More on the Powers Case

Ilya Somin added another post at Volokh Conspiracy to the discussion of whether the AWA registration provisions run afoul of the Commerce Clause after Raich:

In my earlier post on the federal district court decision striking down a part of the Adam Walsh Act as beyond Congress' powers under the Commerce Clause, I omitted a crucial additional reason why this legislation is valid under the Supreme Court's misguided 2005 decision in Gonzales v. Raich: According to Raich, virtually any interstate movement qualifies as "economic activity" that Congress can regulate at will....

Perhaps you think this is an indefensibly broad interpretation of Congress' Comerce Clause authority. If so, I agree with you completely. Unfortunately, the Supreme Court majority doesn't. I can only hope that they will rethink their position; or - more likely - that new appointees will take a more sensible view than the current justices. Until they do, however, the Adam Walsh Act is almost certainly valid under current precedent.

I don't have any more to add at this point.  I'm going to be working more on this issue for my article this Summer. I will definitely integrate Somin and Kerr's insights into that work.

In my original post about the case, there were a couple comments which raised questions I wanted to answer.  First, an anonymous poster asked:

A probationer or parolee can already be so barred from travel, but how can someone no longer on probation or parole be barred from interstate travel without violating the ex post facto clause? And it's not clear on what constitutional basis a federal law banning travel would rest on. Isn't travel a constitutionally protected right and wouldn't such a law require strict scrutiny analysis? Then, if so, could it survive that analysis?

If the AWA actually prohibited travel, there would be genuine ex post facto worries. However, as currently written the AWA isn't appreciably different than various state registration laws across the nation which courts have held to not be ex post facto violations.

jjoe asked:

How is the government getting around the fact that the SORNA regulations have yet to be approved by the DOJ, and that Gonzales, not Congress, mandated those restrictions? The AG's delegated authority has its limitations.

The delegation issue is a complicated one and is just beginning to be litigated. I know very little about that area of law, but I'll definitely try to include a discussion of delegation issues in future case posts.

Thanks for the great questions.

Comments

[George]

What about proper notice of the FEDERAL crime under LAMBERT V. CALIFORNIA, 355 U. S. 225 (1957)? Though subsequent opinions narrowed Lambert that was because of distinguishable facts which would not be distinguishable under the AWA.

"But we deal here with conduct that is wholly passive -- mere failure to register. It is unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed." Cf. Shevlin-Carpenter Co. v. Minnesota, 218 U. S. 57; United States v. Balint, 258 U. S. 250; United States v. Dotterweich, 320 U. S. 277, 284.

I'm searching for a nexus between Lambert and interstate travel registration of any sort. Since Lambert lived in California and did not move into the state, it doesn't fully apply.

[George]

No, it looks like a dead end. see UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
____________________
No. 97-1523

UNITED STATES,
Appellee,

v.

GILBERT A. ROBINSON,
Defendant - Appellant.

It eviscerates both the notice issue and the commerce clause issue and the opinion could be easily extended to the AWA and registration.

The Lambert exception does not apply to the instant case. Child pornography offends the moral sensibility of the community at large. Indeed, "the child pornography laws are directly related to [this] commonly understood moral censure." United States v. Moncini, 882 F.2d 401, 406 (9th Cir. 1989). The fact that these criminal laws are consistent with community moral standards ensures the probability of notice. "The very nature of child pornography, which is commonly regulated throughout the world, should cause a reasonable person to investigate the laws . . . ." Id. Consequently, Robinson may be expected to be aware of adjustments in the law, including the enactment of § 2252(a)(4)(B). Despite Robinson's arguments to the contrary, the instant case is akin to cases involving inherently dangerous or deleterious products where the "probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation." United States v. International Minerals & Chem. Corp., 402 U.S. 558, 565 (1971) (upholding conviction for shipment of industrial acids without including warning labels as required by federal law); see also United States v. Freed, 401 U.S. 601 (1971) (possession of unregistered hand grenades).

There goes Lambert.

Section 2252(a)(4)(B), in contrast to the GFSZA, contains an explicit jurisdictional element requiring that the visual depictions in question, or the materials used to create such depictions, be "mailed, . . . shipped or transported in interstate or foreign commerce . . . ." 18 U.S.C. § 2252(a)(4)(B). The jurisdictional element in § 2252(a)(4)(B) requires an answer on a case-by-case basis to the question whether the particular possession of child pornography affected interstate commerce.

If MAILED is the same as TRAVELS or TRAVELED, there goes the commerce clause argument. After all, we're talking live hand grenades here in the shape of humans.