In a dissent filed today in United States v. Reynard, Judge Pregerson argued that the DNA Analysis Backlog Elimination Act of 2000 (the "DNA Act") is unconstitutional because it exceeds Congress's authority. The DNA Act compels those convicted of qualifying federal crimes to submit to DNA collection as a condition of being released on federal probation or supervised release. In his dissent filed today, Judge Pregerson argued that this law exceeds the Commerce Clause power even after Raich:

  [B]y passing the DNA Act, Congress is attempting to regulate something that it — and nobody else — has put into the stream of commerce. Reynard's DNA — while housed in his body — is not a "thing" in interstate commerce until the government, under the DNA Act, compels the DNA's extraction by drawing blood from a parolee and places the DNA in the stream of commerce for analysis. Congress may not bootstrap its authority to regulate purely local activity under the Commerce Clause. If the government is allowed to regulate anything that it puts into the stream of commerce, its powers under the Commerce Clause would be without limit. "To be sure, 'the power to regulate commerce, though broad indeed, has limits.' " Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 58 (2003) (quoting Maryland v. Wirtz, 392 U.S. 183, 196 (1968)). By arguing that Condon authorizes Congress to regulate Reynard's DNA only after the government has placed it in interstate commerce, the government puts the proverbial cart before the proverbial horse.
  Because passage of the DNA Act cannot be justified under any of the three "categories of regulation in which Congress is authorized to engage under its commerce power," Raich, 125 S. Ct. at 2205, I agree with Reynard that passage of the DNA Act exceeds Congress's power under the Commerce Clause.

  First Judge Reinhardt, now Judge Pregerson. I wonder if these Judges want to bring back the Constitution-in-Exile? (Hat tip: Decision of the Day)