pageok
pageok
pageok
Can Congress Regulate Interstate Moves by Sex Offenders Because they count as "Economic Activity" under Gonzales v. Raich?

In my earlier post on the federal district court decision striking down a part of the Adam Walsh Act as beyond Congress' powers under the Commerce Clause, I omitted a crucial additional reason why this legislation is valid under the Supreme Court's misguided 2005 decision in Gonzales v. Raich: According to Raich, virtually any interstate movement qualifies as "economic activity" that Congress can regulate at will.

Recall that the Adam Walsh Act requires sex offenders to register with the authorities anytime they make an interstate move. This seems pretty far removed from interstate commerce, which under Article I, Sect. 8, Clause 3 of the Constitution is defined as "commerce . . . among the several States." However, in Raich the Court followed earlier decisions in ruling that the Commerce Clause is broad enough to allow federal regulation of any "economic activity," regardless of whether that activity is interstate or not. Much more controversially, Raich - unlike those earlier decisions - adopted a virtually limitless definition of what counts as "economic activity." It defined it to include anything that involves the "production, distribution, and consumption of commodities." For a more detailed discussion of this aspect of Raich, see pp. 513-16 of my article on the case.

Virtually any interstate movement by a sex offender (or anyone else) falls within this definition. If the mover in question travel by car, bus, train, or plane, fuel was certainly "consumed" in the process. And fuel is definitely a commodity. Even if he went the whole way on foot carrying his possessions with him in his arms, he still probably had to consume food and water along the way in order to maintain the strength to keep going. Food and water are commodities too. Among the many flaws in the district court opinion striking down the registration requirement Adam Walsh Act is its failure to consider Raich's ultraexpansive definition of "economic activity."

Perhaps you think this is an indefensibly broad interpretation of Congress' Comerce Clause authority. If so, I agree with you completely. Unfortunately, the Supreme Court majority doesn't. I can only hope that they will rethink their position; or - more likely - that new appointees will take a more sensible view than the current justices. Until they do, however, the Adam Walsh Act is almost certainly valid under current precedent.

Related Posts (on one page):

  1. Can Congress Regulate Interstate Moves by Sex Offenders Because they count as "Economic Activity" under Gonzales v. Raich?
  2. U.S. v. Powers, Sex Offender Registration, and the Commerce Clause:
  3. Congress Has No Power to Regulate Traveling in Interstate Commerce By Unregistered Sex Offenders, District Court Judge Holds:
Tony Tutins (mail):
Who cares about the Commerce Clause when Americans have a fundamental right to interstate travel? Cornellian alluded to this in his comment to the first of these posts. States can require sex offenders to register as long as they require natives and newcomers alike.
4.21.2008 3:35am
Gilbert (mail):
I think that is an uncharitable interpretation of Raich. This falls more under US v. Morrison (gender-based violence is not interstate commerce) than Wickard v. Filburn (private wheat crop is interstate commerce) in that the aggregate effects are incidental to the conduct, not a direct result.
4.21.2008 3:44am
Ilya Somin:
I think that is an uncharitable interpretation of Raich. This falls more under US v. Morrison (gender-based violence is not interstate commerce) than Wickard v. Filburn (private wheat crop is interstate commerce) in that the aggregate effects are incidental to the conduct, not a direct result.

As I explain in some detail in the posts - and much greater detail in my article on Raich linked in the posts - Raich goes well beyond Wickard in endorsing virtually unlimited federal power.
4.21.2008 3:51am
b.:
your interpretation of Raich is a straw man, focusing on this language:

As we stated in Wickard [v. Filburn, 317 U. S. 111, 128–129 (1942)], “even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.” Id., at 125;

to the exclusion of language one sentence removed:

When Congress decides that the total incidence’ ”of a practice poses a threat to a national market, it may regulate the entire class.

though "economic activity," as you point out, is defined broadly by the court, legislation must be directed at a commodity for which there is an established market, and not merely at economic activity broadly construed, or at activity which entails an ancillary consumption of commodities.

simply put, there is no market here and neither is there a commodity being exchanged by virtue of the purported economic activity that you suggest be regulated.

distinguish then any attempted regulation of the gas or candy bars consumed by pederasts with 21 U. S. C. §801(5):

The CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational ... means of regulating commerce in that product.
4.21.2008 7:01am
ithaqua (mail):
I have to agree with b. here. It seems, from your last few posts, that you're interpreting the consequences of Raich based on Thomas' dissent ("If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.") rather than the more limited majority decision. Given this, and the fact that at least five Supreme Court justices would vote to overturn the Adam Walsh act - Thomas because it's outside federal authority, and the four liberals because they're routinely pro-criminal and pro-sex offender - I'd expect the district court decision to be upheld. Unfortunately.
4.21.2008 9:37am
Nate Greene (mail):
Prof. Somin—

As a law student who has recently dealt with this line of case law, I am generally in agreement with b and ithaqua. I disagree with Raich, but I think that it is not dispositive. Raich can be argued to fall within the Wickard line of cases because the activity being regulated is economic in nature (growth, transport, and sale of marijuana, despite the criminal punishment). See also United States v. Perez (upholding conviction for loan sharking based on economic nature of crime). However, Lopez and Morrison both require that the activity be economic in nature, rather than effect, in order to fall within the Commerce Clause. Here, as I understand it, the Adam Walsh Act regulates sex offenders and the places in which they live, so Congress would be without power under CC to regulate the activity. It is conceivable that SCOTUS could justify the Act as a means or conduit of commerce, a la Heart of Atlanta and Katzenbach, but the current justices would be, IMHO, much less sympathetic to that type of argument than Courts prior.
4.21.2008 9:56am
PersonFromPorlock:
Those who think that Raich is limited in its impact need to reflect that when dealing with the government, self-limited is unlimited. Government is always more understanding of the need for power than restraint.
4.21.2008 10:22am
Justin (mail):
I just *heart* criminals and sex-offenders. I'd go to their concerts if they'd throw them.

Ithaqua, do you even stop to listen to yourself when you write? Maybe you shouldn't assume everyone is a caricature or a parody.
4.21.2008 10:26am
Laura S.:
Has anyone made an 8th amendment challenge to these registration laws? Consider that 'sex-crimes' covers a wide range of behaviors beginning at indecent exposure and ending in rape.
4.21.2008 11:33am
ithaqua (mail):
"I just *heart* criminals and sex-offenders. I'd go to their concerts if they'd throw them. "

To be fair, Michael Jackson does remain the King of Pop.
4.21.2008 11:33am
Mad Jurist (mail):
To echo what Nate Greene says, at least for Scalia, the reason the legislation in Raich was fine, as opposed to Lopez and Morrison, was that the underlying activity itself was economic in nature. Growing pot, like growing wheat, is an economic activity. Being a sex offender is more like gender-based violence or having a gun in a school zone.
4.21.2008 11:48am
Tony Tutins (mail):
Being a sex offender is more like gender-based violence or having a gun in a school zone.

But, no nexus with interstate commerce was shown or alleged in those cases, while here the offenders don't violate the federal law if they stay in their own state.
4.21.2008 12:01pm
Tony Tutins (mail):
Well, the incidence of violent assault might deter some women from moving to a particular state, but that was not a winning argument.
4.21.2008 12:03pm
Richard Aubrey (mail):
Really, really bad people make for really, really bad law.
I heard that someplace.

Point is, stampedes happen in law as well as with cattle. Possibly more often.
4.21.2008 12:08pm
John (mail):
The statute says:

Whoever--
(1) is required to register under [SORNA];

(2) (A) is a sex offender as defined for the purposes of the Sex Offender
Registration and Notification Act by reason of a conviction under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States; or
(B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and

(3) knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act; shall be fined under this title or imprisoned not more than 10 years, or both.


Thus, under the statute, if you were convicted under state law somewhere, and travel "in interstate or foreign commerce," you must register. Presumably, Congress thought it needed to breathe the words "interstate or foreign" to gain constitutional authority to do this, but is clause 2(B) actually necessary as a constitutional matter under Ilya's reading of Raich?

In fact, under Ilya's reading of Raich, is there any necessity for the offender to cross a state line? If he consumes food or other "interstate" items while sitting in his house, can't the feds thereupon require him to get up and go register somewhere?
4.21.2008 12:14pm
skyywise (mail):
See U.S. v. Jeronimo-Bautista, 425 F.3d 1266 (10th Cir. 2005). If the government is using the Wickard-Lopez-Morrison-Raich chain of rationale to say that taking a photo of child porn is sufficiently related to interstate commerce because (1) the camera parts were manufactured out of state &(2) a black market of child porn exists, even though the pictures never came close to crossing state lines, then regulating the movements of sex offenders that actually does cross state lines via the Commerce Clause seems to be (regrettably &dangerously) easy.

Child porn is as fungible as wheat, so sex offenders can be as regulated as farmers. And yes Prof Kerr, I am studying for your final on Friday. I'll try not to have run-on sentences in the exam like I do above.
4.21.2008 12:30pm
NickM (mail) (www):

I just *heart* criminals and sex-offenders. I'd go to their concerts if they'd throw them.


R. Kelly, George Michael, Peter Yarrow, should i keep going?

Nick
4.21.2008 12:43pm
Curtis Crawford (mail) (www):
Prof. Somin, you write: "However, in Raich the Court followed earlier decisions in ruling that the Commerce Clause is broad enough to allow federal regulation of any "economic activity," regardless of whether that activity is interstate or not. Much more controversially, Raich - unlike those earlier decisions - adopted a virtually limitless definition of what counts as "economic activity." It defined it to include anything that involves the "production, distribution, and consumption of commodities.""

The definition in the last sentence implies that to be an "economic activity," the activity must involve not only the consumption but also the production and distribution of commodities. But you interpret it to say that activity is economic when it involves only the consumption of commodities. For your interpretation to be correct, wouldn't the sentence have to read: the "production, distribution, or consumption of commodities"?
4.21.2008 12:54pm
Jeff R.:
The Articles of Confederation included a reference to a citizen's right to "Free Ingress and Regress" between the states, but the corresponding section of the Constitution omitted that phrase.

So do we actually have a right to interstate travel or not? One could argue that the framers specifically took that right away...

One could also argue that this, specifically, should be covered under the 10th Amendment, even if one otherwise regards that Amendment as unenforcable or 'an inkblot', since it can be read as an assurance that no individual rights are taken away by the Articles->Constitution shift...
4.21.2008 1:35pm
Visitor Again:
the fact that at least five Supreme Court justices would vote to overturn the Adam Walsh act - Thomas because it's outside federal authority, and the four liberals because they're routinely pro-criminal and pro-sex offender

Another legal realist.

I just *heart* criminals and sex-offenders. I'd go to their concerts if they'd throw them.

Let's not forget Jerry Lee Lewis. And, as for plain old criminals, what about several of the gangsta rappers and all the dope smokers and other drug users, which includes a huge percentage of the popular music performers of the past 70 years.
4.21.2008 3:03pm
Roscoe B. Means:
I think everyone's missing something (which probably means it's I who am missing it). To violate the Act, one must travel interstate AND fail to register "as required by SORNA." To be required to register under SORNA, as I read it, the defendant must have established a new residence, accepted employment, or enrolled in an education institution in a new state. SORNA sec. 113. So, it's not just the travel that constitutes the commerce. I supposed it's possible that someone could be convicted by somehow establishing residency without engaging in any commercial activity, but I'd think that case would have to await an "as applied" challenge by that defendant.
4.21.2008 3:35pm
Brett Bellmore:

Growing pot, like growing wheat, is an economic activity.


I suppose then, that pot growing in the wild must be an example of an economic activity taking place in the complete absence of human involvement? Please! By definition, economic activity has to involve interaction with a second person, and you don't need to interact with other people to grow pot, you could do it as a castaway on an otherwise deserted island.

Don't bother trying to make Wickard or Raich seem like they represent reason, rather than rationalization.
4.21.2008 8:08pm
Nunzio:
Lopez summary of Commerce Clause says Congress commerce power covers regulation of (1) channels of interstate commerce; (2) instrumentalities and (3) economic activities that, in the aggregate, have a substantial affect on interstate commerce.

Doesn't moving across state lines in 99% of the cases involve the channels of interstate commerce. I suppose there could be some underground railroad for sex offenders where they just cross state lines through the fields with their belongings held in a bandana tied around a long wooden stick laid across their shoulder, but this seems unlikely enough to make the statute facially constitutional.

Perhaps there is an as applied challenge for those who leg it the whole journey.
4.21.2008 9:38pm
Nick B (mail):
The bar set for the commerce clause is set so low as to be next to impossible to hit. I'd love to see any court decide that the commerce clause was a limitation rather than a universe sized grant to regulate anything and everything that might impact anything that might impact interstate commerce, but I just don't see it happening.
4.22.2008 1:42pm
hattio1:
Nick B,
Try Morrison, Lopez and the district court case cited to here (Powers?). Reading comprehension is your friend.
4.22.2008 3:46pm