SORNA: An Abridged Legal Analysis of
November 5, 2021
18 U.S.C. § 2250 (Failure to Register
Charles Doyle
as a Sex Offender)
Senior Specialist in
American Public Law
Section 2250(a) of Title 18 of the United States Code 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 reside, work, or attend school. They must also update the
information whenever they move, or change their employment or educational status. For some offenders, the
obligation to register and to periodically refresh their registration information may be subject to a term limit
whose duration is based on the severity of the sex offense that triggered the obligation to register.
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. The Supreme Court in Nichols v. United States held that
SORNA, as originally written, had limited application to sex offenders in the United States who relocated abroad.
The International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced
Notification of Traveling Sex Offenders [Act], P.L. 114-119, however, anticipated and addressed the limitation
identified in Nichols by adding a new offense, Section 2250(b), that replicates the attributes of the earlier
prohibition.
Individuals charged with a violation of Section 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 Section 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 exercised statutory authority to make SORNA applicable to qualifying convictions
occurring prior to its enactment. The Supreme Court in United States v. Kebodeaux, 570 U.S. 387 (2013), rejected
the suggestion that Congress lacks the constitutional authority to make Section 2250 applicable, because 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. The Supreme Court in Gundy v. United States, 139 S. Ct. 2116
(2019), also rejected the argument that SORNA’s grant of authority to the Attorney General constituted an
unguided delegation of legislative authority.
The lower federal appellate courts have rejected other challenges to Section 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.

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SORNA: An Abridged Legal Analysis of 18 U.S.C. § 2250

Introduction
Federal law punishes convicted sex offenders if they fail to register or to update their registration
as the Sex Offender Registration and Notification Act (SORNA) demands.1 The basic offense
under Section 2250(a) consists of three elements: (1) a continuing obligation to report to the
authorities in any jurisdiction in which the individual resides, 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, or (ii) travel into or out of Indian Country, or
(c) residence in Indian Country. Violators face imprisonment for not more than 10 years. The
registration offense carries an additional penalty of imprisonment for not more than 30 years, but
not less than 5 years, if the offender is also guilty of a federal crime of violence.
Federal law also punishes overseas travel coupled with a failure to register that intent. The
elements of this shadow or supplemental offense, Section 2250(b), are: (1) an obligation to
register; (2) a knowing failure to report an intent to travel internationally; and (3) engaging in or
attempting to engage in international travel. The affirmative defense and sentencing provisions
are the same as those that apply to the original offense.
The Justice Department indicates that 18 states, 4 territories, and numerous tribes are now in
substantial compliance with the 2006 legislation.
Elements
Obligation to Register and Maintain Registration
SORNA directs anyone previously convicted of a federal, state, local, tribal, or foreign qualifying
offense to register and to keep his registration information current for as long as SORNA requires
in each jurisdiction in which he resides or is an employee or a student. Initially, he must also
register in the jurisdiction where the conviction occurred if different from his residence.
Registrants who relocate or who change their names, jobs, or schools have three business days to
appear and update their registration in at least one of the jurisdictions in which they reside, work,
or attend school. 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.
In Nichols v. United States, the Supreme Court found that SORNA’s requirements in place at the
time did not apply when offenders relocated abroad. Anticipating the problem, Congress passed
the International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through
Advanced Notification of Traveling Sex Offenders [Act], which among other things, amends
SORNA to compel offenders to supplement their registration statements with information relating
to their plans to travel abroad.
Qualifying Convictions
Only those convicted of a qualifying sex offense need to register. There are five classes of
qualifying offenses: (1) designated federal sex offenses; (2) specified military offenses; (3) crimes

1 18 U.S.C. § 2250. This is an abridged version of CRS Report R42692, SORNA: A Legal Analysis of 18 U.S.C. § 2250
(Failure to Register as a Sex Offender), without the footnotes or the attribution or citations to authority found in the
unabridged report.
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SORNA: An Abridged Legal Analysis of 18 U.S.C. § 2250

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. Certain foreign convictions, juvenile adjudications, and
offenses involving consensual sexual conduct do not qualify as offenses that require offenders to
register under SORNA. SORNA does not provide an avenue to challenge the validity of a
qualifying domestic conviction.
Federal Qualifying Offenses
Federal qualifying offenses “(including an offense prosecuted under section 1152 or 1153 of title
18)” consist of those “under section 1591, or chapter 109A, 110 (other than section 2257, 2257A,
or 2258), or 117, of title 18.”
Military Qualifying Offenses
The list of military qualifying offenses varies according to the date of the offense. For offenses
committed on or after June 28, 2012, the inventory includes conviction under: (1) Uniform Code
of Military Justice (UCMJ) art.120 (Rape, Sexual Assault, Aggravated Sexual Contact, and
Abusive Sexual Contact); (2) UCMJ art. 120b: (Rape, Sexual Assault, and Sexual Abuse (of a
Child)); (3) UCMJ art.120c (Pornography and Forcible Pandering); (4) UCMJ art.134 (General
article – Prostitution and Child Pornography); (5) UCM J art. 80 (Attempt (to commit a
qualifying offense)); (6) UCMJ art. 81 (Conspiracy (to commit a qualifying offense)); (7) UCMJ
art. 82 (Solicitation (to commit a qualifying offense)).
Specified Offenses Against a Child Under 18
Other federal, state, local, tribal, military, or foreign offenses qualify when they involve: (a) an
offense against a child (unless committed by a parent or guardian) involving kidnaping; (b) an
offense against a child involving false imprisonment (unless committed by a parent or guardian);
(c) solicitation to engage in sexual conduct with a child; (d) use of a child in a sexual
performance; (e) solicitation to practice child prostitution; (f) video voyeurism as described in
section 1801 of title 18 (committed against a child); (g) possession, production, or distribution of
child pornography; (h) criminal sexual conduct involving a minor or the use of the Internet to
facilitate or attempt such conduct; (i) any conduct that by its nature is a sex offense against a
minor.
Crimes with a Sex Element
In addition, any federal, state, local, military, or foreign “criminal offense that has an element
involving a sexual act or sexual contact with another” qualifies.
Attempt or Conspiracy
Finally, any attempt or conspiracy to commit one of the other qualifying offenses also qualifies.
Juvenile Adjudications
Beyond conviction as an adult for a qualifying offense, juvenile adjudications that involve
qualifying offenses trigger SORNA’s reporting requirements (1) if the individual was 14 years or
older at the time of the misconduct and (2) the misconduct “was comparable to or more severe
than” the federal crime of aggravated sexual abuse (as defined in 18 U.S.C. § 2241) or was an
attempt or conspiracy to engage in such misconduct. The federal aggravated sexual abuse
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SORNA: An Abridged Legal Analysis of 18 U.S.C. § 2250

offenses include sexual acts committed by force, threat, or incapacitating the victim. Although the
Federal Juvenile Delinquency Act limits disclosure of federal judicial delinquency proceedings, it
does not excuse compliance with SORNA’s registration requirements.
Consensual Sex Offenses
SORNA excludes from its registration requirements adult consensual sexual offenses. The
exception does not extend, however, to instances when the victim is in the custody of the
offender. The exception is available, however, when the victim was a child 13 years or older and
the offender was “not more than 4 years older than the victim.”
Foreign Convictions
Qualifying foreign convictions consist only of those “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.” 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.
Expired Obligation
Section 2250 applies only to those with an obligation to register or to periodically refresh their
registration information, and the duration of those obligations under SORNA vary according to
the classification of an offender’s qualifying offense of conviction. SORNA classifies offenders in
tiers, with Tier III reserved for offenders convicted of the most serious federal sex offenses or
their equivalents under state law. SORNA assigns offenders with somewhat less serious federal
sex offenses or their equivalents under state law to Tier II. Tier I consists of all other offenders
required to register.
Absent a reduction for a clean record, Tier I offenders have a registration period of 15 years; Tier
II offenders have a registration period of 25 years; and Tier III offenders have a registration
period of life. Tier I offenders with a clean record for 10 years are eligible for a 5-year reduction
of their registration period. Tier II offenders have no opportunity of a clean-record reduction.
Offenders classified as Tier III offenders by virtue of a juvenile adjudication with a clean record
for 25 years are eligible for reduction of their life-time registration period to 25 years.
Jurisdictional Elements
Section 2250(a) permits prosecution and conviction on the basis of any of three jurisdictional
elements: travel in interstate or foreign commerce; residence in, or travel to or from, Indian
Country; or a prior conviction of one of the federal qualifying offenses.
Travel: Interstate travel is the most commonly invoked of Section 2250(a)’s jurisdictional
elements. It applies to anyone who travels in interstate or foreign commerce with a prior federal
or state qualifying offense who knowingly fails to register or maintain his registration. Section
2250 does not “require[] that a defendant’s interstate travel not be legally compelled.” In the case
of foreign travel, it also applies to anyone who fails to supplement his registration with
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information concerning his intent to travel abroad. The qualifying offense may predate SORNA’s
enactment; the travel may not.
Indian Country: Travel to or from Indian Country, or living there, will also satisfy Section
2250(a)’s jurisdictional requirements. “Indian Country” consists primarily of Indian reservations,
lands over which the United States enjoys state-like exclusive or concurrent legislative
jurisdiction.
Federal Crimes: Travel is only one of Section 2250(a)’s jurisdictional elements; prior conviction
of a federal qualifying offense will also suffice. 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 UCMJ, tribal law, or the law of a United States territory or possession.
Federal jurisdiction flows from the jurisdictional basis for the underlying qualifying offense.
Knowing Failure to Register
Section 2250(a)’s third element, after the jurisdictional element and an obligation to register or
update, 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.
Affirmative Defense
SORNA insists that convicted sex offenders register with state authorities, even when state law
does not require registration. Prior to SORNA, 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 SORNA and the
Attorney General’s determination to cover pre-SORNA convictions, states must often adjust their
registration laws to come into full compliance. Conscious of the delays and difficulties that might
attend this process, Section 2250(c) 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.”
Other Attributes
Venue: Although some courts remain to be convinced, it seems that a Section 2250 prosecution
involving interstate travel may be brought in either the state of departure or the state of arrival.
Bail: 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 Section 2250. The individual may only be
released prior to trial under conditions, which may include 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.
Fine and Imprisonment: 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. Section 2250(d) also sets
an additional penalty of imprisonment for not more than 30 years, but not less than 5 years, for
the commission of a federal crime of violence when the offender has also violated Section 2250.
Section 16(a) defines “crime of violence” for purposes of title 18 as “[a]n offense that has as an
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element the use, attempted use, or threatened use of physical force against the person or property
of another.”
Sentencing Guidelines: The Sentencing Guidelines heavily influence the sentences imposed for
violations of Section 2250. A district court must begin by calculating the sentencing range
recommended by the Sentencing Guidelines. The court must then consider the recommendation
along with the general statutory sentencing principles. The defendant, as well as the prosecution,
may appeal the sentence imposed, which the appellate courts may overturn if it is either
procedurally or substantively unreasonable. A sentence is procedurally unreasonable when it is
the product, among other things, of an erroneous Guidelines calculation. It is substantively
unreasonable when it is “[dis]proportionate to the seriousness of the circumstances of the offense
[or] offender, [or] [in]sufficient or greater than necessary to comply with the purposes of the
federal sentencing statute.”
Sections 2A3.5 and 2A3.6 of the Sentencing Guidelines provide the initial guidelines for Section
2250 offenses. Section 2A3.5 applies to cases other than those under the aggravated sentencing
provisions of 18 U.S.C. § 2250(d), and sets a defendant’s base offense level according to
SORNA’s tier classifications. A SORNA Tier III sex offender for sentencing purposes is:
[A] sex offender whose offense is punishable by imprisonment for more than 1 year and-
(A) is comparable to or more severe than the following offenses, or an attempt or
conspiracy to commit such an offense:
(i) aggravated sexual abuse or sexual abuse (as described in sections 2241 and 2242
of title 18); or
(ii) abusive sexual contact (as described in section 2244 of title 18) against a minor
who has not attained the age of 13 years;
(B) involves kidnapping of a minor (unless committed by a parent or guardian); or
(C) occurs after the offender becomes a tier II sex offender.
A SORNA Tier II sex offender is:
[A] sex offender other than a tier III sex offender whose offense is punishable by
imprisonment for more than 1 year and-
(A) is comparable to or more severe than the following offenses, when committed
against a minor, or an attempt or conspiracy to commit such an offense against a minor:
(i) sex trafficking (as described in section 1591 of title 18);
(ii) coercion and enticement (as described in section 2422(b) of title 18);
(iii) transportation with intent to engage in criminal sexual activity (as described in
section 2423(a) of title 18);
(iv) abusive sexual contact (as described in section 2244 of title 18);
(B) involves-
(i) use of a minor in a sexual performance;
(ii) solicitation of a minor to practice prostitution; or
(iii) production or distribution of child pornography; or
(C) occurs after the offender becomes a tier I sex offender.
A SORNA Tier I sex offender is any sex offender who is not a Tier II or III sex offender.
As noted, the courts use a “categorical approach” to determine whether a prior state, military, or
foreign conviction qualifies a defendant as a Tier I, II, or III sex offender. Under the categorical
approach, courts examine the elements of the state offense. Here, too, courts favor the categorical
approach when SORNA describes the qualifying state statute of conviction by reference to a
particular federal statute or statutes; or when it refers to “elements” rather than “conduct”; or to
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SORNA: An Abridged Legal Analysis of 18 U.S.C. § 2250

“convictions” rather than “conduct committed.” Under the categorical approach, the statutory
elements of the prior state offense must fit completely within the footprint created by the
elements of the federal statute or statutes. There is no match if the state statute sweeps more
broadly than its federal counterpart, in which case the state conviction may not serve as a SORNA
predicate for tier-classification purposes.
Section 2A3.6 of the Sentencing Guidelines applies to offenses under the aggravated sentencing
provisions of 18 U.S.C. § 2250(d). Section 2A3.6 sets the guideline sentence at the minimum
(imprisonment for 5 years), but acknowledges that upward departure may be warranted in a
particular case.
Section 2A3.6 also supplies the sentencing guidance for a second offense whose existence may
help to explain why section 2259(d) is so infrequently invoked. Regardless of whether a sex
offender has failed to register, a sex offender who is required to register under federal or any other
law faces a sentencing enhancement of 10 years’ imprisonment, 18 U.S.C. § 2260A, when he
commits any of a list of sex offenses. Moreover, recidivist federal sex offenders face the prospect
of mandatory life imprisonment.
Supervised Release: Generally, when a court sentences a defendant to prison, it may also sentence
him to a term of supervised release. Supervised release is a parole-like regime under which a
defendant is subject to the oversight of a probation officer following his release from prison. The
term of supervised release for most crimes is either 1, 3, or 5 years depending on the severity of
the crime of conviction.
The statute and the Sentencing Guidelines establish an array of mandatory and discretionary
conditions for those on supervised release.
A sentencing court may also impose any condition from the statutory inventory of discretionary
conditions for probation. In addition, the Sentencing Guidelines specify thirteen “standard”
conditions; eight “special” conditions; and “additional” special conditions. Finally, the district
court may impose any “specific” condition that, like the other discretionary conditions, meets the
following statutory standards: “(1) is reasonably related to the factors set forth in section
3553(a)(1); (2) involves no greater deprivation of liberty than is reasonably necessary for the
purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and (3) is consistent with
any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C.
994(a).”
The court may modify the conditions of supervised release at any time. It may also revoke the
defendant’s supervised release and sentence him to prison for violating the conditions of
supervised release.
Constitutional Considerations
Much of the litigation relating to Section 2250 and SORNA involves constitutional challenges
taking one of two forms. One argues that SORNA or Section 2250 operates in a manner that 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 Section 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 laws before the enactment of SORNA. One addressed the Ex Post Facto
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Clause implications of sex offender registration, Smith v. Doe; the other addressed Due Process
Clause implications, Connecticut Department of Public Safety v. Doe.
Ex Post Facto
Neither the states nor the federal government may enact laws that operate Ex Post Facto. The
prohibition covers both statutes that outlaw conduct that was innocent when it occurred and
statutes that authorize imposition of a greater penalty for a crime than applied when the crime
occurred. 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.
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 in nature and effect, not punitive, and
consequently its retroactive application did not violate the Ex Post Facto Clause. Its analysis has
colored the lower federal courts’ treatment of Ex Post Facto challenges to Section 2250 and
SORNA. “Relying on Smith, circuit courts have consistently held that SORNA does not violate
the Ex Post Facto Clause,” with one apparently limited exception.
Due Process
The Supreme Court’s assessment of state sex offender registration statutes has been less
dispositive of due process issues because of the variety of circumstances in which they may arise.
Neither the federal nor state governments may deny a person of “life, liberty, or property, without
due process of law.” Due process requirements take many forms. They preclude punishment
without notice. They bar restraint of liberty or the enjoyment of property without an opportunity
to be heard. They proscribe any punishments or restrictions that are so fundamentally unfair as to
violate fundamental fairness, that is, substantive due process.
In Connecticut Dep’t 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. In Lambert v. California, the Court dealt with
sufficiency of notice. Since “by the time that Congress enacted SORNA, every state had a sex
offender registration law in place,” attempts to build on Lambert have been rejected, because the
courts concluded that offenders knew or should have known of their duty to register. Suggestions
that differences between state and federal requirements result in impermissible vagueness have
fared no better.
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.” Perhaps because the threshold is so high, Section 2250 and
SORNA have only infrequently been questioned on substantive due process grounds.
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.”
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
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leaving the state. The courts have responded, however, that the right must yield to compelling
state interest in the prevention of future sex offenses.
Cruel and Unusual Punishment
The Eighth Amendment bars the federal government from inflicting “cruel and unusual
punishment.” A punishment is cruel and unusual under the Eighth Amendment when it is grossly
disproportionate to the offense. Section 2250’s 10-year maximum has survived the claim that is
grossly disproportionate to the crime of failing to maintain current and accurate sex offender
registration information. The courts 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.
Legislative Authority
The most frequent constitutional challenge to SORNA and Section 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 Spending Clause, the
Commerce Clause, or the Necessary and Proper Clause. Others address contextual limitations on
the exercise of those powers imposed by such things as the non-delegation doctrine or the
principles of separation of powers reflected in the Tenth Amendment.
Tenth Amendment: The federal government enjoys only such authority as may be traced to the
Constitution; the Tenth Amendment reserves to the states and the people powers not vested in
federal government. Challengers of Congress’s legislative authority to enact SORNA, or the
Justice Department’s authority to prosecute failure to comply with its demands, on Tenth
Amendment grounds have had to overcome substantial obstacles. First, several of Congress’s
constitutional powers are far reaching and SORNA appears within their grasp. 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.
Second, although a particular statute may implicate the proper exercise of more than one
constitutional power, only one is necessary for constitutional purposes. Third, “while SORNA
imposes a duty on the sex offender to register, it nowhere imposes a requirement on the State to
accept such registration.” Finally, until recently some courts have held that individual defendants
lacked standing to contest the statutory validity on the basis of constitutional provisions 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 lacked 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. More specifically, at least two circuits had held
that defendants convicted under Section 2250 lacked standing to challenge their convictions on
Tenth Amendment grounds.
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.” In Reynolds, the Court implicitly recognized the defendant’s standing when, at his behest,
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it held that SORNA did not apply to pre-enactment convictions until after the Attorney General
had exercised his delegated authority. Yet, the fact that a defendant’s Tenth Amendment challenge
may be heard does not mean it will succeed.
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....” “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.” In the past, the Supreme Court has described the limits on Congress in general
terms:
[First,] the 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.
Moreover, at the end of its 2011 term in National Federation of Business v. Sebelius, seven
members of a divided Court found that the power of the Spending Clause may not be exercised to
coerce state participation in a federal program. 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.
SORNA establishes minimum standards for the state sex offender registries and authorizes the
Attorney General to enforce compliance by reducing by up to 10% the criminal justice assistance
funds a non-complying state would receive. 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. Generally, 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. 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 the directive, side of
the constitutional line. The fact that most states do not feel compelled to bring their systems into
full SORNA compliance may lend credence to that assessment.
Commerce Clause: “The Congress shall have Power ... To regulate Commerce with foreign
Nations, and among the several States, and with the Indian Tribes.” 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.
The lower federal appellate courts have rejected Commerce Clause attacks on Section 2250 in the
interstate travel cases, because there they believe Section 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].” They have also rejected Commerce Clause attacks
on SORNA in intrastate cases based on the strength of the Necessary and Proper Clause:
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SORNA: An Abridged Legal Analysis of 18 U.S.C. § 2250

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.
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
to initiate federal civil commitment proceedings for the sexually dangerous. 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.
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.” Moreover, be the chain clear and unbroken, the challenged
statute need not necessarily be directly linked to a constitutionally enumerated power. The
Comstock “statute [18 U.S.C. § 4248] 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.”
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 a Congress of the United
States.” This means that Congress “may not transfer to another branch ‘powers which are strictly
and exclusively legislative.’” 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. In Reynolds, the Supreme
Court read SORNA to “require[] the Attorney General to apply SORNA to all pre-Act offenders
as soon as feasible.” The question later in Gundy was whether “Congress ma[de] an
impermissible delegation when it instructed the Attorney General to apply SORNA’s registration
requirements to pre-Act offenders as soon as feasible?” For a majority of the Court, “under [the]
Court’s long-established law, that question is easy, its answer is no.” Similarly, the U.S. Court of
Appeals for the Second Circuit concluded “that the Secretary [of Defense]’s discretion in
designating certain military offenses as sex offenses under § 20911(5)(A)(iv) [of SORNA] has
been clearly and intelligibly limited by Congress.

Author Information

Charles Doyle

Senior Specialist in American Public Law

Congressional Research Service

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SORNA: An Abridged Legal Analysis of 18 U.S.C. § 2250

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Congressional Research Service
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