The Middle District of Florida's decision striking down a part of the Adam Walsh Act that requires sex offenders to register if they make an interstate move is flawed in several respects. Let me state at the outset that I think that this statute is unconstitutional on the basis of anything remotely approaching a correct interpretation of the Commerce Clause. Travel by sex offenders (or other citizens not traveling for commercial purposes) is not commerce. Nor is requiring them to register with federal officials a regulation of commercial activity (even if interstate travel counts as such). Rather, it is an attempt to protect children against sex crimes.
That said, I think Orin is right that the decision is inconsistent with current Supreme Court precedent. In particular, it virtually ignores the Court's 2005 decision in Gonzales v. Raich, which, as I argued in this article, almost completely eviscerates any judicially enforceable limits on Congress' Commerce Clause authority.
The most glaring of the district court's omissions is its failure to recognize that Raich reinstated the so-called "rational basis" test for determining whether a federal law regulates interstate commerce or not. That is, the Court held that the feds need only show that Congress might have had a "rational basis" for believing that the activity regulated by the law has, in the aggregate, a "substantial effect" on interstate commerce. As first year constitutional students know, almost any non-moronic conjecture is enough to satisfy the rational basis test. At the very least, the District Court should have applied the rational basis test and explained exactly why the Walsh Act's registration requirements fail it despite its extremely deferential nature. This it conspicuously fails to do.
Second, the district court claims that the Walsh Act must have a clear and relatively stringent "jurisdictional element" limiting its scope to cases connected to interstate commerce. The lack of a jurisdictional element was indeed one factor cited by the Supreme Court in striking down federal statutes on Commerce Clause grounds in United States v. Lopez and United States v. Morrison. However, the Court has never required the presence of a jurisdictional element, and indeed the law upheld in Raich did not have any more stringent a jurisdictional element than the Walsh Act.
Third, the court too easily dismisses in one conclusory line the possibility that the Walsh Act might be a regulation of the "channels and instrumentalities of interstate commerce" (which the Supremes have consistently said Congress can regulate). By preventing sex offenders from traveling interstate without meeting the the registration requirement, the Act does indeed restrict who can use the interstate transportation systems that surely count as "channels and instrumentalities of interstate commerce."
It is possible that the district judge could have shown that the Walsh Act registration requirement is unconstitutional even under Raich, though I highly doubt it. His failure to even consider Raich makes it extremely likely that this decision will be overturned by the Eleventh Circuit Court of Appeals.
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:
Nowhere does Raich say this. To the contrary, it specifically states that the rational basis test applies across the board in the Commerce Clause context.
2) While there is no need for a jurisdictional hook, the absence of one requires proof that the activity regulated -- registration as a sex offender -- substantially affects IC.
Raich doesn't say this either. Moreover, the activity regulated here isn't registration. Registration is what the offenders are required to do. Rather, it is interstate travel by sex offenders.
The statute does not require registration as a condition of travel; it imposes registration as a condition of having traveled interstate.
This is not legally meaningful distinction. As a practical matter, requiring registration after travel is a condition on traveling. After all, an offender who fails to register can be imprisoned for a lengthy term solely for the act of having traveled without registering.
Under your crazy interpretation, the Federal government wouldn't be able to prevent the states from taxing who are crossing state borders for personal purposes.
And that would be silly.
I'm curious: What do you see as the conflict between these cases?
Well, the Supreme Court's argument was that growing marijuana is part of the interstate marijuana economy, whereas the other activities were not part of an interstate economy. I assume you find this unpersuasive.
That's right. Medical marijuana isn't an economy. I believe that Raich was an example of drugs being a definitive factor in Constitutional interpretation, much as what happened in the "Bong Hits 4 Jesus" case.
Obviously the justices love guns. Or they hate schools.
Pre Wickard v. Filburn, it had been understood for 150 years that regulating interstate commerce meant being a traffic cop and keeping things moving. That's why Prohibition required a Constitutional amendment: Because absolutely nobody understood the Commerce Clause to convey any substantive police powers to Congress; merely procedural powers to maintain the flow of interstate commerce. And if the conservatives are as serious about federalism as they claim to be (unless, of course, the states want medical marijuana or assisted suicide or gay marriage or some such thing), they are just going to have to ditch Wickard and 70 years of Wickard's progeny. Otherwise, federalism is dead on any issue of any importance.
Well, I for one was hoping that Raich would be the vehicle for a conservative Supreme Court to practice what it preaches and reinstate federalism by overturning Wickard. No such luck. Since the subject was drugs, those result-oriented, activist conservative judges drove another nail into federalism's coffin.
All of that said, I agree with the previous poster that the Commerce Clause is not the plaintiff's best argument. Privileges and immunities (both the right to travel and the right to be left alone once one has completed one's sentence) seem to me to be better arguments. Any chance an appellate (or the Supreme) Court might forget for a minute that the specific facts of the case are sex offenders and give a non-result-oriented decision by tossing sex offender registration altogether? I'm not holding my breath.
I wouldn't describe them as activist, but I do believe you have a big point. What we describe as "conservative" really divides into rules/conservative ("social") and libertarian/conservative thought. Rules/conservatives *really* dislike illegal drugs. Hippies, anarchy, and everything goes to hell or at least Woodstock. Libertarian/conservatives figure so long as you don't hurt someone, who cares?
How we factor that in the holding of a commerce clause case is another issue (grin).
Actually, Prof. Kerr, they hate women. Clearly. ;)
"almost"?
As far as EP and DP analysis go, there are a few "heightened rationality" cases where SCOTUS has actually found something to fail the rational basis test, but they don't involve the legislature being particularly irrational (or at least not more than it usually is). The only real trends are that SCOTUS (a) breaks the black-letter-law of rational basis by doing things like putting the burden on the government to show the rationality of the law or looking to the actual purpose of the legislature rather than a hypothetical purpose and (b) doesn't explain why the case merits heightened rationality.
Actually, that's not entirely untrue. If you understand Lopez as being about guns, and Morrison about being about women's rights, and Raich as being about marijuana, the cases are all easy to reconcile.
Conservatives are odd ducks. They hate drugs, but love tobacco companies. See FDA v. Brown &Williamson. Because tobacco isn't a drug?
They don't respect the presumption of innocence or "criminal rights," except when women are involved. Because rape allegations are more likely to be false?
So while you were being tongue-in-cheek, there is some truth to what you wrote.
"Any chance an appellate (or the Supreme) Court might forget for a minute that the specific facts of the case are sex offenders and give a non-result-oriented decision by tossing sex offender registration altogether? I'm not holding my breath."
Perhaps a small chance, but given that the Court turned back an ex post facto-based challenge to a statute mandating publication of sex offenders' identifying information and photographs online in Smith v. Doe, 538 U.S. 84 (2003), I think it's unlikely the current Court would be willing to strike down sex offender registration. Although Smith probably wouldn't control directly (assuming a procedural or substantive due process challenge to registration requirements) its analysis is likely to be seen as persuasive by any appellate panel already inclined not to invalidate such requirements.
Under your crazy interpretation, the Federal government wouldn't be able to prevent the states from taxing who are crossing state borders for personal purposes.
No. Under that "crazy interpretation" the Commerce Clause would not bar states taxing personal travel between states, but other provisions of the Constitution would. In particular, there is a right of interstate travel (as part of the P&I clause of the 14th Amendment) recognized by the Supreme Court as recently as a few years ago, and under that case, the taxing of interstate travel would clearly be an undue burden on it.
You make an idiot out of yourself by assuming I like Raich. I was considering drafting a law review article, back when I still wanted to be a law professor, trying to use various international law principles as a way of limiting the scope of Wickard/Raich. But to think Raich could have come out any other way without making major changes in Constitutional jurisprudence is simply psychotic - which is why my proposed law review article was resorting to something you'd never see happen - international (comparative) legal principles.
What's really annoying about conservatives these days is that they so expect to win in front of the judiciary, that they so expect their revolution to succeed, that 1) whenever they lose, even on a revolutionary, groundbreaking case where every non-true-believer is telling them they're going to lose 7-2 or worse, they get whiney, like some great injustice has been done; and 2) they assume everyone who disagrees with them is not just wrong but is on the other side - whether it's about the judiciary or fighting terrorism.
Only Scalia joined the majority. Thomas, in fact, specifically rejected the entire line of case law dealing with things that "substantially affect" interstate commerce stating that the Federal government only has authority to regulate that which is "necessary and proper" for the regulation of actual interstate commerce.
I could have passed a drug test in high school. But I never would have consented to one. According to Justice Kennedy, I am therefore a druggie.