In U.S. v. George, the 9th Circuit rejected the constitutional challenges to a SORNA prosecution. You can download the opinion here. The Commerce Clause analysis by the court was particularly disappointing:
SORNA was enacted to keep track of sex offenders through interstate movement. Such offenders are required to “register, and keep registration current, in each jurisdiction” where the offender lives, works, or goes to school. 42 U.S.C. § 16913(a). As stated by the Eighth Circuit, “[t]his language indicates Congress wanted registration to track the movement of sex offenders through different jurisdictions.” United States v. Howell, 552 F.3d 709, 716 (8th Cir. 2009). “Under § 2250, Congress limited the enforcement of the registration requirement to only those sex offenders who were either convicted of a federal sex offense or who move in interstate commerce.” Id. (citing 18 U.S.C. § 2250(a)(2)). The requirements of § 16913 are reasonably aimed at “regulating persons or things in interstate commerce and the use of the channels of interstate commerce.” Id. at 717 (quoting United States v. May, 535 F.3d 912, 921 (8th Cir. 2008)) (quotation marks omitted). Congress had the power under its broad commerce clause authority to enact the SORNA.
Other than a minor issue of whether George had pleaded guilty to (A) or (B), the above excerpt is the entirety of the court's reasoning on the Commerce Clause issue. It relies entirely on the 8th Circuit reasoning with no discussion of the counterarguments. Since I read the briefs in the case (which were quite good), the court really did a disservice to the defense in not even addressing the finer distinctions in the Commerce Clause analysis. It looks like a Circuit split might never develop in regards to SORNA. Certainly if the Court upholds the civil commitment portions of the AWA in Comstock, then no Commerce Clause challenge to SORNA will likely ever succeed.
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