Ilya Somin added another post at Volokh Conspiracy to the discussion of whether the AWA registration provisions run afoul of the Commerce Clause after Raich:
In my earlier post on the federal district court decision striking down a part of the Adam Walsh Act as beyond Congress' powers under the Commerce Clause, I omitted a crucial additional reason why this legislation is valid under the Supreme Court's misguided 2005 decision in Gonzales v. Raich: According to Raich, virtually any interstate movement qualifies as "economic activity" that Congress can regulate at will....
Perhaps you think this is an indefensibly broad interpretation of Congress' Comerce Clause authority. If so, I agree with you completely. Unfortunately, the Supreme Court majority doesn't. I can only hope that they will rethink their position; or - more likely - that new appointees will take a more sensible view than the current justices. Until they do, however, the Adam Walsh Act is almost certainly valid under current precedent.
I don't have any more to add at this point. I'm going to be working more on this issue for my article this Summer. I will definitely integrate Somin and Kerr's insights into that work.
In my original post about the case, there were a couple comments which raised questions I wanted to answer. First, an anonymous poster asked:
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?
If the AWA actually prohibited travel, there would be genuine ex post facto worries. However, as currently written the AWA isn't appreciably different than various state registration laws across the nation which courts have held to not be ex post facto violations.
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.
The delegation issue is a complicated one and is just beginning to be litigated. I know very little about that area of law, but I'll definitely try to include a discussion of delegation issues in future case posts.
Thanks for the great questions.