Congress Has No Power to Regulate Traveling in Interstate Commerce By Unregistered Sex Offenders, District Court Judge Holds:
On Friday, District Judge Gregory Presnell
in Orlando handed down United States v. Powers
, a decision striking down part of the Adam Walsh Child Protection and Safety Act of 2006 on Commerce Clause grounds. In relevant part, the Act requires state sex offenders to register if they travel out of state. Specifically, a state sex offender who "travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and [who] knowingly fails to register" with the sex offender registry can be charged with a crime. 18 U.S.C. § 2250(a).
In his opinion, Judge Presnell concludes that Congress has no power to regulate traveling in interstate commerce like this:
Here, we are clearly not dealing with the regulation of channels or instrumentalities of commerce. Nor are we dealing with the regulation of persons or things in interstate commerce. This is not a case where the interstate travel is intended to further the crime itself, such that a case by case determination can be made as to whether there is a sufficient nexus between the crime and interstate commerce.
According to Judge Presnell, the law fails the third prong of Lopez, too:
Unlike the statutes at issue in Lopez and Morrison, § 2250(a) does contain a "jurisdictional element" which purports to establish a link between the failure to register as a sex offender and interstate commerce. The government contends that this language lends support to the argument that § 2250(a) is sufficiently tied to interstate commerce. Upon close examination, however, it becomes apparent that this supposed link is superficial and insufficient to support a finding of substantial affect on interstate commerce.
The Commerce Clause, and the case law interpreting its limits, require more than statutory “lip service” to interstate commerce. . . . [T]he statute does not become applicable to an individual until after that person has completed his or her interstate travel. And it applies to persons who have engaged in interstate travel regardless of how legitimate their reasons for such travel may have been. The mere fact that the individual has, at some point, traveled in interstate commerce does not establish that his or her subsequent failure to register “substantially affects interstate commerce.” Simply put, there is no nexus between the crime (failure to register) and the interstate travel.
I am not a Commerce Clause expert, but isn't this pretty clearly wrong under prevailing precedents? I have no views about the merits of this law, but it seems to me that the law pretty directly regulates traveling in interstate commerce: Specifically, it directly prohibits such traveling by state sex offenders who have not registered.
Judge Presnell works around this by quarantining the "travel in interstate commerce" requirement and then asking whether the leftover condition
on traveling in interstate commerce itself
affects interstate commerce. But I don't think you can do that. The issue is whether Congress is regulating interstate commerce, not whether its chosen criteria for regulating interstate commerce themselves have an independent nexus to interstate commerce.
Based on past experience, I should state at the outset for the VC commenting community that: (a) No, this is not some veiled commentary in support of the law, (b) No, this is not an endorsement of modern Commerce Clause doctrine, (c) No, I don't really have views on the merits of sex offender registries more generally, (d) No, I don't know if Judge Presnell hires lots of clerks from Yale. My interest here is just on whether Judge Presnell's decision striking down the law is correct given the current state of binding precedent. Incidentally, if you're interested in some of Judge Presnell's past appearances here at the VC, check out here
. And thanks to Sentencing Law & Policy
for the link.
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.
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.