United States v. Kebodeaux and Congressional Power under the Necessary and Proper Clause

Amidst the hoopla surrounding Fisher v. University of Texas, most people probably missed today’s other potentially significant Supreme Court decision: United States v. Kebodeaux, which deals with Congress powers under the Necessary and Proper Clause. Trevor Burrus of the Cato Institute (who assisted in the preparation of an amicus brief I coauthored on Cato’s behalf in the case) has a good summary of the case and its implications:

In 1999, Anthony Kebodeaux was sentenced to three years in prison for statutory rape. He served his time and was freed. Years later, when Kebodeaux moved intrastate from San Antonio, Texas to El Paso, Texas, he failed to update his change of address within the three-day period as required by the federal Sex Offender Registration and Notification Act (SORNA) of 2006.

Because Kebodeaux was freed from federal custody, the Fifth Circuit ruled that his “unconditional” release meant that Congress had lost jurisdiction over him and that they could not regain it without some action (such as interstate travel) that brought him back into federal jurisdiction. We filed a brief arguing that to allow Congress to assert jurisdiction over someone because he was once in federal jurisdiction would be improper because it would give Congress nearly limitless power. After all, all of us have been in federal jurisdiction at some point. This would be the “Hotel California” theory of jurisdiction: you can check out, but you can never leave.

In today’s opinion, however, Justice Stephen Breyer, writing for Justices Kennedy, Ginsburg, Sotomayor, and Kagan, tactfully sidestepped the “Hotel California” theory by holding that Kebodeaux had never actually checked out of federal jurisdiction, thus repudiating that Fifth Circuit’s characterization of Kebodeaux’s release as “unconditional.” The Court accepted the Solicitor General’s argument that, “through a complex set of statutory cross-references,” Kebodeaux was subject to another registration requirement, the Wetterling Act, at the time of his release. SORNA was merely a modification of the registration requirements of the Wetterling Act.

Trevor correctly argues that the the Court should have affirmed the Fifth Circuit decision, which ruled against the government. Even under the majority’s interpretation of SORNA and the Wetterling Act, his imprisonment was beyond the scope of congressional power for reasons effectively outlined in Justice Thomas’ dissent. As Thomas explains, the Clause only authorizes laws that “carry.. into Execution” other powers granted to the federal government, and SORNA “fails this test.” However, thanks to the majority’s repudiation of the Fifth Circuit’s holding that Kebodeaux’s release was “unconditional,” the ruling does not go much beyond the reasoning in the Court’s 2010 decision in United States v. Comstock, which held that Congress had the power to authorize the continued detention of “sexually dangerous” federal prisoners even after their sentences were over. I am far from thrilled with this result, largely because I believe Comstock was wrongly decided. I also think that some of the majority’s statutory analysis of SORNA and the Wetterling Act is dubious. But at least the ruling doesn’t make Necessary and Proper Clause doctrine significantly worse than it was before.

UPDATE: I have made some stylistic changes to the last paragraph of this post.