall have the authority to
specify the applicability of the requirements of [SORNA] to sex offenders convicted before [its]
enactment.”29 The Supreme Court resolved a split among the lower federal courts when it
declared in Reynolds v. United States that SORNA’s “registration requirements do not apply to
pre-Act offenders until the Attorney General specifies that they do apply.”30
Yet, the Court left unresolved the question of when the Attorney General had specified that they
apply. This too is a matter upon which the lower federal appellate courts disagree. The issue
involves Administrative Procedure Act compliance. The Administrative Procedure Act (APA)
provides that, as a general rule, the public must be given an opportunity to comment before a
regulatory proposal becomes final.31 Good cause may excuse the need to honor this “notice and
comment” prerequisite.32
The Attorney General issued an Interim Rule on February 28, 2007, in which he announced that
SORNA’s requirements “apply to all sex offenders, including sex offenders convicted of the
offense for which registration is required prior the enactment of that Act.”33 He claimed, as good
cause to dispense with notice and comment, the need to eliminate uncertainty and “to protect the
public from sex offenders who failed to register.”34
On July 2, 2008, after a notice and comment period, the Attorney General promulgated the
National Guidelines, which cited the Interim Rule for the proposition that SORNA’s date of
enactment (July 27, 2006) marked the date upon which all sex offenders, including those whose
convictions predated SORNA, were bound by its dictates.35 On December 29, 2010, the Attorney

26 National Guidelines, 73 Federal Register at 38050.
27 Id. at 38051.
28 42 U.S.C. 16913(a)(“A sex offender shall register ... ”).
29 42 U.S.C. 16913(d).
30 Reynolds v. United States, 132 S.Ct. 975, 978 (2012).
31 5 U.S.C. 553.
32 5 U.S.C. 553(b), (d).
33 72 Federal Register 8894, 8897 (February 28, 2007), 28 C.F.R. §72.3.
34 72 Federal Register 8894, 8896 (February 28, 2007), 28 C.F.R. pt.72
35 National Guidelines, 73 Federal Register at 38046 (“Rather, SORNA’s requirements took effect, when SORNA was
enacted on July 26, 2007, and they have applied since that time to all sex offenders, including those whose convictions
predate SORNA’s enactment. See 72 FR 8894, 8895-96 (February 28, 2007)”).
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Failure to Register as a Sex Offender: A Legal Analysis of 18 U.S.C. 2250

General promulgated a final rule, effective January 28, 2011, that declared the 2007 Interim Rule
final with respect to SORNA’s application to convictions that predate its enactment.36
Three circuits rejected the argument that APA noncompliance invalidated the Attorney General’s
effort in the 2007 Interim Rule to bring pre-enactment convictions within SORNA requirements.37
Three others found the Attorney General had failed to meet APA standards.38 One found the error
harmless,39 and the other pair concluded that the procedures used to promulgate the 2008
National Guidelines satisfied APA requirements.40 In the view of these last two circuits, SORNA
application to pre-enactment convictions became effective on August 1, 2008, the 30 days after
valid promulgation required by the APA.41 Whichever view the other circuits find most
convincing, they are likely to settle on an application date no later than August 1, 2008.
Knowing Failure to Register
Section 2250’s second element is a knowing failure to register or to maintain current registration
information as required by SORNA. The government must show that the defendant knew of his
obligation and failed to honor it; the prosecution need not show that he knew he was bound to do
so by federal law generally or by SORNA specifically.42
Jurisdictional Elements
Section 2250 permits conviction on the basis of any three jurisdictional elements: a prior
conviction of one of the federal qualifying offenses; residence in, or travel to or from, Indian
country; or travel in interstate or foreign commerce.

36 73 Federal Register 81849 (December 28, 2010).
37 United States v. Dean, 604 F.3d 1275, 1278-282 (11th Cir. 2010)(“The Attorney General had good cause to bypass
the Administrative Procedure Act’s notice and comment requirements”); United State v. Gould, 568 F.3d 459, 470 (4th
Cir. 2009)(“[T]he Attorney General had good cause to invoke the exception to providing the 30-day notice”); United
States v. Dixon, 551 F.3d 578, 583 (7th Cir. 2008)(characterizing the APA argument as “frivolous”).
38 United States v. Johnson, 632 F.3d 912, 927-30 (5th Cir. 2011)(“[W]e do not find the Attorney General’s reasons for
bypassing the APA’s notice-and-comment and thirty day provisions persuasive”); United States v. Valverde, 628 F.3d
1159, 1164-168 (9th Cir. 2010); United States v. Cain, 583 F.3d 408, 419-24 (6th Cir. 2009).
39 United States v. Johnson, 632 F.3d at 933 (“Because the Attorney General’s rulemaking process addressed the same
issues raised by Johnson and because Johnson makes no showing that the outcome of the process would have been
different ... had notice been at its meticulous best, we find it is clear that the Attorney General’s APA violations were
harmless error”).
40 United States v. Valverde, 628 F.3d at 1164; United States v. Utesch, 596 F.3d 302, 310 (6th Cir. 2010).
41 United States v. Valverde, 628 F.3d at 1169; United States v. Stevenson, 676 F.3d 557, 562-66 (6th Cir. 2012).
42 United States v. Fuller, 627 F.3d 499, 507 (2d Cir. 2010)(“[E]very Circuit to have considered the matter has held that
SORNA is a general intent crime ... ‘There is no language requiring specific intent or a willful failure to register such
that the defendant must know his failure to register violated federal law’”), quoting, United States v. Gould, 568 F.3d
459, 468 (4th Cir. 2004), and citing in accord, United States v. Shenandoah, 595 F.3d 151, 159 (3d Cir. 2010), and
United States v. Vasquez, 611 F.3d 325, 328-29 (7th Cir. 2010); see also, United States v. Voice, 622 F.3d 870, 875-66
(8th Cir. 2010); United States v. Crowder, 656 F.3d 870, 873-76 (9th Cir. 2011).
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Failure to Register as a Sex Offender: A Legal Analysis of 18 U.S.C. 2250

Federal Crimes
Interstate travel is not required for a conviction under §2250. An individual need only have a
knowing failure to register and a prior conviction for a qualifying sex offense under federal law or
the law of the District of Columbia, the Code of Military Justice, tribal law, or the law of a United
States territory or possession.43 Federal jurisdiction flows from the jurisdictional basis for the
underlying qualifying offense.44
Indian Country
Travel to or from Indian country, or living there, will also satisfy §2250’s jurisdictional
requirement. “Indian country” consists primarily of Indian reservations, lands over which the
United States enjoys state-like exclusive or concurrent legislative jurisdiction.45
Travel
Interstate travel is the most commonly invoked of §2250’s jurisdictional elements. It applies
simply to anyone who travels in interstate or foreign commerce with a prior federal or state
qualifying offense who fails to register or maintain his registration. The qualifying offense may
predate SORNA’s enactment; the travel may not. Section “2250 does not extend to pre-enactment
travel.”46
Affirmative Defense
The Walsh Act imposes the obligation to register with state authorities on convicted sex
offenders, even when state law does not require registration.47 Prior to the Walsh Act, more than a
few state sex offender registration laws applied only to convictions occurring subsequent to their

43 18 U.S.C. 2250(a)(emphasis added)(“Whoever ... (2)(A) is a sex offender ... by reason of a conviction under Federal
law ... or (B) travels in interstate or foreign commerce ... ”); United States v. Kebodeaux, 647 F.3d 137, 142 (5th Cir.
2011), vac’d for reh’g en banc, 647 F.3d 605 (5th Cir. 2011), citing, Carr v. United States, 130 S.Ct. 2229, 2238
(2010)(“[Section] 2250(a)(2)(A) does not depend on the interstate commerce jurisdictional hook. That subsection
expressly deals with person convicted under federal sex offender statutes and is conspicuously lacking the interstate
travel element of §2250(a)(2)(B)”).
44 United States v. George, 625 F.3d 1124, 1130 (9th Cir. 2010); cf., United States v. Kebodeaux, 647 F.3d at 142
(“Federal sex offender statutes themselves are promulgated under various provisions of Article I [(Congress’
enumerated powers)]”); United States v. Comstock, 130 S.Ct. 1949, 1965 (2010)(“[A] statute is a ‘necessary and
proper’ means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their
violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those
who are not imprisoned but who may be affected by the federal imprisonment of others”).
45 18 U.S.C. 1151 (“... [T]he term ‘Indian country’ ... means (a) all land within the limits of any Indian reservation
under the jurisdiction of the United States Government ... , (b) all dependent Indian communities within the borders of
the United States whether within the original or subsequently acquired territory thereof, and whether within or without
the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including
rights- of-way running through the same”).
46 Carr v. United States, 130 S.Ct. 2229, 2242 (2010).
47 42 U.S.C. 16913(a)(“A sex offender shall register ... ”); United States v. Stock, 685 F.3d 621, 626 (6th Cir.
2012)(“The obligation SORNA does impose—the obligation to register—is imposed on sex offenders, not states....
That obligation exists whether or not a state chooses to implement SORNA’s requirements and whether or not a state
chooses to register sex offenders at all”).
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enactment or only to a narrower range of offenses than contemplated in the Walsh Act. As a
consequence of the Walsh Act and the Attorney General’s determination, states must often adjust
their registration laws in order to come into compliance. Conscious of the delays that might attend
this process, §2250(b) affords offenders an affirmative defense when they seek to register with
state authorities, are turned away, and remain persistent in their efforts to register:
In a prosecution for a violation under subsection (a), it is an affirmative defense that - (1)
uncontrollable circumstances prevented the individual from complying; (2) the individual did
not contribute to the creation of such circumstances in reckless disregard of the requirement
to comply; and (3) the individual complied as soon as such circumstances ceased to exist.48
Consequences
Federal bail laws permit the prosecution to request a pre-trial detention hearing prior to the pre-
trial release of anyone charged with a violation of §2250.49 The individual may only be released
prior to trial under condition, among others, that he be electronically monitored; be subject to
restrictions on his personal associations, residence, or travel; report regularly to authorities; and
be subject to a curfew.50
Upon conviction, the individual may be sentenced to imprisonment for a term of not more than 10
years and/or fined not more than $250,000.51 Section 2250 also sets a penalty of not more than 30
years, but not less than 5 years, in prison for the commission of a federal crime of violence when
the offender has also violated §2250.52 In any event, those sentenced to imprisonment are also
sentenced to a term of supervised release of not less than 5 years, rather than a term of not more
than 5 years that attends the more serious federal felonies.53
Constitutional Considerations
Much of the early litigation relating to §2250 involves constitutional challenges involving either
the section or SORNA. The attacks take one of two forms. One argues that SORNA or §2250
operates in a manner which the Constitution specifically forbids, for example in its clauses on Ex
Post Facto laws, Due Process, and Cruel and Unusual Punishment. The other argues that the
Constitution does not grant Congress the legislative authority to enact either §2250 or SORNA.

48 18 U.S.C. 2250(b); see also, Kennedy v. Allera, 612 F.3d 261, 269 (4th Cir. 2010)(emphasis in the original)(“Thus,
while SORNA imposes a duty on the sex offender to register, it nowhere imposes a requirement on the State to accept
such registration. Indeed, the criminal provisions of SORNA also recognize that a State can refuse registration in as
much as they allow, as an affirmative defense to a prosecution, the claim that ‘uncontrollable circumstances prevent the
individual from complying’”).
49 18 U.S.C. 3142(f)(1)(E).
50 18 U.S.C. 3142(c)(1)(B).
51 18 U.S.C. 2250(a).
52 18 U.S.C. 2250(c)(“(1) In general. - An individual described in subsection (a) who commits a crime of violence
under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal
law, or the law of any territory or possession of the United States shall be imprisoned for not less than 5 years and not
more than 30 years. (2) Additional punishment. - The punishment provided in paragraph (1) shall be in addition and
consecutive to the punishment provided for the violation described in subsection (a)”).
53 18 U.S.C. 3583(b), (k).
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These challenges probe the boundaries of the Commerce Clause, the Necessary and Proper
Clause, and the Spending Clause, among others.
The Supreme Court addressed two of the most common constitutional issues associated with sex
offender registration before the enactment of SORNA. One involved Ex Post Facto, Smith v.
Doe;54 the other Due Process, Connecticut Department of Public Safety v. Doe.55
Ex Post Facto
Neither the states nor the federal government may enact laws which operate Ex Post Facto.56 The
prohibition covers both statutes that outlaw conduct which was innocent when it occurred and
statutes that authorize imposition of a greater penalty for a crime than applied when the crime
occurred.57 The prohibitions, however, apply only to criminal statutes or to civil statutes whose
intent or effect is so punitive as to belie any but a penal characterization.58
In Smith, the Supreme Court dealt with the Ex Post Facto issue in the context of the Alaska sex
offender registration statute. It found the statute civil, not punitive, and consequently its
retroactive application did not violate the Ex Post Facto Clause.59 Its analysis60 has colored the
lower federal courts’ treatment of Ex Post Facto challenges to §2250 and SORNA. “Relying on
Smith, circuit courts have consistently held that SORNA does not violate the Ex Post Facto
Clause,”61 with one apparently limited exception. The Ninth Circuit initially held that the SORNA
obligations for pre-enactment juveniles constituted punishment, because they stripped juveniles
of the confidentiality that then surrounded juvenile proceedings.62 Thus, their enforcement against

54 538 U.S. 84 (2003).
55 538 U.S. 1 (2003).
56 U.S. Const. Art. I, §10, cl. 1; Art. I, §9, cl.3.
57 Stogner v. California, 539 U.S. 607, 612 (2003).
58 Smith v. Doe, 538 U.S. 84, 92 (2003)(“This is the first time we have considered a claim that a sex offender
registration and notification law constitutes retroactive punishment forbidden by the Ex Post Facto Clause. The
framework for our inquiry, however, is well established. We must ascertain whether the legislature meant the statute to
establish ‘civil’ proceedings. If the intention of the legislature was to impose punishment, that ends the inquiry. If,
however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether
the statutory scheme is so punitive either in purpose or effect as to negate the State’s intention to deem it ‘civil.’
Because we ordinarily defer to the legislature’s stated intent, only the clearest proof will suffice to override legislative
intent and transform what has been denominated a civil remedy into a criminal penalty”).
59 Id. at 107-108.
60 Id. at 97(“In analyzing the effects of the Act we refer to the seven factors noted in Kennedy v. Mendoza-Martinez,
372 U.S. 144, 168-69 (1963), as a useful framework.... The factors most relevant to our analysis are whether, in its
necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes
an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a
nonpunitive purpose; or is excessive with respect to this purpose”).
61 United States v. Felts, 674 F.3d 599, 606 (6th Cir. 2012), citing, United States v. DiTomasso, 621 F.3d 17, 25 (1st Cir.
2010); United States v. Guzman, 591 F.3d 83, 94 (2d Cir. 2010); United States v. Shenandoah, 595 F.3d 151, 158-59
(3d Cir. 2010); United States v. George, 625 F.3d 1124, 1131 (9th Cir. 2010); United States v. Gould, 568 F.3d 459, 466
(4th Cir. 2009); United States v. Young, 585 F.3d 199, 203-06 (5th Cir. 2009); United States v. Ambert, 561 F.3d 1202,
1207 (11th Cir. 2009); United States v. May, 535 F.3d 912, 919-20 (8th Cir. 2008); United States v. Hinckley, 550 F.3d
926, 936 (10th Cir. 2008); see also, United States v. W.B.H., 664 F.3d 848, 852-60 (11th Cir. 2011); United States v.
Leach, 639 F.3d 769, 772-73(7th Cir. 2011).
62 United States v. Juvenile Male, 590 F.3d 924, 941-42 (9th Cir. 2010), vac’d as moot, 131 S.Ct. 2860 (2011).
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such juveniles would constitute an Ex Post Facto violation, the Ninth Circuit decided.63 It
subsequently concluded that “not all applications of SORNA to individuals based on juvenile sex
offender determinations are sufficiently punitive to violate the Ex Post Facto Clause.”64 This is
particular true, the Circuit opined, when SORNA did not result in a loss of confidentiality because
of the disclosure requirements that accompanied the original qualifying juvenile adjudication.65
Due Process
The Supreme Court’s assessment of state sex offender registration statutes has been less
dispositive of process issues due to the variety of challenges brought. Neither the federal nor state
governments may deny a person of “life, liberty, or property, without due process of law.”66 Due
process requirements take many forms. They may not punish without notice: “[a] conviction fails
to comport with due process if the statute under which it is obtained fails to provide a person of
ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or
encourages seriously discriminatory enforcement.”67 They may not restrain liberty or the
enjoyment of property without an opportunity to be heard: “[a]n essential principle of due process
is that a deprivation of life, liberty, or property be preceded by notice and opportunity for hearing
appropriate to the nature of the case.”68 They may not impose punishment or restrictions that are
so fundamentally unfair as to constitute a violation of substantive due process.
In Connecticut Dept. of Public Safety v. Doe, the Court found no due process infirmity in the
Connecticut sex offender registration regime in spite of its failure to afford offenders an
opportunity to prove they were not dangerous.69 Doe suffered no injury from the absence of a pre-
registration hearing to determine his dangerousness, in the eyes of the Court, because the system
required registration of all sex offenders, both those who were dangerous and those who were
not.70 Connecticut Dept. of Public Safety forecloses the assertion that offenders are entitled to a
pre-registration “dangerousness” hearing; the relevant question under SORNA is prior conviction
not dangerousness.71
In Lambert v. California, the Court dealt with the issue of sufficiency of notice. There, the Court
held invalid a city ordinance that required all felony offenders to register within five days of their
arrival in the city.72 The Court explained that “[w]here a person did not know of the duty to
register and where there was no proof of the probability of such knowledge, he may not be
convicted consistently with due process.”73 Since “by the time that Congress enacted SORNA,

63 Id.
64 United States v. Elkins, 685 F.3d 1038, 1048 (9th Cir. 2012), citing, United States v. Juvenile Male, 670 F.3d 999 (9th
Cir. 2012).
65 United States v. Elkins, 683 F.3d at1048-49.
66 U.S. Const. Amends. V, XIV.
67 United States v. Williams, 553 U.S. 285, 304 (2008).
68 Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004).
69 Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1 (2003).
70 Id. at 7-8.
71 United States v. Ambert, 561 F.3d 1202, 1208 (11th Cir. 2009).
72 Lambert v. California, 355 U.S. 225 (1957).
73 Id. at 229-30.
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every state had a sex offender registration law in place,”74 attempts to build on Lambert have been
rejected, because the courts concluded that offenders knew or should have known of their duty to
register.75 Suggestions that differences between state and federal requirements result in
impermissible vagueness have fared no better.76
To qualify as a violation of substantive due process, a governmental regime must intrude upon a
right “deeply rooted in our history and traditions,” or “fundamental to our concept of
constitutionally ordered liberty.”77 Perhaps because the threshold is so high, §2250 and SORNA
have only infrequently been questioned on substantive due process grounds.78
Right to Travel
“The ‘right to travel’ ... embraces at least three different components. It protects the right of a
citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor
rather than an unfriendly alien when temporarily present in the second State, and, for those
travelers who elect to become permanent residents, the right to be treated like other citizens of
that State.”79
Section 2250, it has been contended, violates the right to travel because it punishes those who
travel from one state to another yet fail to register, but not those who fail to register without
leaving the state. The courts have responded, however, that the right must yield to compelling
state interest in the prevention of future sex offenses.80

74 United States v. DiTomasso, 621 F.3d 17, 26 (1st Cir. 2010).
75 United States v. Hester, 589 F.3d 86, 92-3 (2d Cir. 2009)(“In Lambert, the Supreme Court stated: ‘Registration laws
are common and their range is wide.... But the present ordinance is entirely different. Violation of its provisions is
unaccompanied by any activity whatever, mere presence in the city being the test. Moreover, circumstances which
might move one to inquire as to the necessity of registration are completely lacking.’ Like out sister circuits we find
this last statement – regarding ‘circumstances which might move one to inquire as to the necessity of registration’ – to
be critical.”), citing, United States v. Whaley, 577 F.3d 254, 262 (5th Cir. 2009); United States v. Gould, 568 F.3d 459,
468-69 (4th Cir. 2009); United States v. Dixon, 551 F.3d 578, 584 (7h Cir. 2009); United States v. Hinckley, 550 F.3d
926, 938 (10th Cir. 2009); United States v. May, 535 F.3d 912, 921 (8th Cir. 2008); see also, United States v. Gagnon,
621 F.3d 30, 33 (1st Cir. 2010); United States v. W.B.H., 664 F.3d 848, 852-60 (11th Cir. 2011); United States v. Elkins,
683 F.3d 1039, 1049-50 (9th Cir. 2012).
76 United States v. Pendleton, 636 F.3d 78, 86 (3d Cir. 2011)(“Pendleton’s federal duty to register under SORNA was
not dependent upon his duty to register under Delaware law. A person of ordinary intelligence would not assume that as
long as he or she complied with state law on a particular issue, there would be no risk of running afoul of federal law”).
The Sixth Circuit expressed a possible due process concern that it was not required to address but one that might arise
“where an inconsistency between federal and non-complying state regimes would render it impractical, or even
impossible, for an offender to register under federal law,” United States v. Felts, 674 F.3d 599, 605 (6th Cir. 2012). The
affirmative defense in §2250(b), discussed earlier, seems to designed to address this concern.
77 Washington v. Glucksberg, 521 U.S. 702, 727 (1997)
78 See, United States v. Ambert, 561 F.3d 1202, 1208-209 (11th Cir. 2009)(rejecting a substantive due process claim)
79 Saenz v. Roe, 526 U.S. 489, 500 (1999).
80 United States v. Shenandoah, 595 F.3d 151, 162-62 (3d Cir. 2010); United States v. Ambert, 561 F.3d 1202, 1209-
210 (11th Cir. 2009); cf., Bacon v. Neer, 631 F.3d 875, 878 (8th Cir. 2011).
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Cruel and Unusual Punishment
The Eighth Amendment bars the federal government from inflicting “cruel and unusual
punishment.”81 A punishment is cruel and unusual within the meaning of the Eighth Amendment
when it is grossly disproportionate to the offense.82 The courts have refused to say that sentences
within §2250’s 10-year maximum are grossly disproportionate to the crime of failing to maintain
current and accurate sex offender registration information.83 They have also declined to hold that
SORNA’s registration regime itself violates the Eighth Amendment, either because they do not
consider the requirements punitive or because they do not consider them grossly
disproportionate.84
Legislative Authority
The most frequent constitutional challenge raised against SORNA and §2250 is that Congress
lacked the constitutional authority to enact them. Some of these challenges speak to the breadth of
Congress’ constitutional powers, such as those vested under the Tax and Spend Clause, the
Commerce Clause, or the Necessary and Proper Clause. Others address contextual limitations on
the exercise of those of those powers imposed by such things as the non-delegation doctrine or
the principles of separation of powers.
Tenth Amendment
Congress enjoys only such legislative authority as may be traced to the Constitution; the Tenth
Amendment reserves to the states and the people powers not vested in it.85 Challengers of
Congress’s legislative authority to enact SORNA or the Justice Department’s authority to
prosecute failure to comply with its demands have had to face three substantial obstacles. First,
several of Congress’s constitutional powers are far reaching. Among them are the powers to
regulate interstate and foreign commerce, to tax and spend for the general welfare, and to enact
laws necessary and proper to effectuate the authority the Constitution provides.86 Second,
although a particular statute may constitute the proper exercise of more than one constitutional
power, only one is necessary for constitutional purposes.87 Finally, until recently some courts held
that the individual defendants had no standing to contest the statutory validity on the basis of
constitutional provisions such as the separation of powers doctrine and the Tenth Amendment that

81 U.S. Const. Amend. VIII.
82 Graham v. Florida, 130 S.Ct. 2011, 2021 (2010).
83 United States v. Martin, 677 F.3d 818, 822 (8th Cir. 2012).
84 United States v. Martin, 677 F.3d 818, 821-22 (8th Cir. 2012)(10-year sentence “was not grossly disproportionate to
[the] offense”); United States v. Juvenile Male, 670 F.3d 999, 1010 (9th Cir 2012)(“Given the high standard that is
required to establish cruel and unusual punishment, we hold that SORNA’s registration requirements do not violate the
Eighth Amendment”); United States v. May, 535 F.3d 912, 920 (8th Cir. 2008)(not punishment).
85 U.S. Const. Amend. X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the people”).
86 U.S. Const. Art. I, §8, cls. 1, 3, 18 (“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and
Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States ... To regulate
Commerce with foreign Nations, and among the several States, and with the Indian Tribes; ... And To make all Laws
which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by
this Constitution in the Government of the United States, or in any Department or Officer thereof”).
87 Cf., U.S. Const. Art. I, §8, cl. 18.
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were designed to protect the institutional interests of governmental entities rather than to protect
private interests.
Standing
Several earlier courts rejected SORNA challenges under the Tenth Amendment on the grounds
that the defendants had no standing. Standing refers to the question of whether a party in
litigation is asserting or “standing” on his or her own rights or only upon those of another. At one
time, there was no consensus among the lower federal appellate courts over whether individuals
had standing to present Tenth Amendment claims.88 More specifically, at least two circuits had
held that defendants convicted under §2250 had no standing to challenge their convictions on
Tenth Amendment grounds.89
Those courts, however, did not have the benefit of the Supreme Court’s Bond and Reynolds
decisions. In Bond, the Court pointed out that a defendant who challenges the Tenth Amendment
validity of the statute under which she was convicted “seeks to vindicate her own constitutional
rights.... The individual, in a proper case, can assert injury from governmental action taken in
excess of the authority that federalism defines. Her rights in this regard do not belong to the
state.”90 In Reynolds, the Court implicitly recognized the defendant’s standing when at his behest
it held that SORNA did not apply to pre-enactment convictions until after the Attorney General
had exercised his delegated authority.91 Yet, the fact a defendant’s Tenth Amendment challenge
may be heard does not mean it will succeed. Most have not succeeded.
Spending for the General Welfare
“The Congress shall have Power To lay and collect Taxes ... to pay the Debts and provide for the
common Defence and general Welfare of the United States.... ”92 “Objectives not thought to be
within Article I’s enumerated legislative fields, may nevertheless be attained through the use of
the spending power and the conditional grant of federal funds.”93 In the past, the Supreme Court
has described the limits on Congress in very general terms:

88 United States v. Johnson, 632 F.3d 912, 919 (5th Cir. 2011)(“The First, Second, Third, Eighth, and Tenth Circuits
have held that private parties do not having standing to bring such claims. the Seventh and Eleventh Circuits have
permitted private parties to assert Tenth Amendment claims”).
89 United States v. Shenandoah, 595 F.3d 151, 161-62 (3d Cir. 2010)(“Shenandoah argues that SORNA is
unconstitutional because it compels New York law enforcement to accept registrations from federally-mandated sex
offender programs in violation of the Tenth Amendment.... We need not tarry long on this argument, because
Shenandoah lacks standing to raise this issue”); United States v. Zuniga, 579 F.3d 845, 851 (8th Cir. 2009).
90 Bond v. United States, 131 S.Ct. 2355, 2363-364 (2011); see also, United States v. Felts, 674 F.3d 599, 607 (6th Cir.
2012)(“The United States counters that Felts lacks standing to assert SORNA’s alleged violation. This is no longer an
accurate statement of law. The United States’ brief was filed on June 6, 2011, ten days before the Supreme Court
decided Bond.... An individual can assert that the enforcement of a law violates the Tenth Amendment, particularly
when a defendant has a significant liberty interest at stake. Because Felts was prosecuted for violating SORNA, he has
standing to challenge the act for being enforced in violation of the Tenth Amendment”).
91 Reynolds v. United States, 132 S.Ct. 975, 984 (2012); see also, United States v. Knutson, 680 F.3d 1021, 1023 (8th
Cir. 2012)(“This court had previously held that pre-Act offenders lack standing to challenge SORNA. However, after
the parties filed their briefs, the Supreme Court ruled that pre-Act offenders have standing to challenge SORNA under
the non-delegation doctrine. Reynolds, 132 S.Ct. at 984”).
92 U.S. Const. Art. I, §8, cl. 1.
93 South Dakota v. Dole, 483 U.S. 203, 207 (1987).
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[First,] [T]he exercise of the spending power must be in pursuit of the general welfare....
Second, ... if Congress desires to condition the States’ receipt of federal funds, it must do so
unambiguously ... Third, ... conditions on federal grants ... [must be] []related to the federal
interest in particular national projects or programs.... Finally, ... other constitutional
provisions may provide an independent bar to the conditional grant of federal funds.94
Moreover, at the end of its 2011 term in National Federation of Business v. Sebelius, seven
Members of a highly divided Court concluded that the power of the Spending Clause may not be
exercised to coerce state participation in a federal program.95 Congress may use the spending
power to induce state participation; it may not present the choice under such circumstances that a
state has no realistic alternative but to acquiesce.96
SORNA establishes minimum standards for the state sex offender registers and authorizes the
Attorney General to enforce compliance by reducing by up to 10% the funds a non-complying
state would receive in criminal justice assistance funds.97 Some defendants have suggested that
this impermissibly commandeers state officials to administer a federal program and therefore
exceeds Congress’s authority under the Spending Clause. As a general matter, while Congress
may encourage state participation in a federal program, it is not constitutionally free to require
state legislators or executive officials to act to enforce or administer a federal regulatory
program.98 To date, the federal appellate courts have held that SORNA’s reduction in federal law
enforcement assistance grants for a state’s failure to comply falls on the encouragement rather
than directive side of the constitutional line.99 The fact that most states do not feel compelled to
bring their systems into full SORNA compliance may lend credence to that assessment.100

94 Id. at 207-208.
95 National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566, 2601-607 (Roberts, Ch.J. joined by Breyer
and Kagan, JJ.); 132 S.Ct. at 2656-667 (Scalia, J. with Kennedy, Thomas, and Alito, JJ.)(dissenting).
96 Cf., Id. at 2604-605 (Roberts, Ch.J.)(“It is ease to see how the Dole Court could conclude that the threatened loss of
less than half of one percent of South Dakota’s budget left that State with a ‘prerogative’ to reject Congress’s desired
policy, ‘not merely in theory but in fact.’ The threatened loss of over 10 percent of a State’s overall budget, in contrast,
is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion”); id. at
2659 (Scalia, J.)(dissenting)(“[W]hile Congress may seek to induce States to accept conditional grants, Congress may
not cross the ‘point at which pressure turns into compulsion, and ceases to be inducement”). See generally CRS Report
R42367, Medicaid and Federal Grant Conditions After NFIB v. Sebelius: Constitutional Issues and Analysis.
97 42 U.S.C. 16925(a).
98 New York v. United States, 505 U.S. 144, 175-76 (1992); Printz v. United States, 521 U.S. 898, 935 (1997)(“We held
in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold
that Congress cannot circumvent that prohibition by conscripting the States’ officers directly”).
99 United States v. Felts, 674 F.3d 599, 608 (2012)(“SORNA does not fall under the rubric of Printz, but rather relies on
Congress spending power. Failure to implement SORNA results in a loss of 10% of federal funding under [the law
enforcement assistance program]. Conditioning of funds in this manner is appropriate under South Dakota v. Dole
(stating that Congress’s power to condition the receipt of federal funds under the spending power is valid so long as (1)
the spending/withholding is in the pursuit of the general welfare; (2) the conditional nature is clear and unambiguous;
(3) the condition is rationally related to the purpose of the federal interest, program, or funding; and (4) the conduct
required to comply with the condition is not barred by the constitution itself)”); see also, United States v. Smith, 655
F.3d 839, 848 (8th Cir. 2011); United States v. Johnson, 632 F.3d 912, 920 (5th Cir. 2011); Kennedy v. Allera, 612 F.3d
261, 268-70 (4th Cir. 2010); United States v. Guzman, 591 F.3d 83, 95 (2d Cir. 2010).
100 The Justice Department indicates that fifteen states are now in substantial compliance with SORNA requirements,
Jurisdictions That Have Substantially Implemented SORNA, available at
http://www.ojp.usdoj.gov/smart/newsroom_jurisdictions_sorna.htm.
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Commerce Clause
“The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the
several States, and with the Indian Tribes.”101 The Supreme Court explained in Lopez and again in
Morrison that Congress’s Commerce Clause power is broad but not boundless.
Modern Commerce Clause jurisprudence has identified three broad categories of activity that
Congress may regulate under its commerce power. First, Congress may regulate the use of
the channels of interstate commerce. Second, Congress is empowered to regulate and protect
the instrumentalities of interstate commerce, or persons or things in interstate commerce,
even though the threat may come only from intrastate activities. Finally, Congress’
commerce authority includes the power to regulate those activities having a substantial
relation to interstate commerce ... i.e., those activities that substantially affect interstate
commerce.102
The lower federal appellate courts have rejected Commerce Clause attacks on §2250 in the
interstate travel cases, because there they believe §2250 “fits comfortably with the first two Lopez
prongs[, i.e. the regulation of (1) the “channels” of interstate commerce and (2) the
“instrumentalities” of interstate commerce].”103 They have rejected Commerce Clause attacks on
SORNA (“§16913 [SORNA] is an unconstitutional exercise of Congress’s Commerce Clause
power and because lack of compliance with §16913 is a necessary element of §2250, §2250 is
also unconstitutional”) based on the Necessary and Proper Clause:
Requiring sex offenders to update their registrations due to intrastate changes of address or
employment status is a perfectly logical way to help ensure that states will more effectively
be able to track sex offenders when they do cross state lines. To the extent that §16913
regulates solely intrastate activity, its means are reasonably adapted to the attainment of a
legitimate end under the commerce power and therefore proper.104

101 U.S. Const. Art. I, §8, cl. 3.
102 United States v. Morrison, 529 U.S. 598, 608-609 (2000), citing inter alia, United States v. Lopez, 514 U.S. 549,
558-59 (1995). Of late, seven Members of the Court have explained that the Commerce Clause does not authorize
Congress to punish those who elect not to engage in commerce, National Federation of Independent Business v.
Sebelius, 132 S.Ct. 2566, 2591 (Roberts, Ch.J. joined by Breyer and Kagan, JJ.)(“The individual mandate forces
individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be
sustained under a clause authorizing Congress to ‘regulate Commerce’”); 132 S.Ct. at 2644 (Scalia, J. with Kennedy,
Thomas, and Alito, JJ.)(dissenting)(“But that failure—that abstention from commerce—is not ‘Commerce.’ To be sure,
purchasing insurance is ‘Commerce’; but one does not regulate commerce that does not exist by compelling its
existence”).
103 United States v. Coleman, 675 F.3d 615, 620 (6th Cir. 2012), citing in accord, United States v. George, 625 F.3d
1124, 1129-130 (9th Cir. 2010); United States v. DiTomasso, 621 F.3d 17, 26 (1st Cir. 2010); United States v. Vasquez,
611 F.3d 325, 330-31 (7th Cir. 2010); United States v. Shenandoah, 595 F.3d 151, 160 (3d Cir. 2010); United States v.
Guzman, 591 F.3d 83, 89-92 (2d Cir. 2010); United States v. Whaley, 577 F.3d 254, 259-61 (5th Cir. 2009); United
States v. Gould, 568 F.3d 459, 470-75 (4th Cir. 2009); United States v. Ambert, 561 F.3d 1202, 1210-212 (11th Cir.
2009); United States v. Lawrence, 548 F.3d 1329, 1337 (10th Cir. 2008); and United States v. May, 535 F.3d 912, 911-
22 (8trh Cir. 2008).
104 United States v. Pendleton, 636 F.3d 78, 87-8 (3d Cir. 2011), quoting, United States v. Guzman, 591 F.3d 83, 90-1
(2d Cir. 2010), and citing in accord, United States v. Vasquez, 611 F.3d 325, 330(7th Cir. 2010); United States v.
Whaley, 577 F.3d 254, 261 (5th Cir. 2009); United States v. Ambert, 561 F.3d 1202, 1211-212 (11th Cir. 2009); and
United States v. Howell, 552 F.3d 709, 717 (8th Cir. 2009).
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Necessary and Proper
The Supreme Court in Comstock described the breadth of Congress’s authority under the
Necessary and Proper Clause in the context of another Walsh Act provision. The Walsh Act
authorizes the Attorney General to hold federal inmates beyond their release date in order to
initiate federal civil commitment proceedings for the sexually dangerous.105 Comstock and others
questioned application of the statute on the grounds that it exceeded Congress’s legislative
authority under the Commerce and Necessary and Proper Clauses.106
The Court pointed out that the Necessary and Proper Clause has long been understood to
empower Congress to enact legislation “rationally related to the implementation of a
constitutionally enumerated power.”107 Moreover, be the chain clear and unbroken, the challenged
statute need not necessarily be directly linked to a constitutionally enumerated power.108 The
Comstock “statute is a ‘necessary and proper’ means of exercising the federal authority that
permits Congress to create federal criminal laws [(to carry into effect its Commerce Clause power
for instance)], to punish their violation, to imprison violators, to provide appropriately for those
imprisoned, and to maintain the security of those who are not imprisoned but who may be
affected by the federal imprisonment of others.”109
The Court, however, warned that its conclusion was predicated on several factors specific to the
case before it.110 The Fifth Circuit, sitting en banc, focused on this warning when in Kebodeaux it
held that Congress lacks the legislative authority to require under SORNA “a former federal sex
offender to register an intrastate change of address after he has served his sentence and has
already been unconditionally released from prison and the military.”111
Kebodeaux had been convicted by a military court for having sexual relations with a consenting
fifteen year old while he was a twenty-one year old airman. He was sentenced to six months and
given a bad conduct discharge in 1999. He registered as a sex offender with Texas authorities in
2007. He was convicted for violating §2250 in 2008, after he failed to report that he had relocated
from El Paso to San Antonio.112 The government contended that SORNA and §2250 constituted a
valid exercise of Congress’s legislative authority on either of two grounds. First, Congress might
enact them by virtue of its Necessary and Proper Clause authority over those convicted of federal

105 18 U.S.C. 4248.
106 United States v. Comstock, 130 S.Ct. 1949, 1955-956 (2010).
107 Id. at 1956-957, citing inter alia, McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, 421 (1810), and Gonzalez v.
Raich, 545 U.S. 1, 22 (2005).
108 Id. at 1963 (“[W]e must reject respondents’ argument that the Necessary and Proper Clause permits no more than a
single step between an enumerated power and an Act of Congress”).
109 Id. at 1965.
110 Id. (“We take these five considerations together. They include (1) the breadth of the Necessary and Proper Clause,
(2) the long history of federal involvement in this arena, (3) the sound reasons for the statute’s enactment in light of the
Government’s custodial interest in safeguarding the public from dangers posed by those in federal custody, (4) the
statute’s accommodation of state interests, and (5) the statute’s narrow scope. Taken together, these considerations lead
us to conclude that the statute is a “necessary and proper” means of exercising the federal authority that permits
Congress to create federal criminal laws....”).
111 United States v. Kebodeaux, 687 F.3d 232, 253-54 (5th Cir. 2012).
112 United States v. Kebodeaux, 647 F.3d 137, 138-39 (5th Cir. 2011), vac’d for reh’g en banc, 647 F.3d 605 (5th Cir.
2011).
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offenses. Second, it might do so as a necessary and proper means of carrying into effect its
powers under the Commerce Clause.
With regard the government’s first argument, the Fifth Circuit believed that, unlike the Comstock
statute, the application of SORNA was not the latest chapter in a long tradition; was not closely
proximate to a federal custodial interest; was not particularly solicitous of state interests; and was
sweeping in its conceptual foundation (“[t]hat reasoning opens the door ... to congressional power
over anyone who was ever convicted of a federal crime of any sort”).113
The government was no more successful with its second argument. There, it contended that in
order to effectively deal with the frustration of the state registration presented by interstate travel
it was necessary and proper for Congress to include intrastate failures to comply.114 The court did
not agree. The offender classes were not the same; one federal, the other state. “Not having an
interstate travel requirement for federal sex offenders in no way helps to protect society from the
interstate travel of state sex offenders.”115 The Fifth Circuit decision may be somewhat at odds
with decisions cited earlier that hold that the SORNA is a valid exercise of the Congress’s power
under the Commerce Clause through the Necessary and Proper Clause.116

113 United States v. Kebodeaux, 687 F.3d 232, 244-45 (5th Cir. 2012)(“In summary, even taking into account ‘the
breadth of the Necessary and Proper Clause,’ Comstock, 130 S.Ct. at 1965, SORNA’s registration requirements and
criminal penalty for failure to register as a sex offender, as applied to those, like Kebodeaux, who had already been
unconditionally released from federal custody or supervision at the time Congress sought to regulate them, are not
‘rationally related’ or ‘reasonably adapted’ to Congress’s power to criminalize federal sex offenses to begin with. The
statute’s regulation of an individual, after he has served his sentence and is no longer subject to federal custody or
supervision, solely because he once committed a federal crime, (1) is novel and unprecedented despite over 200 years
of federal criminal law, (2) is not “reasonably adapted” to the government’s custodial interest in its prisoners or its
interest in punishing federal criminals, (3) is unprotective of states’ sovereign interest over what intrastate conduct to
criminalize within their own borders, and (4) is sweeping in the scope of its reasoning”).
114 United States v. Kebodeaux, 687 F.3d at 252-53.
115 Id. at 253
116 Recall that the statement of the Third Circuit to the effect that, “[r]equiring sex offenders to update their
registrations due to intrastate changes of address or employment status is a perfectly logical way to help ensure that
states will more effectively be able to track sex offenders when they do cross state lines. To the extent that §16913
regulates solely intrastate activity, its means are reasonably adapted to the attainment of a legitimate end under the
commerce power and therefore proper,” United States v. Pendleton, 636 F.3d 78, 87-8 (3d Cir. 2011), quoting, United
States v. Guzman, 591 F.3d 83, 90-1 (2d Cir. 2010), and citing in accord, United States v. Vasquez, 611 F.3d 325,
330(7th Cir. 2010); United States v. Whaley, 577 F.3d 254, 261 (5th Cir. 2009); United States v. Ambert, 561 F.3d 1202,
1211-212 (11th Cir. 2009); and United States v. Howell, 552 F.3d 709, 717 (8th Cir. 2009). See also, United States v.
George, 625 F.3d 1124, 1130 (9th Cir. 2010)(“George alternatively argues that Congress does not have the power to
require registration based on his status as a federal sex offender under 18 U.S.C. 2250(a)(2)(A). Again, we disagree.
SORNA’s registration requirements in that section are valid based on the federal government’s ‘direct supervisory
interest’ over federal sex offenders. Carr, 130 S.Ct. at 2239. As the Court recently explained in Carr: ‘It is entirely
reasonable for Congress to have assigned to the federal government a special role in ensuring compliance with
SORNA’s registration requirements by federal sex offenders—persons who typically would have spent time under
federal criminal supervision.’ Id. at 2238. Compare United States v. Comstock”); United States v. Carel, 668 F.3d
1211, 1218-224 (10th Cir. 2011)(rejecting a Necessary and Proper Clause argument but with respect to a defendant still
serving a term of supervisory release imposed for conviction of his federal qualifying offense and noting “we need not
and do not address whether application of §16913 to a federal sex offender not in federal custody or on federal
supervised release would be a permissible exercise of congressional authority under the Necessary and Proper Clause”).
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Separation of Powers: Non-Delegation
The first section of the first article of the Constitution declares that “[a]ll legislative Powers
herein granted shall be vested in Congress of the United States....”117 This means that “Congress
manifestly is not permitted to abdicate or to transfer to others the essential legislative functions
with which it is [constitutionally] vested.”118 This non-delegation doctrine, however, does not
prevent Congress from delegating the task of filling in the details of its legislative handiwork, as
long as it provides “intelligent principles” to direct the effectuation of its legislative will.119 The
circuit courts have yet to be persuaded that Congress’s SORNA delegation to the Attorney
General violates the non-delegation doctrine.120


Author Contact Information

Charles Doyle

Senior Specialist in American Public Law
cdoyle@crs.loc.gov, 7-6968



117 U.S. Const. Art. I, §1.
118 Panama Refining Co. v. Ryan, 293 U.S. 388, 421 (1935); see also, Schechter Corp. v. United States, 295 U.S. 495,
529 (1935).
119 Hampton & Co. v. United States, 276 U.S. 294, 409 (1928)(“If Congress shall lay down by legislative act an
intelligible principle to which the person or body authorized to [perform the delegated task] is directed to conform,
such legislative action is not a forbidden delegation of legislative power”); see also, American Power Co. v. S.E.C., 329
U.S. 90, 105 (1946)(“The legislative process would frequently bog down if Congress were constitutionally required to
appraise before-hand the myriad situations to which it wishes a particular policy to be applied and to formulate specific
rules for each situation. Necessity therefore fixes a point beyond which it is unreasonable and impracticable to compel
Congress to prescribe detailed rules; it then becomes constitutionally sufficient if Congress clearly delineates the
general policy, the public agency which is to apply it, and the boundaries of this delegated authority”); Whitman v.
American Trucking Ass’ns, Inc., 531 U.S. 457, 474-75 (2001)(“The scope of discretion §109(b)(1) allows is in fact well
within the outer limits of our nondelegation precedents. In the history of the Court we have found the requisite
“intelligible principle” lacking in only two statutes, one of which provided literally no guidance for the exercise of
discretion, and the other of which conferred authority to regulate the entire economy on the basis of no more precise a
standard than stimulating the economy by assuring ‘fair competition.’ ... [W]e have ‘almost never felt qualified to
second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or
applying the law’”).
120 United States v. Felts, 674 F.3d 599, 606 (6th Cir. 2012)(Congress’s delegations under SORNA possess a suitable
‘intelligible principle’ and are well within the outer limits of the Supreme Court’s nondelegation precedents”); United
States v. Smith, 655 F.3d 839, 847 (8th Cir. 2011); United States v. Guzman, 591 F.3d 83, 92-3 (2d Cir. 2010); United
States v. Whaley, 577 F.3d 254, 263-64(5th Cir. 2009); United States v. Ambert, 561 F.3d 1202, 1212-214 (11th Cir.
2009).
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