In my earlier post on the federal district court decision striking down a part of the Adam Walsh Act as beyond Congress' powers under the Commerce Clause, I omitted a crucial additional reason why this legislation is valid under the Supreme Court's misguided 2005 decision in Gonzales v. Raich: According to Raich, virtually any interstate movement qualifies as "economic activity" that Congress can regulate at will.
Recall that the Adam Walsh Act requires sex offenders to register with the authorities anytime they make an interstate move. This seems pretty far removed from interstate commerce, which under Article I, Sect. 8, Clause 3 of the Constitution is defined as "commerce . . . among the several States." However, in Raich the Court followed earlier decisions in ruling that the Commerce Clause is broad enough to allow federal regulation of any "economic activity," regardless of whether that activity is interstate or not. Much more controversially, Raich - unlike those earlier decisions - adopted a virtually limitless definition of what counts as "economic activity." It defined it to include anything that involves the "production, distribution, and consumption of commodities." For a more detailed discussion of this aspect of Raich, see pp. 513-16 of my article on the case.
Virtually any interstate movement by a sex offender (or anyone else) falls within this definition. If the mover in question travel by car, bus, train, or plane, fuel was certainly "consumed" in the process. And fuel is definitely a commodity. Even if he went the whole way on foot carrying his possessions with him in his arms, he still probably had to consume food and water along the way in order to maintain the strength to keep going. Food and water are commodities too. Among the many flaws in the district court opinion striking down the registration requirement Adam Walsh Act is its failure to consider Raich's ultraexpansive definition of "economic activity."
Perhaps you think this is an indefensibly broad interpretation of Congress' Comerce Clause authority. If so, I agree with you completely. Unfortunately, the Supreme Court majority doesn't. I can only hope that they will rethink their position; or - more likely - that new appointees will take a more sensible view than the current justices. Until they do, however, the Adam Walsh Act is almost certainly valid under current precedent.
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:
As I explain in some detail in the posts - and much greater detail in my article on Raich linked in the posts - Raich goes well beyond Wickard in endorsing virtually unlimited federal power.
to the exclusion of language one sentence removed:
though "economic activity," as you point out, is defined broadly by the court, legislation must be directed at a commodity for which there is an established market, and not merely at economic activity broadly construed, or at activity which entails an ancillary consumption of commodities.
simply put, there is no market here and neither is there a commodity being exchanged by virtue of the purported economic activity that you suggest be regulated.
distinguish then any attempted regulation of the gas or candy bars consumed by pederasts with 21 U. S. C. §801(5):
As a law student who has recently dealt with this line of case law, I am generally in agreement with b and ithaqua. I disagree with Raich, but I think that it is not dispositive. Raich can be argued to fall within the Wickard line of cases because the activity being regulated is economic in nature (growth, transport, and sale of marijuana, despite the criminal punishment). See also United States v. Perez (upholding conviction for loan sharking based on economic nature of crime). However, Lopez and Morrison both require that the activity be economic in nature, rather than effect, in order to fall within the Commerce Clause. Here, as I understand it, the Adam Walsh Act regulates sex offenders and the places in which they live, so Congress would be without power under CC to regulate the activity. It is conceivable that SCOTUS could justify the Act as a means or conduit of commerce, a la Heart of Atlanta and Katzenbach, but the current justices would be, IMHO, much less sympathetic to that type of argument than Courts prior.
Ithaqua, do you even stop to listen to yourself when you write? Maybe you shouldn't assume everyone is a caricature or a parody.
To be fair, Michael Jackson does remain the King of Pop.
But, no nexus with interstate commerce was shown or alleged in those cases, while here the offenders don't violate the federal law if they stay in their own state.
I heard that someplace.
Point is, stampedes happen in law as well as with cattle. Possibly more often.
Whoever--
(1) is required to register under [SORNA];
(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), 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.
Thus, under the statute, if you were convicted under state law somewhere, and travel "in interstate or foreign commerce," you must register. Presumably, Congress thought it needed to breathe the words "interstate or foreign" to gain constitutional authority to do this, but is clause 2(B) actually necessary as a constitutional matter under Ilya's reading of Raich?
In fact, under Ilya's reading of Raich, is there any necessity for the offender to cross a state line? If he consumes food or other "interstate" items while sitting in his house, can't the feds thereupon require him to get up and go register somewhere?
Child porn is as fungible as wheat, so sex offenders can be as regulated as farmers. And yes Prof Kerr, I am studying for your final on Friday. I'll try not to have run-on sentences in the exam like I do above.
R. Kelly, George Michael, Peter Yarrow, should i keep going?
Nick
The definition in the last sentence implies that to be an "economic activity," the activity must involve not only the consumption but also the production and distribution of commodities. But you interpret it to say that activity is economic when it involves only the consumption of commodities. For your interpretation to be correct, wouldn't the sentence have to read: the "production, distribution, or consumption of commodities"?
So do we actually have a right to interstate travel or not? One could argue that the framers specifically took that right away...
One could also argue that this, specifically, should be covered under the 10th Amendment, even if one otherwise regards that Amendment as unenforcable or 'an inkblot', since it can be read as an assurance that no individual rights are taken away by the Articles->Constitution shift...
Another legal realist.
I just *heart* criminals and sex-offenders. I'd go to their concerts if they'd throw them.
Let's not forget Jerry Lee Lewis. And, as for plain old criminals, what about several of the gangsta rappers and all the dope smokers and other drug users, which includes a huge percentage of the popular music performers of the past 70 years.
I suppose then, that pot growing in the wild must be an example of an economic activity taking place in the complete absence of human involvement? Please! By definition, economic activity has to involve interaction with a second person, and you don't need to interact with other people to grow pot, you could do it as a castaway on an otherwise deserted island.
Don't bother trying to make Wickard or Raich seem like they represent reason, rather than rationalization.
Doesn't moving across state lines in 99% of the cases involve the channels of interstate commerce. I suppose there could be some underground railroad for sex offenders where they just cross state lines through the fields with their belongings held in a bandana tied around a long wooden stick laid across their shoulder, but this seems unlikely enough to make the statute facially constitutional.
Perhaps there is an as applied challenge for those who leg it the whole journey.
Try Morrison, Lopez and the district court case cited to here (Powers?). Reading comprehension is your friend.