Congress Has No Power to Regulate Traveling in Interstate Commerce By Unregistered Sex Offenders, District Court Judge Holds:
On Friday, District Judge Gregory Presnell in Orlando handed down United States v. Powers, a decision striking down part of the Adam Walsh Child Protection and Safety Act of 2006 on Commerce Clause grounds. In relevant part, the Act requires state sex offenders to register if they travel out of state. Specifically, a state sex offender who "travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and [who] knowingly fails to register" with the sex offender registry can be charged with a crime. 18 U.S.C. § 2250(a).
In his opinion, Judge Presnell concludes that Congress has no power to regulate traveling in interstate commerce like this:
Judge Presnell works around this by quarantining the "travel in interstate commerce" requirement and then asking whether the leftover condition on traveling in interstate commerce itself affects interstate commerce. But I don't think you can do that. The issue is whether Congress is regulating interstate commerce, not whether its chosen criteria for regulating interstate commerce themselves have an independent nexus to interstate commerce.
Based on past experience, I should state at the outset for the VC commenting community that: (a) No, this is not some veiled commentary in support of the law, (b) No, this is not an endorsement of modern Commerce Clause doctrine, (c) No, I don't really have views on the merits of sex offender registries more generally, (d) No, I don't know if Judge Presnell hires lots of clerks from Yale. My interest here is just on whether Judge Presnell's decision striking down the law is correct given the current state of binding precedent. Incidentally, if you're interested in some of Judge Presnell's past appearances here at the VC, check out here and here. And thanks to Sentencing Law & Policy for the link.
In his opinion, Judge Presnell concludes that Congress has no power to regulate traveling in interstate commerce like this:
Here, we are clearly not dealing with the regulation of channels or instrumentalities of commerce. Nor are we dealing with the regulation of persons or things in interstate commerce. This is not a case where the interstate travel is intended to further the crime itself, such that a case by case determination can be made as to whether there is a sufficient nexus between the crime and interstate commerce.According to Judge Presnell, the law fails the third prong of Lopez, too:
Unlike the statutes at issue in Lopez and Morrison, § 2250(a) does contain a "jurisdictional element" which purports to establish a link between the failure to register as a sex offender and interstate commerce. The government contends that this language lends support to the argument that § 2250(a) is sufficiently tied to interstate commerce. Upon close examination, however, it becomes apparent that this supposed link is superficial and insufficient to support a finding of substantial affect on interstate commerce.I am not a Commerce Clause expert, but isn't this pretty clearly wrong under prevailing precedents? I have no views about the merits of this law, but it seems to me that the law pretty directly regulates traveling in interstate commerce: Specifically, it directly prohibits such traveling by state sex offenders who have not registered.
The Commerce Clause, and the case law interpreting its limits, require more than statutory “lip service” to interstate commerce. . . . [T]he statute does not become applicable to an individual until after that person has completed his or her interstate travel. And it applies to persons who have engaged in interstate travel regardless of how legitimate their reasons for such travel may have been. The mere fact that the individual has, at some point, traveled in interstate commerce does not establish that his or her subsequent failure to register “substantially affects interstate commerce.” Simply put, there is no nexus between the crime (failure to register) and the interstate travel.
Judge Presnell works around this by quarantining the "travel in interstate commerce" requirement and then asking whether the leftover condition on traveling in interstate commerce itself affects interstate commerce. But I don't think you can do that. The issue is whether Congress is regulating interstate commerce, not whether its chosen criteria for regulating interstate commerce themselves have an independent nexus to interstate commerce.
Based on past experience, I should state at the outset for the VC commenting community that: (a) No, this is not some veiled commentary in support of the law, (b) No, this is not an endorsement of modern Commerce Clause doctrine, (c) No, I don't really have views on the merits of sex offender registries more generally, (d) No, I don't know if Judge Presnell hires lots of clerks from Yale. My interest here is just on whether Judge Presnell's decision striking down the law is correct given the current state of binding precedent. Incidentally, if you're interested in some of Judge Presnell's past appearances here at the VC, check out here and here. And thanks to Sentencing Law & Policy for the link.
Related Posts (on one page):
- Can Congress Regulate Interstate Moves by Sex Offenders Because they count as "Economic Activity" under Gonzales v. Raich?
- U.S. v. Powers, Sex Offender Registration, and the Commerce Clause:
- Congress Has No Power to Regulate Traveling in Interstate Commerce By Unregistered Sex Offenders, District Court Judge Holds:
rofl.
Like the statutes at issue in Lopez and Morisson, SORNA has nothing to do with commerce or any form of economic enterprise. Activities held to affect interstate commerce have been uniformly economic in character, or had some effect on the national market. Morrison, 529 U.S. at 611 (“Lopez’s review of Commerce Clause case law demonstrates that in those cases where we have sustained federal regulation of intrastate activity based upon the activity’s substantial effects on interstate commerce, the activity in question has been some sort of economic endeavor.”).
I realize that common sense plays little role in commerce clause jurisprudence, or to some extent in Supreme Court jurisprudence generally, but it does seem odd to me to think of legislation that requires to register as a sex offender if you come into the state by train, but not if you walk across the border through the woods.
I don't understand; the statute doesn't do that.
Ah, I think I get it; I gather you're assuming that "travel in interstate commerce" means "cross state lines by means of an interstate transportation system." Ends up it mostly just means "cross state lines." Otherwise the statute would be plainly constitutional, but just limited in scope.
Of course, if I'm wrong about that, I would really love to get the citations for it; I've wondered about the issue but I don't think I've seen the Supreme Court's definitive explanation as to why they read out the "commerce" aspect of things being "in interstate commerce" as as a matter of statutory construction.
Under your interpretation of precedent, Orin, could Congress enact the entire Model Penal Code or the entire penal code of, say, the State of Alabama, in a law stating that anyone who shall violate any portion of such code (regardless of the state in which they live), and shall subsequently travel in interstate commerce, shall be guilty of a federal offense? Could a conservative Congress force the most conservative penal law that is otherwise constitutionally permissible if enacted by a state -- which it appears based on circuit-level precedent could prohibit such things as late-term abortions, abortions without parental notification, possession of sex toys, same-sex marriage, and so on -- on any resident of any state who was not willing to commit to never traveling in interstate commerce for the rest of his or her life?
Why don't we make a federal crime of spitting on the Interstate Higway? That surely interferes with interstate commerce (must somehow).
See 18 U.S.C. 1 et. seq.
This is the same district judge sho entered the famous rock, paper, and scissors order over a discovery dispute. He is an unabashed publicity hound. This opinion sounds like more of the same. A Clinton appointee.
I know there is such a thing as federal criminal law -- perhaps I should have been clearer about that. But my understanding is that current federal criminal law generally purports to involve what one might call a more crime-specific jurisdictional nexus. I did not think that there were large portions of 18 USC regulating what one would otherwise consider purely intrastatenot activities, not alleged to affect interstate commerce by Raich standards, on the condition that the person involved subsequently travels in interstate commerce.
So, while I may have left myself open to that response, I think that on a substantive level you haven't really answered my question. In your view, is there any difference whatsoever between the acts that a state may constitutionally criminalize, and the acts that Congress may constitutionally criminalize so long as it adds the condition that they be accompanied by travel in interstate commerce at some subsequent time (even years later)? Could Congress even take over state family and probate law, on a similar rationale, if it restricted the jurisdiction of the "Federal Family Courts" and "Federal Probate Courts" to persons who at some point in their lives had traveled in interstate commerce, and made it a criminal offense to disobey the orders of such courts only if one subsequently traveled in interstate commerce?
On the merits of this case, I think Orin is absolutely right: this statute regulates people who cross state lines. That seems to me a whole lot more obvious a regulation of interstate commerce than the purely local commerce regulated in Raich and Filburn.
We couldn't.
"If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything and the Federal Government is no longer one of limited and enumerated powers." -- Justice Thomas, dissenting, Gonzales v Raich
You may be right that, given sufficient creativity on the part of Congress, Lopez and Morrison apply only to people who spend their entire lives (or at least their entire adult lives) in a single state. But I don't think that this is so clear. I am not 100% certain that the Gun-Free School Zones Act would have been upheld in Lopez if it added the requirement, not even that the gun in question have traveled in interstate commerce, but that the person violating the Gun-Free School Zones Act have traveled in interstate commerce (even if for a completely unrelated reason) at some subsequent point in time.
I know that de minimus jurisdictional nexuses specific to the crime are reasonably common, like the prohibition on felons possessing guns or ammunition that has traveled in interstate commerce (while I don't remember if that's been specifically upheld post-Lopez, I suspect that it would be). But isn't allowing the nexus to be subsequent interstate travel, totally unrelated to the rest of the crime, taking things even a step further?
We couldn't.
"If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything and the Federal Government is no longer one of limited and enumerated powers." -- Justice Thomas, dissenting, Gonzales v Raich
It's still a republic, just not really a federal one.
To put this in perspective, imagine a federal law stipulating that no man may have facial hair, but applying only to those men who have engaged in interstate travel. If the mere fact of interstate travel gives Congress power to regulate anything about a person who does so travel, the commerce clause is limitless. The Court was unwilling to sign on to even a diluted version of this concept in McClung, and has surely signaled even less enthusiasm for expansive notions of the commerce power in Lopez and Morrison. Raich is not a sub rosa overruling of Lopez and Morrison, but a reaffirmation of Wickard in the narrow context of a regulatory statute that, overall, indisputably covered IC. The DJ in Powers got it right.
Apparently Orin thinks so.
Just be sure that, if you child is ever kidnapped, that you don't call the FBI. After all, the feds clearly wouldn't have jurisdiction in that situation.
you're just doing that to get the answer you want.
:)
And I think that the constitutional power of Congress to regulate channels of interstate commerce includes the power to keep channels of interstate commerce free of unregistered sex offenders.
That's not all bad. The civil rights act of 1964 rests on the commerce clause. It has to, since the Court got the privileges and immunities clause of the 14th amendment wrong in 1875.
Nor a very democratic one -- with the outrageous imbalance of power in the federal government favoring small states. With a federal government captive to small states' interests, you see things like the partial birth abortion act, etc., that would never get approved in states like California, but with that state's essential lack of representation in the Senate (and disproportionate representation in the executive and House), you see more-and-more of this crap get passed.
I didn't mean to make such an argument, at least not in isolation from the the case law. In this particular case, though, doesn't the argument-from-absurd-consequences find support in the Lopez majority opinion?
See, for example, this quote from the Lopez majority opinion:
"Under the theories that the Government presents in support of 922(q), it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate."
Or this concluding paragraph:
"To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. See supra, at 8. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, cf. Gibbons v. Ogden, supra, at 195, and that there never will be a distinction between what is truly national and what is truly local, cf. Jones &Laughlin Steel, supra, at 30. This we are unwilling to do."
(I don't have the pincites on hand for these quotes because the free versions of the case I could easily find on line didn't come with West pagination, but they're not too hard to run a Find for.)
At the same time, the Congress-would-have-unlimited-power rationale clearly drove much of the thinking in Lopez. So it is not unreasonable to point out that, if you are right, then Lopez becomes rather meaningless in that it is not a significant constraint. And that, in turn, predicts that you are less likely to be right in the eyes of the Supreme Court if and when it reaches this issue; for better or worse, constitutional decision-making has always been done with an eye to the ultimate result.
That argument doesn't work because in Lopez, there was no interstate commerce nexus at all. The statute prohibited possessing a gun in a school zone, period. Note that following Lopez, Congress just amended the statute to require that the gun have traveled in interstate commerce at some point in the past, and every circuit court to have addressed the issue has held that the new version of the statute is constitutional.
Now you're thinking, "hey, doesn't this mean that Congress can federalize almost whatever it wants under current commerce clause doctrine?" To which the appropriate response is, "welcome to the planet earth, I hope you enjoy your stay."
tvk,
This is 9-0 at the Court, but it won't get there because there won't be a split to get it there. That's my prediction, at least.
I understand about the post-Lopez modified school zone statute; I cited the analogous felon-in-possession statute above. What I've been asking, in effect, is do you think that Congress could instead have said, it is illegal to possess any gun within x yards of a school -- even a purely intrastate gun -- as long as, at some subsequent and unrelated time, the former gun-possessor travels (without the gun) in interstate commerce? It seems to me that allowing an unmoored subsequent nexus to the offender, rather than a contemporaneous nexus to the offense, is arguably a further broadening of the doctrine.
Now, the answer in this case may be that failure to register as a sex offender is a continuing offense, and thus the interstate travel is in a sense contemporaneous with the failure to register, rather than unrelated and subsequent. But I don't think this is quite as simple as you're making it out to be.
Interesting that the court chose to rely on the exact reasoning of Hammer v. Dagenhart (The Child Labor case), as both Hammer and its reasoning were explicitly overruled in U.S. v. Darby. Seems like the court could have at least avoided that land mine on the way to its result.
But this statute prohibits the actual traveling in interstate commerce. That is, the thing a person is not allowed to do is actually travel in interstate commerce.
Bama1L,
Only for a multiple choice question.
I think your conclusion is based on a faulty premise: The AWA doesn't "prohibit[] the actual traveling in interstate commerce." The provision under which Powers was prosecuted provides:
§ 2250. Failure to register
(a) In general. Whoever--
(1) is required to register under the Sex Offender Registration and Notification Act;
(2)
(A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act by reason of a conviction under Federal law (including the Uniform Code of Military Justice [10 USCS §§ 801 et seq.]), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States; or
(B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and
(3) knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act;
shall be fined under this title or imprisoned not more than 10 years, or both.
The AWA makes interstate travel a precondition to prosecution, but it doesn't bar travel. The crime is the failure to register and not the actual travel.
You stole my thunder.
I'm still trying to figure out why this is even debatable...
Dude, you're citing cases; that's the least foolish thing said in this thread!
It's not that people are commerce (well, they can be).
Here is the answer to your question: Piece County v. Gullien. Short answer: Congress can regulate the channels and instrumentalities of interstate commerce, even if said regulation involves non-economic activity.
Not saying I like that. But it is what it is....
Can you try that one again? Looks to me like the crime is traveling in interstate commerce having knowingly failed to register. What text do you think is contary to that?
Under the AWA, a sex offender is free to travel between states - there is no bar on traveling. The crime is a failure to register. The obligation to register does stem from the change of residence (which certainly requires travel between states). However, the Act doesn't actually regulate the traveling. Travel is simply a condition that must occur prior to the commission of the crime.
I posted a few hypotheticals on my blog, but let me pose the question this way: would this statute be constitutional in your mind?
Whoever:
(a) travels in interstate commerce; and
(b) willfully takes the life of another;
shall be imprisoned for a period up to 20 years.
In my mind, that language is too broad for even the most cynical critic of existing Commerce Clause jurisprudence. IT would allow the Feds to completely usurp all state criminal law jurisdiction (except for those few persons who never travel). A person must do more than simply travel between states to be subject to federal jurisdiction related to any subsequent crimes. If the AWA had instead stated that "the failure to register has a substantial effect on interstate commerce," then there would be no problem under Morrison, or Lopez (but the statute would not have nearly the reach it does). The language Congress chose extends beyond the language the Supreme Court has used in those recent Commerce Clause cases ("jurisdictional nexus" and "substantial effect"). The Court has never said what language is needed to satisfy the Commerce Clause limits, but I think the AWA language is just too broad.
And I don't think it is unintentional that Congress didn't choose to directly regulate travel. Had they actually prevented sex offenders from moving across state lines, there would be much more difficult Ex Post Facto issues because such a restriction would more likely be viewed as "punitive."
I hope that at least makes my argument clearer (even if it is not ultimately persuasive).
Corey
I think you are missing a non–trivial moment here: during the time when a sex offender uses a channel of interstate commerce, no crime occurs under this law.
The crime is completed later, when the sex offender fails to register (within a required time), but at that time the sex offender is no longer using a channel of interstate commerce.
Despite this aspect, I still think that making this law is within the power of Congress to regulate channels of interstate commerce (by requiring a person using a channel of interstate commerce to do something after the use).
On the other hand, I'm totally fascinated after Raich and Sabri that some people still think there are serious limits on federalizing crimes. At the current Supreme Court, federalism is basically dead; there's room for occasional symbolic federalism, but nothing real. I thought this was a battle fought and lost. Or so I have thought; perhaps the fact that some people don't read the cases that way suggest that there is some new life for the commerce clause that has generally been seen to be dead.
I think your note that there is "some connection in time" is telling. I wrote the hypothetical with the notion that there is no connection time connection. This is the issue I have trying to focus on lately - there isn't any case law which really makes this point, but I think it is a logical argument. There is no temporal limitation on the AWA language in regards to jurisdiction (but there is for other Act requirements). I think time will certainly be a factor when the Court addresses this issue (if it does). However, I still think the AWA registration provisions will lose this argument (but I'm seeing I'm in the minority on this one).
Corey
Why do you believe that?
Post-Raich, how many cases have struck down federal laws as under the Commerce Clause?
How many cases were GVR'ed in light of Raich?
IOW, why do you believe what you believe? What facts support your belief?
I was just trying to make sense of a hypo I didn't understand: I have never seen a criminal law that has two completely unrelated act elements.
Reading cases takes effort. Bloviating is much easier.
(Thank you Bill O'Reilly for the word bloviate.)
(paragraph breaks added).
We could at least be honest about it. And I'm sure you could muster bi-partisan support.
I admit my insights are largely based upon my reading of Raich. The USSC hasn't really afforded any opportunity to know how Raich will apply.
In my defense, you might check out the case of US v. Comstock currently before the 4th Circuit. A district court struck down the civil commitment provisions of the AWA. These provisions have slightly different issues than those in Powers. However, if Raich were truly as expansive as everyone here seems to believe, then it should apply in Comstock as well. In an interesting twist, though, the government has basically abandoned the argument that the AWA civil commitment provisions are supported by the Commerce Clause. Instead the government is pinning all its hopes on the Necessary and Proper Clause. I can't say I understand their decision, but I blogged about the case at my blog (dated 4-8-08 - sorry, Volokh won't let me post the full long link) if you are interested.
Best,
Corey
And I think that the constitutional power of Congress to regulate channels of interstate commerce includes the power to keep channels of interstate commerce free of unregistered sex offenders.
Or, pre-1865, fugitive slaves.
That is all the decision really needed to say. The gov't still has to show that the law, at least in in the aggregate, substantially affects interstate commerce. Even if we call somebody merely traveling across state lines "commerce," it's not apparent to me at all that the registration requirement or lack thereof is a persuasive factor when registered sex offenders decide whether to travel interstate.