Some of you might remember an AWA case in Florida that I blogged about some time ago: People v. Madera. At the time, I remarked that, "I think to ignore Morrison and Lopez in its analysis puts the opinion on shaky ground." That proposition will be tested on April 10 when the appeal is being argued before the 11th Circuit. I think this case could make its way to the USSC (unless the Court decides to wait for a circuit split to form) because the statute really puts to the test substantial commerce clause questions. I'm going to do a 3-part series on the briefs in the case on today, tomorrow, and Wednesday. My focus will primarily be on the commerce clause arguments even though there are a lot of other interesting issues being litigated. In fact, the commerce clause argument is relatively de-emphasized, but I think it is the one that might ultimately get the USSC's attention (although there really are other important issues as well).
To start, here is the Appellant's brief. This is the entirety of the commerce clause argument in the initial brief:
The district court erred as a matter of law by determining that section 2250(a) did not, either on its face or as applied to Mr. Madera, violate the Commerce Clause. The failure to register statute, 18 U.S.C. § 2250(a), violates the Commerce Clause because it fails to establish a constitutionally sufficient relationship to the regulation of interstate commerce.
Section 2250(a)(2) includes a jurisdictional predicate based upon traveling in interstate commerce. See 18 U.S.C. § 2250(a)(2)(B). The penalty provisions of section 2250(a) are based upon an individual’s failure to comply with the registration requirement set forth in SORNA. The registration requirements of SORNA, however, do not have an adequate connection with interstate commerce and thus violates the Commerce Clause. See Jones v. United States, 529 U.S. 848, 859, 120 S. Ct. 1904, 1912 (2000) (vacating federal arson conviction due to insufficient nexus between the alleged criminal activity and interstate commerce); United States v. Morrison, 529 U.S. 598, 619, 120 S. Ct. 1740, 1754 (2000) (declaring unconstitutional a statute providing for a federal civil remedy for victims of certain crimes because, inter alia, it violated the Commerce Clause) ; United States v. Lopez, 514 U.S. 549, 551, 155 S. Ct. 1624, 1626 (1995) (holding as unconstitutional under the Commerce Clause a federal gun law because the law “neither regulate[d] a commercial activity nor contain[ed] a requirement that the possession be connected in any way to interstate commerce”).
Section 2250(a) specifies as an element of the offense that the “sex offender” must have traveled in “interstate commerce.” 18 U.S.C. § 2250(a). The statute does not, however, require that the sex offender travel in interstate commerce in furtherance of a crime that affects interstate commerce. See id. Thus, it is evident that the statute requires no jurisdiction nexus between interstate travels and a crime, or any effect on commerce for that matter. On its face and as applied to Mr. Madera, therefore, there is an insufficient nexus between Mr. Madera traveling from New York to Florida, and how that travel affected interstate commerce.
Because the statute fails to require that the individual traveled in interstate commerce with intent to commit a specified crime, it does not meet the requisite jurisdictional nexus to affect commerce. As such, the law is unconstitutional on its face and as applied to Mr. Madera.
This is relatively brief treatment of this argument, but it does make a crucial point. The Court has never held that anyone who travels through interstate commerce is subject to federal criminal regulation for conduct having nothing to do with interstate commerce. The Court's decision in Morrison makes clear that sex crimes do not fall under the purview of the federal government by their economic effects on interstate commerce. The statute does not regulate Madera's commerce or travel - it regulates his failure to register. This failure has NO nexus with interstate commerce. The fact that the statute includes an element to bootstrap commerce clause authority does not change the underlying point. Either the court should 1) find that the government failed to show Madera failed to travel in "interstate commerce"; or 2) that such travel does not give the government unlimited authority to regulate criminal conduct that does not have a nexus with interstate commerce.
Tomorrow, I'll cover the government's reply.
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