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: