On this last post about Madera, I cover the Appellant's reply brief. Sadly, the reply brief doesn't make any new arguments in regards to the commerce clause. There are a lot of interesting arguments that you should check out for yourself. However, because the reply brief doesn't advance this argument further, I thought I'd pick up the ball and run with it. Based upon all the district court decisions and the way defendants are appealing, I can tell not many have subscribed to my particular views regarding the commerce clause and the SORNA provisions in the AWA. So, I thought I'd offer a different example to flesh out why I think the jurisdictional language of the statue is wholly inadequate.
Imagine a federal murder statute. It covers all murders in the U.S. It would normally run afoul of commerce clause problems because all murders do not have a nexus to interstate commerce. However, this particular statute is limited to those persons who had traveled in interstate commerce. So, a person moves from Wisconsin to Montana. Three months later he kills a man in Montana. The federal government tries to prosecute him under the new murder statute. The defendant argues that there is a commerce clause problem. Does the government have a good argument that the crime has a nexus to interstate commerce? I think not. The murder occurred after the move which was related to interstate commerce.
Similarly, the crime of failure to register is wholly unrelated to the previous travel using interstate commerce. A person can travel many times and not trigger the Act's requirements. A person's decision to move can potentially be done without using interstate commerce (ie walking across the border) - although this is certainly less likely. Interstate commerce is far in the background once a defendant fails to register according to the provisions of the AWA. It is the same as the hypothetical murder statute I outlined above.
The statute is even more troubling because it has no temporal limitation. While the AWA has a defacto temporal limitation by virtue of its registration time frame, other statutes are not similarly configured. If the court accepts the jurisdictional language of the AWA, it will be used in other statutes and federal authority will increase substantially.
This isn't the first time Congress has sloppily drafted commerce clause jurisdictional language. However, the court should draw a line in the sand and send it back to the legislator to fix. The alternative is an ever-increasing creep into the few remaining domains of criminal law that have not already been conquered by American commerce clause jurisprudence.
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