Ninth Circuit Upholds Sex-Offender Registration as “Necessary and Proper” Under NFIB v. Sebelius

Today the U.S. Court of Appeals for the Ninth Circuit rejected a constitutional challenge to federal sex offender registration requirements under SORNA. Specifically,in United States v. Elk Shoulder, the court rejected a claim that the registration requirement was beyond the scope of Congress’s enumerated powers because so long as Congress had the authority to enact the statute criminalizing the underlying offense, Congress could rely upon the Necessary and Proper Clause to require registration.

This is one of the first circuit court cases to apply the federalism-related holdings of NFIB v. Sebelius, and the Court cites the health care decision several times. For instance, the Court notes that “because SORNA registration requirements are imposed only on individuals who were convicted of sexual offenses, it regulates only ‘those who by some preexisting activity bring themselves within the sphere of federal regulation.’” It further notes that “Although the Necessary and Proper Clause provides no justification for laws effecting ‘a substantial expansion of federal authority,’ . . . SORNA’s registration requirement is ‘narrow in scope’ and ‘incidental to the exercise’ of enumerated powers.