N.D.N.Y.: Another Commerce Clause ruling against SORNA

The New York district court that recently declared the Sex Offender Registration and Notification Act (SORNA) unconstitutional rejected additional arguments made in support of the law in another case.

The court held that SORNA’s registration provision could not be upheld on the basis that it regulated intrastate activity with a substantial interstate effect, or on the basis of the Necessary and Proper Clause. It also held that any person charged under SORNA may raise its unconstitutionality. U.S. v. Guzman, --- F.Supp.2d ---, 2008 WL 4601446  (N.D.N.Y. Oct. 17, 2008) (No. 5:08-CR-409).

 

          In United States v. Hall, --- F.Supp.2d ----, 2008 WL 4307196, (N.D.N.Y. Sep. 23, 2008) (summary here), Judge David Hurd ruled that 42 U.S.C. § 16913(a) improperly regulates purely intrastate, noneconomic activity; that it is not a valid use of Congress’s spending power because it regulates private individuals; and that Hall could not be charged under 18 U.S.C. § 2250(a) with travelling in interstate commerce while failing register because the charge was based on the underlying duty in § 16913(a). See also David L. Hudson, Crime Registries Under Fire, ABA Journal Sep. 2008.

 

          The court now rejects the additional argument that maintaining a national sex offender registry reduces fears of crime that substantially effect interstate commerce. This is simply too similar, the court said, to the “cost of crime” argument rejected in U.S. v. Lopez, 514 U.S. 549 (1995). The court noted that in upholding a ban on intrastate production of marijuana, Gonzalez v. Raich, 545 U.S. 1 (2005), “the Supreme Court exerted considerable effort” to distinguish Lopez on the basis that it concerned noneconomic criminal activity. Additionally, § 16913(a) lacks any federal jurisdictional element; is not supported by any congressional findings on interstate effects; and “has too tenuous a connection to a substantial effect upon interstate commerce.”

          The court observed that provisions insupportable under the Commerce Clause alone may be valid under the Necessary and Proper Clause if they are “a necessary part of a more general regulation of interstate commerce.” Raich, 545 U.S. at 37 (Scalia, J., concurring). However, the court ruled that § 16913(a) was not reasonably adapted to achieving the overall scheme of SORNA, because (1) SORNA’s state purpose is “to track sex offenders at all times, regardless of whether they travel in interstate commerce,” and such a broad purpose is itself unconstitutional; and (2) Congress’s use of an interstate-travel “hook” in § 2250(a) suggests that Congress neither needs nor believes it has the authority to require registration by all sex offenders at all times.

 

          Finally, the court held that the defendant was not barred from challenging SORNA’s constitutionality, despite the fact that he did travel in interstate commerce. Because § 16913(a) is unconstitutional on its face, and because any charge under § 2250(a) is predicated on a violation of § 16913(a), any defendant may raise its unconstitutionality.