U.S. v. Powers, Sex Offender Registration, and the Commerce Clause:

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.