Florida District Court Strikes Down Registry Provisions of AWA on Commerce Clause Grounds

I never blog on weekends, but since everyone else is beating me to the punch on a big story that I was going to blog about on Monday, I had to chime in.  The title of the post says it all, but here is the link to the full opinion in United States v. Powers.  These were Doug Berman's initial thoughts:

The government will surely appeal this ruling, and I know some other district courts have already upheld the constitutionality of these provisions of the AWA.  It will only be a matter of time before we get some circuit law (and perhaps some circuit splits) on the reach and application of the AWA.  Stay tuned.

I'm a little more optimistic in this case than I often am regarding sex offender law decisions. No court has ever considered whether the jurisdictional language of the AWA is limited enough to survive constitutional scrutiny. Now that Judge Presnell has addressed the issue, I wouldn't be surprised if other courts follow his lead.  This issue is also now properly before the ongoing 11th Circuit appeal in US v. Madera.

Orin Kerr at Volokh Conspiracy wonders if this decision can be squared with existing Commerce Clause precedent:

I am not a Commerce Clause expert, but isn't this pretty clearly wrong under prevailing precedents? I have no views about the merits of this law, but it seems to me that the law pretty directly regulates traveling in interstate commerce: Specifically, it directly prohibits such traveling by state sex offenders who have not registered.

  Judge Presnell works around this by quarantining the "travel in interstate commerce" requirement and then asking whether the leftover condition on traveling in interstate commerce itself affects interstate commerce. But I don't think you can do that. The issue is whether Congress is regulating interstate commerce, not whether its chosen criteria for regulating interstate commerce themselves have an independent nexus to interstate commerce.

As I have been trumpeting for some time the argument that Judge Presnell made, I think Kerr's intuition is wrong on this one. I will have a lot more on this topic this summer as this an important portion of an article I am writing about the AWA that I will submit to journals in August. To counter Kerr's suspicion, I would point out that the law doesn't actually regulate a sex offender traveling in interstate commerce. In fact, an offender is free to travel between states at will. A law that barred such travel altogether would certainly survive a Commerce Clause challenge. However, the AWA is not that law.

The crime in this case is a failure to register. That the failure to register only occurs upon the change of interstate residence is not the same thing as actually regulating interstate commerce (although I don't think the Court has ever actually addressed this issue). This is not a case where there is an actual economic good as there was in Raich. So, I'm not sure what precedent Kerr thinks the Presnell opinion is at odds with (although Kerr stated he is not an expert in this area). 

I think if the registration portions of the AWA are upheld on Commerce Clause grounds, then I do not see why Congress could not pass laws as follows:

• Any person who moves between states and commits a murder in a new state is subject to federal prosecution.
• Any person who maintains residences in two states is subject to federal prosecution for any theft, murder, assault, or battery that he or she commits wholly within one state.
• Any person who uses an airline, bus, or other commercial carrier to travel between states and commits a theft within six months in a state other than their state of residence is subject to federal prosecution

One might think that a failure to register is more intimately tied to interstate commerce (and I think this is a tougher argument). However, given the broad language Congress used to define the jurisdiction of the AWA, I don't see how any of my hypotheticals above wouldn't be allowed by using the same jurisdictional language as has been used by the AWA. And the USSC has given no guidance on the scope of such language in statutes as far as I know. So, I think Judge Presnell's holding doesn't run afoul of any prior precedents and I actually think the USSC will ultimately rule in line with Presnell's thinking on the issue.

Update: Ilya Somin at Volokh Conspiracy has added a new post and he, like Orin, thinks Judge Presnell is out to lunch on this one.  That is also the popular view among comments to Orin's post (in which I have participated).  I'm excited to see this issue is being discussed, but obviously I seem to be taking a distinctively minority view. Here is a portion of Somin's thoughts:

That said, I think Orin is right that the decision is inconsistent with current Supreme Court precedent. In particular, it virtually ignores the Court's 2005 decision in Gonzales v. Raich, which, as I argued in this article, almost completely eviscerates any judicially enforceable limits on Congress' Commerce Clause authority.

The most glaring of the district court's omissions is its failure to recognize that Raich reinstated the so-called "rational basis" test for determining whether a federal law regulates interstate commerce or not. That is, the Court held that the feds need only show that Congress might have had a "rational basis" for believing that the activity regulated by the law has, in the aggregate, a "substantial effect" on interstate commerce. As first year constitutional students know, almost any non-moronic conjecture is enough to satisfy the rational basis test. At the very least, the District Court should have applied the rational basis test and explained exactly why the Walsh Act's registration requirements fail it despite its extremely deferential nature. This it conspicuously fails to do.

Second, the district court claims that the Walsh Act must have a clear and relatively stringent "jurisdictional element" limiting its scope to cases connected to interstate commerce. The lack of a jurisdictional element was indeed one factor cited by the Supreme Court in striking down federal statutes on Commerce Clause grounds in United States v. Lopez and United States v. Morrison. However, the Court has never required the presence of a jurisdictional element, and indeed the law upheld in Raich did not have any more stringent a jurisdictional element than the Walsh Act.

Third, the court too easily dismisses in one conclusory line the possibility that the Walsh Act might be a regulation of the "channels and instrumentalities of interstate commerce" (which the Supremes have consistently said Congress can regulate). By preventing sex offenders from traveling interstate without first meeting the the registration requirement, the Act does indeed restrict who can use the interstate transportation systems that surely count as "channels and instrumentalities of interstate commerce."

Comments

Mr. Yung, I've been looking forward to your thoughts on this opinion since it has been your view all along. A question. You write: "A law that barred such travel altogether would certainly survive a Commerce Clause challenge. However, the AWA is not that law."

A probationer or parolee can already be so barred from travel, but how can someone no longer on probation or parole be barred from interstate travel without violating the ex post facto clause? And it's not clear on what constitutional basis a federal law banning travel would rest on. Isn't travel a constitutionally protected right and wouldn't such a law require strict scrutiny analysis? Then, if so, could it survive that analysis?

[jjoe]

How is the government getting around the fact that the SORNA regulations have yet to be approved by the DOJ, and that Gonzales, not Congress, mandated those restrictions? The AG's delegated authority has its limitations.

[HelpMeIfYouCan]

some states may require me to register as a sex offender. the state i live in does not require me to register as they do not register non-violent misdemeanors which occurred with adults. Florida always said i have strict guidelines if i visit that state. if i now travel to or thru florida do i need to register after this new finding??

[HelpMeIfYouCan]

why is it that Foley in Florida has put together most of the sex offender laws and yet when this Pedophile Foley gets caught enticing a minor online he does not even have to register or is not even charged?? yet my nonviolent misdemeanor which occurred with an adult is registrable under pedophile Foleys laws?? How could we have to comply with these laws when we now have found out that the creator of these harsh laws was a pedophile himself?? what a croc.
Florida just accepts any states designation for a sex offense even if it is not equivalent to a FLorida sex offense. this means they will now put mooning, streaking, nude sunbathing, indecent exposure (being caugt naked) and urinating in public on their registries if those convictions come from antoher state. My incident would not even have been a sex offense or a registrable offense if committed in Florida. I thought all were equal in the eyes of the law? why does someone in FLorida who commits the same offense not have to register?? i think they should make it fair and the same for all sex offenders.

[steve]

Helpme,

You are guilty, no matter what. It doesn't matter, the all seeing eye which is the Congress will make you submit and then post your photo for all to see. You wear the scarlett letter, and nothing can change that. Sexual assault or streaking, it doesn't matter. what matters is that the minority has spoken and stripped your rights that were those of the US citizentry.

The Law and rules regarding sex offenders, no matter what the cost will forever brand us to shame. You should have murdered someone, atleast you could have gotten manslaughter and did 5 to 15 then you would be walking the streets today unencumbered.

However that is not the case, States have passed the laws, more and more restrictive, stripping our liberties, our names, our citizenship to the tune of votes and back clapping. But if one of their own gets caught, silently it is swept away, to be forgotten. How many remember Mr. Hatchs' love of underage pages? or the countless other acts that are kindly disregarded in the good ole boy system so entrenched within the hallowed halls.

Wait, can you feel it? That is the founding fathers turning in their graves.