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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.

Mike& (mail):
Isn't Piece County v. Guillen the more obvious answer to this question?
4.20.2008 7:11pm
catullus (mail):
Ilya is wrong. 1) While Raich purportedly restores the "rational basis" test it does not overrule either Lopez nor Morrison, and a fair reading of the holding of Raich is that the rational basis test applies to issues of congressional power when aggegration under a comprehensive regulatory scheme is at issue. 2) While there is no need for a jurisdictional hook, the absence of one requires proof that the activity regulated -- registration as a sex offender -- substantially affects IC. 3) The statute does not require registration as a condition of travel; it imposes registration as a condition of having traveled interstate. Congress is not limiting the use of the channels of IC; it is imposing a "downstream condition," somewhat akin to the condition invalidated in an unrelated DCC context in Wunnicke.
4.20.2008 7:26pm
Ilya Somin:
a fair reading of the holding of Raich is that the rational basis test applies to issues of congressional power when aggegration under a comprehensive regulatory scheme is at issue.

Nowhere does Raich say this. To the contrary, it specifically states that the rational basis test applies across the board in the Commerce Clause context.

2) While there is no need for a jurisdictional hook, the absence of one requires proof that the activity regulated -- registration as a sex offender -- substantially affects IC.

Raich doesn't say this either. Moreover, the activity regulated here isn't registration. Registration is what the offenders are required to do. Rather, it is interstate travel by sex offenders.

The statute does not require registration as a condition of travel; it imposes registration as a condition of having traveled interstate.

This is not legally meaningful distinction. As a practical matter, requiring registration after travel is a condition on traveling. After all, an offender who fails to register can be imprisoned for a lengthy term solely for the act of having traveled without registering.
4.20.2008 7:36pm
Fearless:
Of course traveling for personal purposes is commerce.

Under your crazy interpretation, the Federal government wouldn't be able to prevent the states from taxing who are crossing state borders for personal purposes.

And that would be silly.
4.20.2008 9:14pm
REPEAL 16-17 (mail):
This is a perfect case for the Supreme Court to resolve the conflict between Raich on one hand and Lopez and Morrison on the other. In my opinion, either Lopez and Morrison should be overruled, or Raich should be overruled. I would prefer the latter.
4.20.2008 9:58pm
OrinKerr:
REPEAL 16-17,

I'm curious: What do you see as the conflict between these cases?
4.20.2008 10:09pm
Justin (mail):
I'm with both Orin and catullus. I tend to think the Court's decision should be overturned, but Ilya's animosity towards Raich (much like his animosity towards Kelo) tends to cloud his judgment in my view - neither case was revolutionary, nor actually changed the state of the law in any meaningful way.
4.20.2008 10:23pm
John Thompson (mail):
As any 1L also knows, there is virtually no activity that could not be interpreted as having, in the aggregate, a substantial effect on interstate commerce. To the extent Raich is interpreted as eviscerating Lopez and Morrison its practical effect is to confirm the revocation of the bulk of the Constitution wreaked by Wickard v. Filburn and its progeny--giving many of the conversations that occur on this blog a kind of Alice in Wonderland quality. No wonder Justin (and no doubt Loki) likes it so much!
4.20.2008 10:33pm
OrinKerr:
Incidentally, among the helpful precedents here is Champion v. Ames, 188 U.S. 321 (1903), which upheld a federal law that banned the interstate transportation of lottery tickets even if the possession of lottery tickets was perfectly legal in the individual states. Here's what appears to be the key part of the analysis:
If a state, when considering legislation for the suppression of lotteries within its own limits, may properly take into view the evils that inhere in the raising of money, in that mode, why may not Congress, invested with the power to regulate commerce among the several states, provide that such commerce shall not be polluted by the carrying of lottery tickets from one state to another? In this connection it must not be forgotten that the power of Congress to regulate commerce among the states is plenary, is complete in itself, and is subject to no limitations except such as may be found in the Constitution.

What provision in that instrument can be regarded as limiting the exercise of the power granted? What clause can be cited which, in any degree, countenances the suggestion that one may, of right, carry or cause to be carried from one state to another that which will harm the public morals? We cannot think of any clause of that instrument that could possibly be invoked by those who assert their right to send lottery tickets from state to state except the one providing that no person shall be deprived of his liberty without due process of law. We have said that the liberty protected by the Constitution *357 embraces the right to be free in the enjoyment of one's faculties; 'to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper.' Allgeyer v. Louisiana, 165 U. S. 578, 589, 41 L. ed. 832, 835, 17 Sup. Ct. Rep. 427, 431. But surely it will not be said to be a part of anyone's liberty, as recognized by the supreme law of the land, that he shall be allowed to introduce into commerce among the states an element that will be confessedly injurious to the public morals.

If it be said that the act of 1894 is inconsistent with the 10th Amendment, reserving to the states respectively, or to the people, the powers not delegated to the United States, the answer is that the power to regulate commerce among the states has been expressly delegated to Congress.

Besides, Congress, by that act, does not assume to interfere with traffic or commerce in lottery tickets carried on exclusively within the limits of any state, but has in view only commerce of that kind among the several states. It has not assumed to interfere with the completely internal affairs of any state, and has only legislated in respect of a matter which concerns the people of the United States. As a state may, for the purpose of guarding the morals of its own people, forbid all sales of lottery tickets within its limits, so Congress, for the purpose of guarding the people of the United States against the 'widespread pestilence of lotteries' and to protect the commerce which concerns all the states, may prohibit the carrying of lottery tickets from one state to another.

In legislating upon the subject of the traffic in lottery tickets, as carried on through interstate commerce, Congress only supplemented the action of those states-perhaps all of them-which, for the protection of the public morals, prohibit the drawing of lotteries, as well as the sale or circulation of lottery tickets, within their respective limits. It said, in effect, that it would not permit the declared policy of the states, which sought to protect their people against the mischiefs of the lottery business, to be overthrown or disregarded by the agency of interstate commerce. We should hesitate long before adjudging that an evil of such *358 appalling character, carried on through interstate commerce, cannot be met and crushed by the only power competent to that end. We say competent to that end, because Congress alone has the power to occupy, by legislation, the whole field of interstate commerce.
(paragraph breaks added).
4.20.2008 11:00pm
REPEAL 16-17 (mail):
Lopez and Morrison require any activity to be "substantially related" to interstate commerce, in order for it be capable of being regulated under the Commerce Clause. How is growing your own marijuana any more "substantially related" to interstate commerce than possessing a gun near a school or violence against women?
4.20.2008 11:08pm
OrinKerr:
Repeal,

Well, the Supreme Court's argument was that growing marijuana is part of the interstate marijuana economy, whereas the other activities were not part of an interstate economy. I assume you find this unpersuasive.
4.20.2008 11:42pm
REPEAL 16-17 (mail):
I assume you find this unpersuasive.


That's right. Medical marijuana isn't an economy. I believe that Raich was an example of drugs being a definitive factor in Constitutional interpretation, much as what happened in the "Bong Hits 4 Jesus" case.
4.20.2008 11:56pm
OrinKerr:
Sometimes drug defendants win, sometimes they lose; I didn't know drugs were a definitive factor. Or maybe they're definitive in the cases that drug defendants lose, just not definitive in the cases they win?
4.21.2008 12:03am
REPEAL 16-17 (mail):
There's an economy in guns and in drugs. Yet in Lopez that was irrelevant and in Raich it was very important. Why is that?
4.21.2008 12:07am
Jonathan F.:

I believe that Raich was an example of drugs being a definitive factor in Constitutional interpretation . . . .
Just as much as Wickard was an example of wheat being a definitive factor in constitutional interpretation.
4.21.2008 12:09am
OrinKerr:
Repeal writes: "There's an economy in guns and in drugs. Yet in Lopez that was irrelevant and in Raich it was very important. Why is that?"

Obviously the justices love guns. Or they hate schools.
4.21.2008 12:11am
NI:
I think this whole Alice in Wonderland conversation about how many cheshire cats can dance on the table at the mad hatter's tea party is necessitated by a result-oriented Supreme Court that at the moment is conservative result oriented but has in the past and may again in the future be liberal result oriented.

Pre Wickard v. Filburn, it had been understood for 150 years that regulating interstate commerce meant being a traffic cop and keeping things moving. That's why Prohibition required a Constitutional amendment: Because absolutely nobody understood the Commerce Clause to convey any substantive police powers to Congress; merely procedural powers to maintain the flow of interstate commerce. And if the conservatives are as serious about federalism as they claim to be (unless, of course, the states want medical marijuana or assisted suicide or gay marriage or some such thing), they are just going to have to ditch Wickard and 70 years of Wickard's progeny. Otherwise, federalism is dead on any issue of any importance.

Well, I for one was hoping that Raich would be the vehicle for a conservative Supreme Court to practice what it preaches and reinstate federalism by overturning Wickard. No such luck. Since the subject was drugs, those result-oriented, activist conservative judges drove another nail into federalism's coffin.

All of that said, I agree with the previous poster that the Commerce Clause is not the plaintiff's best argument. Privileges and immunities (both the right to travel and the right to be left alone once one has completed one's sentence) seem to me to be better arguments. Any chance an appellate (or the Supreme) Court might forget for a minute that the specific facts of the case are sex offenders and give a non-result-oriented decision by tossing sex offender registration altogether? I'm not holding my breath.
4.21.2008 12:49am
Dave Hardy (mail) (www):
"Well, I for one was hoping that Raich would be the vehicle for a conservative Supreme Court to practice what it preaches and reinstate federalism by overturning Wickard. No such luck. Since the subject was drugs, those result-oriented, activist conservative judges drove another nail into federalism's coffin."

I wouldn't describe them as activist, but I do believe you have a big point. What we describe as "conservative" really divides into rules/conservative ("social") and libertarian/conservative thought. Rules/conservatives *really* dislike illegal drugs. Hippies, anarchy, and everything goes to hell or at least Woodstock. Libertarian/conservatives figure so long as you don't hurt someone, who cares?

How we factor that in the holding of a commerce clause case is another issue (grin).
4.21.2008 1:40am
theobromophile (www):
Repeal writes: "There's an economy in guns and in drugs. Yet in Lopez that was irrelevant and in Raich it was very important. Why is that?"

Obviously the justices love guns. Or they hate schools.

Actually, Prof. Kerr, they hate women. Clearly. ;)
4.21.2008 2:04am
Elliot Reed (mail):
As first year constitutional students know, almost any non-moronic conjecture is enough to satisfy the rational basis test.

"almost"?

As far as EP and DP analysis go, there are a few "heightened rationality" cases where SCOTUS has actually found something to fail the rational basis test, but they don't involve the legislature being particularly irrational (or at least not more than it usually is). The only real trends are that SCOTUS (a) breaks the black-letter-law of rational basis by doing things like putting the burden on the government to show the rationality of the law or looking to the actual purpose of the legislature rather than a hypothetical purpose and (b) doesn't explain why the case merits heightened rationality.
4.21.2008 2:05am
theobromophile (www):
(The last comment applies to Morrison more than Lopez; it's just that, as girls outperform boys in school, the Justices were trying to make schools a worse place for women.)
4.21.2008 2:09am
Mike& (mail):
Actually, Prof. Kerr, they hate women. Clearly. ;)


Actually, that's not entirely untrue. If you understand Lopez as being about guns, and Morrison about being about women's rights, and Raich as being about marijuana, the cases are all easy to reconcile.

Conservatives are odd ducks. They hate drugs, but love tobacco companies. See FDA v. Brown &Williamson. Because tobacco isn't a drug?

They don't respect the presumption of innocence or "criminal rights," except when women are involved. Because rape allegations are more likely to be false?

So while you were being tongue-in-cheek, there is some truth to what you wrote.
4.21.2008 2:50am
Anon21:
NI:

"Any chance an appellate (or the Supreme) Court might forget for a minute that the specific facts of the case are sex offenders and give a non-result-oriented decision by tossing sex offender registration altogether? I'm not holding my breath."

Perhaps a small chance, but given that the Court turned back an ex post facto-based challenge to a statute mandating publication of sex offenders' identifying information and photographs online in Smith v. Doe, 538 U.S. 84 (2003), I think it's unlikely the current Court would be willing to strike down sex offender registration. Although Smith probably wouldn't control directly (assuming a procedural or substantive due process challenge to registration requirements) its analysis is likely to be seen as persuasive by any appellate panel already inclined not to invalidate such requirements.
4.21.2008 3:02am
CrazyTrain (mail):
Of course traveling for personal purposes is commerce.

Under your crazy interpretation, the Federal government wouldn't be able to prevent the states from taxing who are crossing state borders for personal purposes.


No. Under that "crazy interpretation" the Commerce Clause would not bar states taxing personal travel between states, but other provisions of the Constitution would. In particular, there is a right of interstate travel (as part of the P&I clause of the 14th Amendment) recognized by the Supreme Court as recently as a few years ago, and under that case, the taxing of interstate travel would clearly be an undue burden on it.
4.21.2008 3:35am
Justin (mail):
John Thompson,

You make an idiot out of yourself by assuming I like Raich. I was considering drafting a law review article, back when I still wanted to be a law professor, trying to use various international law principles as a way of limiting the scope of Wickard/Raich. But to think Raich could have come out any other way without making major changes in Constitutional jurisprudence is simply psychotic - which is why my proposed law review article was resorting to something you'd never see happen - international (comparative) legal principles.

What's really annoying about conservatives these days is that they so expect to win in front of the judiciary, that they so expect their revolution to succeed, that 1) whenever they lose, even on a revolutionary, groundbreaking case where every non-true-believer is telling them they're going to lose 7-2 or worse, they get whiney, like some great injustice has been done; and 2) they assume everyone who disagrees with them is not just wrong but is on the other side - whether it's about the judiciary or fighting terrorism.
4.21.2008 9:32am
Chrisc:
I'm rather surprised by the assertion that Raich was decided the way it was because the court was so "conservative". This was before the O'Connor retirement so I would have labeled the "conservatives" on the court as Scalia, Thomas, and Rehnquist.

Only Scalia joined the majority. Thomas, in fact, specifically rejected the entire line of case law dealing with things that "substantially affect" interstate commerce stating that the Federal government only has authority to regulate that which is "necessary and proper" for the regulation of actual interstate commerce.
4.21.2008 10:58am
Mike& (mail):
To understand Justice Kennedy's vote in Raich, read this commentary. There, he basically called anyone who didn't want to be drug tested a "druggie." This, despite the fact that the plaintiff in that case passed a drug test.

I could have passed a drug test in high school. But I never would have consented to one. According to Justice Kennedy, I am therefore a druggie.
4.21.2008 12:59pm