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:

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.

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.

  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.

  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.