As previously mentioned in a couple of previous posts, a district court in Montana struck down the AWA's registration provisions on Commerce Clause grounds. Sentencing Law & Policy has graciously uploaded the opinion and I finally had a chance to read it. Here are some of the interesting details regarding the Commerce Clause analysis (the excerpted section is quite long to give a full flavor of the argument):
Waybright argues Congress exceeded its power under the Commerce Clause by enacting two specific provisions of SORNA—18 U.S.C. § 2250(a) and 42 U.S.C. § 16913. Section 2250(a) creates a federal offense where an individual (1) is required to register under SORNA; (2) travels in interstate commerce; and (3) knowingly fails to register or update a registration as required by SORNA. Section 16913 imposes registration requirements on all sex offenders in the United States regardless of whether they travel in interstate commerce....
Although § 2250(a) contains a jurisdictional element requiring a sex offender to travel in interstate commerce, Waybright maintains this element is insufficient to bring the Act within Congress’ Commerce Clause power because the Act does not relate the purpose of the travel to the failure to register. Waybright further notes § 2250(a) does not specify when the travel must have occurred. According to Waybright, upholding § 2250(a) without requiring a temporal connection between the travel and failure to register would allow Congress to federalize nearly any local criminal offense simply by making it a crime for someone who committed the offense to travel in interstate commerce at some point in his life....
Waybright’s assertion that § 2250(a) does not require sex offenders’ interstate travel to be linked to their failure to register is accurate. The statute does not, for example, require sex offenders to cross state lines for the purpose of evading registration laws. It is thus distinguishable from other federal criminal statutes that have been upheld against constitutional challenges based on their requirement of a direct link between the criminal act and travel in interstate commerce....
Section 2250(a)’s failure to require a connection between the jurisdictional element of travel and the criminal act of failing to register, however, is not fatal. As an initial matter, the Supreme Court’s formulation of the second category of activity subject to regulation under the Commerce Clause explicitly includes the activity criminalized by § 2250(a). Under this category, Congress may regulate “persons . . . in interstate commerce, even though the threat may come only from intrastate activities.” Lopez, 514 U.S. at 558. This language encompasses § 2250(a) because the statute regulates sex offenders who travel in interstate commerce even though the threat Congress was attempting to address—failure to register as a sex offender—is an intrastate activity....
Waybright asserts, even if § 2250(a) is a valid exercise of Congress’ Commerce Clause power, he cannot be convicted under the statute because he should not have been required to register under § 16913 in the first place....
Unlike § 2250(a), its requirements are not limited to only those sex offenders who travel in interstate commerce. By its terms, § 16913 does not regulate the use of the channels of interstate commerce or the instrumentalities of interstate commerce. Therefore, it cannot be upheld under either of the first two categories of activity subject to regulation under the Commerce Clause. Instead, if it is to be sustained under the Commerce Clause it must fall within the third Lopez category, i.e., regulation of “activities that substantially affect interstate commerce.”6 514 U.S. at 558.
The court's reasoning is fascinating in how different it is than the court's opinion in Powers. In Powers, the district court found section 2250(a) to be an unconstitutional exercise of constitutional power by Congress. I have argued in support of the Powers opinion on this ground. However, the court here in Waybright concludes that, under Lopez, Congress is free to regulate "persons ... in interstate commerce" including sex offenders who don't register. This fits 2250(a) under a different Lopez category than the nexus argument upon which I have focused.
Nonetheless, the court in Waybright finds the statute unconstitutional because section 16913 does not have any jurisdictional limitation. Thus, the statute is not supported by the Commerce Clause.
I have to admit that I'm a bit confused on the court's distinction between 2250(a) and 16913. The focus seems to be that 16913 does not have a jurisdictional limitation. However, the court found that the 2250(a) limitation was defective. If the Lopez "persons" category makes the defective 2250(a) jurisdictional limitation irrelevant, why does it not accomplish the same feat in regards to 16913? After all, just like 2250(a), 16913 concerns persons traveling in interstate commerce.
So, while I agree with outcome, I am struggling to put together the reasoning of the court in this opinion. I think the court could have made a strong argument that the Lopez "persons" category doesn't apply because it really isn't the case that persons in interstate commerce are being regulated - it is actually actions subsequent to travel at some later date that are being punished. Still, this decision will force a circuit court to deal with yet another wrinkle in this complex discussion of the Commerce Clause in regards to the AWA's registration provisions.
Maybe I'm not reading it correctly, but the opinion seems to say that 2250(a) would be constitutional if 16913 were constitutional, but since 16913 is not constitutional, because it makes a federal law of a state crime when there is no interstate travel, it exceeds Congress's power. Allowing it would allow every state crime to become federal because of the potential of interstate travel even if interstate travel is not an element of the crime. In other words, 16913 makes a federal crime of failure to register even if the offender never left the state. No can do, so the whole thing tumbles down as written because 2250(a) is predicated on 16913, and 16913 applies to those who never leave a state. Hence, 16913 is unconstitutional, which nullifies 2250(a) because 2250(a) cannot be prosecuted as failure to register as required by 16913.
Posted by: George | June 19, 2008 at 01:48 AM
Hi George,
I think you are exactly right. My problem is that the Court finds the 2250(a) jurisdictional limitation language defective. Yet, the Lopez category of "persons" makes 2250(a) constitutional (on its own terms). Since 16913 arguably has no jurisdictional language, why doesn't result in the same conclusion? Is there a difference between insufficiently limited jurisdiction and unlimited jurisdiction? This is the portion of the opinion that is most confusing to me:
"Section 2250(a)’s failure to require a connection between the jurisdictional element of travel and the criminal act of failing to register, however, is not fatal. As an initial matter, the Supreme Court’s formulation of the second category of activity subject to regulation under the Commerce Clause explicitly includes the activity criminalized by § 2250(a)."
Couldn't you just substitute 16913 for 2250(a) and reach the same conclusion?
Corey
Posted by: Corey Rayburn Yung | June 19, 2008 at 10:59 PM
More or less guessing here, but doesn't the Court make the distinction on p 17 dealing with 16193?
Unlike § 2250(a), its requirements are not limited to only those
sex offenders who travel in interstate commerce. By its terms, §
16913 does not regulate the use of the channels of interstate
commerce or the instrumentalities of interstate commerce.
Therefore, it cannot be upheld under either of the first two
categories of activity subject to regulation under the Commerce
Clause. Instead, if it is to be sustained under the Commerce
Clause it must fall within the third Lopez category, i.e.,
regulation of “activities that substantially affect interstate
commerce.”6 514 U.S. at 558.
So the Court apparently does not find 16913 and 2250 (a) are equal. It is the portions of 2250 (a) that require registration that brings it down, but now your question is clearer. Why isn't 2250 (a) (1) unconstitutional itself? ("is required to register under the Sex Offender Registration and Notification Act;")
Isn't the Court saying that subsection is unconstitutional? That seems to be so. Or, put another way, if 16193 is unconditional, why isn't 2250 (a) (1) also unconstitutional?
Is the Court saying that it is?
The intuitive objection to the expansion of these laws is the regulation of status, like an illegal alien, and the "in custody" similarities, like someone on probation or parole. Indeed, the ex post facto regulations, though civil, are often more "in custody" than actual probation and reach far further than the mere notification of public facts that the SCOTUS approved. Has anyone approached it from that angle?
Posted by: George | June 20, 2008 at 10:49 AM
unconditional = unconstitutional
Posted by: George | June 20, 2008 at 10:56 AM
Regarding status, compare Clark v. Martinez, 125 S. Ct. 716 (2005):
" Even if the statutory purpose and constitutional concerns influencing the Zadvy-
das construction are not present for inadmissible aliens, that cannot
justify giving the same statutory text a different meaning depending
on the characteristics of the aliens involved. Crowell v. Benson, 285
U. S. 22, Raygor v. Regents of Univ. of Minn., 534 U. S. 533, and
Jinks v. Richland County, 538 U. S. 456, distinguished."
Summary in pdf
http://www.law.harvard.edu/students/orgs/crcl/vol40_2/rodriguez.pdf
While the opinion may rest on statutory construction, it also invites a potential comparison with aliens "on parole" by the government in relation to being "in custody."
Posted by: George | June 20, 2008 at 12:15 PM
I agree that the Court thinks 16913 and 2250(a) are different. The part I'm missing is why. As you note, the stated reason is "By its terms, § 16913 does not regulate the use of the channels of interstate commerce or the instrumentalities of interstate commerce." That's reasonable enough. However, the court had just found that "Waybright’s assertion that § 2250(a) does not require sex offenders’ interstate travel to be linked to their failure to register is accurate. The statute does not, for example, require sex offenders to cross state lines for the purpose of evading registration laws. It is thus distinguishable from other federal criminal statutes that have been upheld against constitutional challenges based on their requirement of a direct link between the criminal act and travel in interstate commerce."
So, what is the distinction with a difference? I'd be fine if the court found 16913 and 2250(a) unconstitutional for the same reason. And I'd be happy if the court found them constitutional for the same reason. I'd even be satisfied if the court found the 2250(a) jurisdictional language adequate, but didn't find the jurisdictional language of 16913 sufficient. I just don't see that the court has elucidated an important difference between the two statutes in terms of applying Lopez once it finds 2250(a) has defective jurisdictional limits but is still constitutional. That doesn't mean there isn't a difference - it just means the court left some ambiguity about how to resolve two of its findings.
Posted by: Corey Rayburn Yung | June 20, 2008 at 01:39 PM