Southern District of Florida Dismisses SORNA Indictment on Commerce Clause Grounds

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).

Perhaps throwing a jab at courts that haven't noticed that 2250(a) prosecutions cannot be supported on Commerce Clause grounds by looking at the entire AWA, Judge Zloch offered this nice explanation:

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.

Ultimately, though, the court in Myers follows the lead of the decision in Waybright (and not Powers) by finding the constitutional defect in 16193, not 2250(a) in its approach to reviewing 16913. While I have been clear that I think 2250(a) does not resolve the Commerce Clause problems, it does seem easier for courts to pick on 16193 (which contains no jurisdictional limitation). (Update: As noted in the comments, I should have been clear, 2250(a) presents Commerce Clause problems as well - it's just that the district court more closely mirrored the Waybright approach). I highly recommend reading through the opinion for anyone interested in SORNA. There is a lot of thought in it and I think it pushes the ball forward for courts discussing these complicated issues.

From a personal standpoint, I was happy to see my forthcoming article made its way into the opinion. It is nice to think that at least one court out there was listening. I hope more follow the lead of Judge Zloch. It certainly adds more grist to the mill as the 11th Circuit will soon hear oral arguments in Powers.

Comments

[lawdoc]

It is interesting how everyone needs to first show their distaste for sex offenders as a prologue to any opinion. This court opinion starts out no differently.

"Sex offenders have undermined the decency once assumed in our fellow man and made us think twice before sending our children and grandchildren outside
for a day of carefree play; they have paralyzed our families with
fear."

It is more likely that sex offenders have always been here. What is new is the irrational and disproportionate panic that now grips this country. The judge sounds like he likes history. His opinion includes about three dozen pages of it. You would think he would have tried to be historically accurate with the narrative portion of the opinion, and not just the constitutional law.

"In response to the growing incidences of convicted sex offenders perpetrating further sexual assaults, particularly against minors, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act."

Actually, sex crimes had started to trend downwards at the time the act was passed. Perception was different from reality.

"Over the decade that followed passage of the Jacob WetterlingAct, crimes against minors became increasingly heinous and prevalent, and in response, Congress passed the Adam Walsh Child Protection and Safety Act of 2006."

Sex crimes continued to decline during this period. Media reporting and politcalization of sex crimes might have increased, but sex crimes declined.

"The Court in Waybright was correct, there is no market for sex offenders"

I think the judge may have overlooked how much money can be made by selling data on criminals. The sex offender registry does have some value. Several companies will sell the compiled information even though it is freely available.

In any event, someone finally remembered that Congressional power is limited. It makes for a long but interesting read.

[Freight]

I think a big clarification is needed in reference to the main post's statement that "the court in Myers follows the lead of the decision in Waybright (and not Powers) by finding the constitutional defect in 16193, not 2250(a)." Actually, J. Zloch soundly denounced both 16913 and 2250 as ultra vires. The whole "history" section in the beginning is relevant only for 2250 because, as Professor Yung notes, "it does seem easier for courts to pick on 16193 (which contains no jurisdictional limitation)."

Plus, if that wasn't enough, didn't he explicitly say "for reasons other than those expressed in Powers and Waybright, the Court finds that both sec. 16913 and sec. 2250 exceed Congress’s grant of authority under the Commerce Clause"?

[Corey Rayburn Yung]

Freight,

That's a very good point and I should have been more precise there. I was referring to this section of the opinion when describing the deviation from the Powers approach:

Upon careful review of the text of § 2250 and the governing caselaw, the Court is unpersuaded by the reasoning either of Powers or those courts that have read the statute as a permissible regulation of persons in interstate commerce. Contrary to the holding in Powers, § 2250 purports to regulate persons designated as sex offenders who “travel[] in interstate or foreign commerce.” 18 U.S.C. § 2250(a)(1)(B). Courts operate with the understanding that Congress is capable of saying what it wants and meaning what it says. CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1222 (11th Cir. 2001). The phrase “in interstate commerce” is a term of art that Congress employs when it uses its power under the first two categories identified in Lopez. United States v. Ballinger, 395 F.3d 1218, 1227 (11th Cir. 2005) (en banc); Thomas, 534 F. Supp. 2d at 918. By limiting § 2250 to sex offenders who have traveled in interstate commerce, the regulation contained in § 2250 must be contemplated within Congress’s traditional authority over interstate commerce. If the regulation lies beyond the traditional limits attached to this power, § 2250 cannot be up held as constitutional.

I'll amend my post to clarify. Thanks.

CRY