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 Supreme Court rejected the suggestion of the United States Court of Appeals for the Fifth Circuit that 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, 134 S.Ct. 2496 (2013).
The Fifth Circuit's Kebodeaux opinion 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.
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
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
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
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
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 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
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
"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
Federal, state, local, tribal, military, or foreign offenses involving:
Any federal, state, local, military, or foreign "criminal offense that has an element involving a sexual act or sexual contact with another."23
Any attempt or conspiracy to commit one of the other qualifying offenses.24
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 The Federal Juvenile Delinquency Act limits disclosure of federal judicial delinquency proceedings.26 It does not, however, excuse compliance with SORNA's registration requirements.27
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."28 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.29
SORNA's registration requirement is time neutral. It simply states that sex offenders must register.30 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."31 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."32
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.33 Good cause may excuse the need to honor this "notice and comment" prerequisite.34
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."35 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."36
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.37 On December 29, 2010, the Attorney 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.38
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.39 Four others found the Attorney General had failed to meet APA standards.40 One found error and that the government had not shown that the error was prejudicial as it was required to do.41 Another found the error harmless.42 The other pair concluded that the procedures used to promulgate the 2008 National Guidelines satisfied APA requirements.43 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.44 Whichever view the other circuits find most convincing, they are likely to settle on an application date no later than August 1, 2008.
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.45
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.
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.46 Federal jurisdiction flows from the jurisdictional basis for the underlying qualifying offense.47
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.48
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."49
The Walsh Act imposes the obligation to register with state authorities on convicted sex offenders, even when state law does not require registration.50 Prior to the Walsh Act, more than a few state sex offender registration laws applied only to convictions occurring subsequent to their 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."51
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 §2250.52 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.53
Upon conviction, the individual may be sentenced to imprisonment for a term of not more than 10 years and/or fined not more than $250,000.54 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 §2250.55 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.56
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. 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;57 the other Due Process, Connecticut Department of Public Safety v. Doe.58
Neither the states nor the federal government may enact laws which operate Ex Post Facto.59 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.60 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.61
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.62 Its analysis63 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,"64 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.65 Thus, their enforcement against such juveniles would constitute an Ex Post Facto violation, the Ninth Circuit decided.66 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."67 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.68
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."69 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."70 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."71 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.72 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.73 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.74
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.75 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."76 Since "by the time that Congress enacted SORNA, every state had a sex offender registration law in place,"77 attempts to build on Lambert have been rejected, because the courts concluded that offenders knew or should have known of their duty to register.78 Suggestions that differences between state and federal requirements result in impermissible vagueness have fared no better.79
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."80 Perhaps because the threshold is so high, §2250 and SORNA have only infrequently been questioned on substantive due process grounds.81
"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."82
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.83
The Eighth Amendment bars the federal government from inflicting "cruel and unusual punishment."84 A punishment is cruel and unusual within the meaning of the Eighth Amendment when it is grossly disproportionate to the offense.85 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.86 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.87
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's 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.
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.88 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.89 Second, although a particular statute may constitute the proper exercise of more than one constitutional power, only one is necessary for constitutional purposes.90 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 were designed to protect the institutional interests of governmental entities rather than to protect private interests.
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.91 More specifically, at least two circuits had held that defendants convicted under §2250 had no standing to challenge their convictions on Tenth Amendment grounds.92
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."93 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.94 Yet, the fact a defendant's Tenth Amendment challenge may be heard does not mean it will succeed. Most have not succeeded.
"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.... "95 "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."96 In the past, the Supreme Court has described the limits on Congress in very general terms:
[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.97
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.98 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.99
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.100 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.101 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.102 The fact that most states do not feel compelled to bring their systems into full SORNA compliance may lend credence to that assessment.103
"The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."104 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.105
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]."106 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.107
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.108 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.109
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."110 Moreover, be the chain clear and unbroken, the challenged statute need not necessarily be directly linked to a constitutionally enumerated power.111 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."112
The Court, however, warned that its conclusion was predicated on several factors specific to the case before it.113 Acting on this suggestion, the Fifth Circuit, sitting en banc, erroneously concluded that SORNA, as applied to Kebodeaux, rested beyond Congress's legislative reach.114
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.115
The Constitution empowers Congress to make rules for the governing and regulation of the armed forces.116 It also vests Congress with broad implementing authority to enact legislation necessary and proper to carry into effect this military governance power and the other powers conveyed by the Constitution.117 The Fifth Circuit believed that, unlike the Comstock statute, the application of SORNA was not closely proximate to a federal custodial interest 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").118
Justice Breyer, the author of the Supreme Court's majority opinion, however, concluded that the Fifth Circuit had overlooked an easily missed bridge between the military governance power and the SORNA implementation of that power.119 At the time of his conviction and subsequent release, a federal predecessor, the Wetterling Act, required Kebodeaux to register with Texas state authorities and made his failure to do so a federal crime.120 Much like Comstock, the Wetterling Act addressed the consequences of the release of sex offenders from the federal custody. Thus, Congress might validly elect in the Wetterling Act to implement its military governance authority by fixing the consequences of federal prisoners discharged from federal custody following a court martial.121 By the same token, it might validly modify and expand in SORNA the consequences established in the Wetterling Act.122
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.... "123 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."124 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.125 The circuit courts have yet to be persuaded that Congress's SORNA delegation to the Attorney General violates the non-delegation doctrine.126
| 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. |
| 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, 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). |
| 21. |
U.S. Department of Defense, Department of Defense Instruction 1325.7, Enclosure 27. |
| 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. |
| 26. |
18 U.S.C. 5038(a). |
| 27. |
United States v. Under Seal, 709 F.3d 257, 261-63 (4th Cir. 2013). |
| 28. |
National Guidelines, 73 Federal Register at 38050. |
| 29. |
Id. at 38051. |
| 30. |
42 U.S.C. 16913(a)("A sex offender shall register ... "). |
| 31. |
42 U.S.C. 16913(d). |
| 32. |
Reynolds v. United States, 132 S.Ct. 975, 978 (2012). |
| 33. |
5 U.S.C. 553. |
| 34. |
5 U.S.C. 553(b), (d). |
| 35. |
72 Federal Register 8894, 8897 (February 28, 2007), 28 C.F.R. §72.3. |
| 36. |
72 Federal Register 8894, 8896 (February 28, 2007), 28 C.F.R. pt.72 |
| 37. |
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)"). |
| 38. |
73 Federal Register 81849 (December 28, 2010). |
| 39. |
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"). |
| 40. |
United States v. Reynolds, 710 F.3d 498, 510-14 (3d Cir. 2013); 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). |
| 41. |
United States v. Reynolds, 710 F.3d at 514-24. |
| 42. |
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"). |
| 43. |
United States v. Valverde, 628 F.3d at 1164; United States v. Utesch, 596 F.3d 302, 310 (6th Cir. 2010). |
| 44. |
United States v. Valverde, 628 F.3d at 1169; United States v. Stevenson, 676 F.3d 557, 562-66 (6th Cir. 2012). |
| 45. |
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). |
| 46. |
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)"). |
| 47. |
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"). |
| 48. |
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"). |
| 49. |
Carr v. United States, 130 S.Ct. 2229, 2242 (2010). |
| 50. |
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"). |
| 51. |
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'"). |
| 52. |
18 U.S.C. 3142(f)(1)(E). |
| 53. |
18 U.S.C. 3142(c)(1)(B). |
| 54. |
18 U.S.C. 2250(a). |
| 55. |
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)"). |
| 56. |
18 U.S.C. 3583(b), (k). |
| 57. |
538 U.S. 84 (2003). |
| 58. |
538 U.S. 1 (2003). |
| 59. |
U.S. Const. Art. I, §10, cl. 1; Art. I, §9, cl.3. |
| 60. |
Stogner v. California, 539 U.S. 607, 612 (2003). |
| 61. |
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"). |
| 62. |
Id. at 107-108. |
| 63. |
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"). |
| 64. |
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). |
| 65. |
United States v. Juvenile Male, 590 F.3d 924, 941-42 (9th Cir. 2010), vac'd as moot, 131 S.Ct. 2860 (2011). |
| 66. |
Id. |
| 67. |
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). |
| 68. |
United States v. Elkins, 683 F.3d at1048-49. |
| 69. |
U.S. Const. Amends. V, XIV. |
| 70. |
United States v. Williams, 553 U.S. 285, 304 (2008). |
| 71. |
Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004). |
| 72. |
Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1 (2003). |
| 73. |
Id. at 7-8. |
| 74. |
United States v. Ambert, 561 F.3d 1202, 1208 (11th Cir. 2009). |
| 75. |
Lambert v. California, 355 U.S. 225 (1957). |
| 76. |
Id. at 229-30. |
| 77. |
United States v. DiTomasso, 621 F.3d 17, 26 (1st Cir. 2010). |
| 78. |
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). |
| 79. |
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. |
| 80. |
Washington v. Glucksberg, 521 U.S. 702, 727 (1997) |
| 81. |
See, United States v. Ambert, 561 F.3d 1202, 1208-209 (11th Cir. 2009)(rejecting a substantive due process claim) |
| 82. |
Saenz v. Roe, 526 U.S. 489, 500 (1999). |
| 83. |
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). |
| 84. |
U.S. Const. Amend. VIII. |
| 85. |
Graham v. Florida, 130 S.Ct. 2011, 2021 (2010). |
| 86. |
United States v. Martin, 677 F.3d 818, 822 (8th Cir. 2012). |
| 87. |
United States v. Under Seal, 709 F.3d 257, 263-66 (4th Cir. 2013)(not punishment); 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). |
| 88. |
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"). |
| 89. |
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"). |
| 90. |
Cf., U.S. Const. Art. I, §8, cl. 18. |
| 91. |
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"). |
| 92. |
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). |
| 93. |
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"). |
| 94. |
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"). |
| 95. |
U.S. Const. Art. I, §8, cl. 1. |
| 96. |
South Dakota v. Dole, 483 U.S. 203, 207 (1987). |
| 97. |
Id. at 207-208. |
| 98. |
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). |
| 99. |
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. |
| 100. |
42 U.S.C. 16925(a). |
| 101. |
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"). |
| 102. |
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). |
| 103. |
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. |
| 104. |
U.S. Const. Art. I, §8, cl. 3. |
| 105. |
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"). |
| 106. |
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. Parks. 698 F.3d 1, 6-7 (1st Cir. 2012); 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). |
| 107. |
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). |
| 108. |
18 U.S.C. 4248. |
| 109. |
United States v. Comstock, 130 S.Ct. 1949, 1955-956 (2010). |
| 110. |
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). |
| 111. |
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"). |
| 112. |
Id. at 1965. |
| 113. |
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.... "). |
| 114. |
United States v. Kebodeaux, 687 F.3d 232, 253-54 (5th Cir. 2012)(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"), rev'd, 133 S.Ct. 2496 (2013). |
| 115. |
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). |
| 116. |
U.S. Const. Art. I, §8, cl. 14 ("The Congress shall have Power ... To make Rules for the Government and Regulation of the land and naval Forces"). Some of the analysis that follows was borrowed from a Kebodeaux legal sidebar, CRS, SORNA Clears Constitutional Hurdle. |
| 117. |
U.S. Const. Art. I, §8, cl. 18 ("The Congress shall have Power ... 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""). |
| 118. |
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"). |
| 119. |
United States v. Kebodeaux, 133 S.Ct. at 2501 ("[W]e need not go much further than the Circuit's critical assumption that Kebdeaux's release was 'unconditional,' i.e., that after Kebodeaux's release, he was not in 'any ... special relationship with the federal government.' To the contrary, the Solicitor General, tracing through a complex set of statutory cross-references, has pointed out that at the time of his offense and conviction Kebodeaux was subject to the federal Wetterling Act, an Act that imposed upon him registration requirements very similar to those that SORNA later mandated"). |
| 120. |
42 U.S.C. 14072(i)(1994 ed., Supp. IV). |
| 121. |
United States v. Kebodeaux, 133 S.Ct. at 2502 ("No one here claims that the Wetterling Act, as applied to military sex offenders like Kebodeaux, falls outside the scope of the Necessary and Proper Clause. And it is difficult to see how anyone could persuasively do so"). |
| 122. |
Id. at 2505 ("SORNA's more specific changes reflect Congress' determination that the statute, changed in respect to frequency, penalties and other details, will keep track of more officers and will encourage States themselves to adopt its uniform standards. No one here claims that these changes are unreasonable or that Congress could not reasonably have found them 'necessary and proper' means for furthering its pre-existing registration ends"). |
| 123. |
U.S. Const. Art. I, §1. |
| 124. |
Panama Refining Co. v. Ryan, 293 U.S. 388, 421 (1935); see also, Schechter Corp. v. United States, 295 U.S. 495, 529 (1935). |
| 125. |
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'"). |
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United States v. Fernandez, 710 F.3d 847, 849-50 (8th Cir. 2013)("SORNA's broad policy statement that it was designed 'to protect the public from sex offenders and offenders against children' [is] 'sufficient to provide an intelligible principle for delegation'"); United States v. Parks, 698 F.3d 1, 7-8 (1st Cir. 2012); United States v.Felts, 674 F.3d 599, 606 (6th Cir. 2012); 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). |