In contrast to the holdings in the Tenth Circuit, Judge Zloch, in U.S. v. Myers, held that a prosecution under SORNA for failing to register was an unlawful extension of Commerce Clause authority. I was delighted to see the court really took seriously the problems with SORNA under Morrison and Lopez. The opinion weighs in at a hefty eighty-two pages. Here is a key passage distinguishing the USSC's holding in Raich:
In contrast to the CSA, SORNA is not a comprehensive economic regulation of an interstate market. Waybright, 561 F. Supp.2d at 1166-67. To be clear, SORNA is comprehensive. It includes provisions governing the national registry requirements for individuals, the duration of the registration requirements, the requirement of registration for sex offenders entering the country, and consequences of states failing to comply with the statute. 42 U.S.C. §§ 16913-16915, 1625-1628. However, the stated purpose of SORNA is to establish a national sex offender registry to “protect the public from sex offenders and offenders against children.” 42 U.S.C. § 16901. This is not economic. See Raich, 545 U.S. at 25-26 (defining “economics” as the “production, distribution, and consumption of commodities”) (citation omitted).
Similarly, the Adam Walsh Act is a statute with broad reach into many areas. While SORNA regulates only sex offenders, other areas regulated by the Adam Walsh Act involve interstate commerce, including Title V (Child Pornography); Title II, § 201 (Prohibition On Internet Sales of Date Rape Drugs); and Title VII (Internet Safety). See Maxwell, 446 F.3d at 1216-17 (finding a market for child pornography and upholding congressional regulation of same); United States v. Hornaday, 392 F.3d 1306, 1310-11 (11th Cir. 2004) (upholding congressional regulation of the internet under the Commerce Clause). Thus, under the analysis employed in Lopez, it appears that, like the GFSZA that was a subpart of the Crime Control Act of 1990, SORNA should be analyzed without reference to the greater scheme of the Adam Walsh Act. Because § 16913 cannot be upheld as part of SORNA, as stated above, the Indictment herein must be set aside. However, without the benefit of guidance from a reviewing court on this issue, the Court now turns to analyzing § 16193 as part of the Adam Walsh Act in general.