Academic

US District Judge Rules SORNA is Outside the Commerce Clause

By Calvin Massey

   U.S. District Judge Lawrence Karlton (E.D. California) ruled that the portion of the Sex Offender Registration and Notification Act which criminalizes interstate movement of unregistered sex offenders is beyond Congress's commerce power.  A Sacramento Bee news article  summarizes the case.  Here is Judge Karlton's opinion.  42 USC 16913, a part of the Adam Walsh Child Protection and Safety Act of 2006, requires sex offenders to register as such.  18 USC 2250 enforces this provision by making it a crime for a sex offender to travel interstate without having registered as such or updating the registration.  Judge Karlton concluded that 

[Section] 2250 ... penalizes a person who is required to register under SORNA and knowingly fails to do so or to update his or her registration and who travels in interstate commerce. [U]nlike the statutes considered in Lopez and Morrison, the section limits the class of those who can be penalized to only those who have traveled in interstate commerce. The problem, however, is that this jurisdictional hook still creates a class that is too broad for Commerce Clause purposes. Under the statute, a person may be prosecuted for failing to register in his home state, then crossing state lines and registering in the next state. The harm, therefore, may be entirely intrastate. Were this a sufficient jurisdictional element, there would be no limit to Congress?s ability to penalize any crime whatsoever, so long as the defendant at some point in the course of his life traveled across state lines. [The] jurisdictional language in [Section] 2250 cannot alone render the statute valid under the Commerce Clause.

Judge Karlton distinguished Wickard and Raich on the ground that they "dealt with intrastate regulation of economic commodities that exist as part of a national market," and that these cases are only "minimally instructive when noneconomic activity is at issue."  Because neither SORNA nor the Adam Walsh Act "in any way implicates a national commercial market," neither the rationale employed by the Raich majority nor by Justice Scalia in his concurrence were applicable.  The Raich majority concluded that the intrastate noncommercial activity could be regulated because the aggregate of the activity had a substantial effect on interstate commerce.  Justice Scalia argued that intrastate noncommercial activity can be regulated if it is an integral part of a broader regulatory scheme that substantially affects interstate commerce.   

Other courts and at least two circuits disagree with Judge Karlton.  The government intends to appeal Judge Karlton's ruling to the Ninth Circuit.  Here's hoping the government loses that appeal. 

Full post as published by The Faculty Lounge on February 15, 2009 (boomark / email).