Another District Court Dismisses SORNA Indictment on Commerce Clause Grounds

In U.S. v. Valverde, the Eastern District of California held that Congress lacked the authority to enact SORNA because the Act could not be justified under by the Commerce Clause. This is how the order addressed the jurisdictional limitation of SORNA: 

... § 2250 does possess a purportedly jurisdictional element, as it penalizes a person who is required to register under SORNA and knowingly fails to do so or to update his or her registration and who travels in interstate commerce. In this way, unlike the statutes considered in Lopez and Morrison, the section limits the class of those who can be penalized to only those who have traveled in interstate commerce. The problem, however, is that this jurisdictional hook still creates a class that is too broad for Commerce Clause purposes. Under the statute, a person may be prosecuted for failing to register in his home state, then crossing state lines and registering in the next state. The harm, therefore, may be entirely intrastate. Were this a sufficient jurisdictional element, there would be no limit to Congress’s ability to penalize any crime whatsoever, so long as the defendant at some point in the course of his life traveled across state lines. This appears to be a plain usurpation of the state’s police power; as the Court expressed in Morrison, there is “no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.” 529 U.S. at 618. As such, the jurisdictional language in § 2250 cannot alone render the statute valid under the Commerce Clause.

I think this is the clearest statement yet by a court why 2250(a)(2) is insufficient to support Commerce Clause jurisdiction. With the opinion in Valverde, by my count there have been seven cases in which courts have issued opinions which have held that the crime of failure to register cannot be based upon Commerce Clause jurisdiction. The other six opinions are:

• United States v. Powers, 544 F.Supp.2d 1331 (M.D. Fla. 2008)
• United States v. Hilton-Thomas, 2009 U.S. Dist. LEXIS 1929 (S.D. Fla. 2009)
• United States v. Myers, 2008 U.S. Dist. LEXIS 99384 (S.D. Fla. 2008)
• United States v. Guzman, 582 F. Supp. 2d 305 (N.D.N.Y. 2008)
• United States v. Hall, 577 F. Supp. 2d 610 (N.D.N.Y. 2008). 
• United States v. Waybright, 561 F. Supp. 2d 1154 (D. Mont. 2008)

Subsequent to the original opinion in Hall, the court rejected the government’s motion for reconsideration. United States v. Hall, 2008 U.S. Dist. LEXIS 98343 (N.D.N.Y. 2008).

I think we have reached the point where a critical mass of courts have recognized that there are genuine Commerce Clause problems with the statute. While the majority have decided otherwise, I think this should give future district courts reason to support the defendant's argument regarding federal authority. As I have argued, the majority of courts have failed to adequately consider the Commerce Clause argument and are distorting the doctrine to hold against sex offenders. Now, it is just up to one appellate court to join this growing group of district courts.

As a side note, the opinion cites Wayne Logan's recent Ohio State Journal of Criminal Law article which shows that at least some courts are listening to scholars about the shortcomings of the AWA.