What Does Comstock Mean for SORNA?

With the 4th Circuit's opinion in Comstock striking down part of the AWA on Commerce Clause grounds, a logical question is whether the decision has any relevance as to other parts of the AWA, mainly SORNA. In a recent 4th Circuit argument, that seems to have been the focus:

At arguments before the 4th Circuit today in Richmond, Va., appellant Brian L. Gould’s lawyer also is expected to raise a Commerce Clause argument against the Sexual Offender Registration and Notification Act, which Congress passed as part of the Walsh Act in 2006. 

“If this interpretation of [the Sexual Offender Registration and Notification Act] is accepted, the Act lies beyond Congress’s authority under the Commerce Clause,” the attorney, assistant federal public defender Paresh S. Patel, wrote in a letter to the 4th Circuit earlier this month. “Comstock leaves no room for this Court to find that SORNA’s registration requirement is authorized under the Commerce Clause....”

U.S. Attorney Rod J. Rosenstein said Tuesday that he expects the 4th Circuit to side with the government. 

“It’s an important case because the defendant is challenging the constitutionality of the Sexual Offender Registration and Notification Act,” said Rosenstein, who will argue the case personally. “Challenges to SORNA have been filed all over the country and so far, most courts and, in fact, all of the appellate courts that have ruled on it have upheld the statute.” 

Rosenstein, like Patel, addressed Comstock in a letter to the court. Registration laws, unlike civil commitment laws, do affect interstate commerce, he wrote. 

The registration provision is “distinguishable from civil commitment because it is part of a comprehensive national program to track the interstate movement of sex offenders and maintain an accurate nationwide database accessible over the internet,” Rosenstein wrote.  

I haven't read the briefs in the case, but my inclination is that the government has the better argument with one large caveat. 

To start, I think the government is wrong to group together the interstate commerce effects of the national registry with the crime of failing to register because those portions of the AWA are different and can exist without the other one. The point is painfully clear because the national registry does not yet exist and SORNA prosecutions are occurring across the country. So, it seems a mistake to give the government the benefit of the alleged interstate commerce effects associated solely with the national registry.

However, for 2250(a)(2) prosecutions, there is an important difference in comparison to the statute at issue in Comstock: there is a jurisdictional limitation in 2250(a)(2). I have argued that the jurisdictional limitation is insufficient and that 2250(a)(2) is not supported by the Commerce Clause, but I do not believe Comstock dictates that outcome. Courts can and should easily distinguish the two provisions.

The one caveat I mentioned would be for the less common prosecutions under 2250(a)(1). That subsection has no jurisdictional language and essentially applies to persons with federal sex offense convictions. The analogy to Comstock seems much stronger. Both provisions rely on the argument that once you are in federal control, such control provides future jurisidction. The government used the Necesssary and Proper Clause to make that argument and Comstock which didn't make a lot of sense. And the Commerce Clause rationale similarly failed. I think a 2250(a)(1) prosecution should fail for the same reasons as a 4248 commitment as was the case in Comstock.