N.D.N.Y.: Sex offender law violates Commerce Clause

A third federal district court has held that the Sex Offender Registration and Notification Act (SORNA) exceeds Congress’s powers under the Commerce Clause.

The court held that while the Act’s criminal penalty provision contained a sufficient jurisdictional element. However, it further held that the underlying federal duty to register lacked such a federal element and regulated purely non-economic, intrastate activity. U.S. v. Hall, --- F.Supp.2d ---, 2008 WL 4307196 (N.D.N.Y. Sep. 23, 2008) (No. 5:08-CR-174).

 

          SORNA requires all persons convicted of state or federal sex offenses to maintain a current registration in each jurisdiction where they live, work, or go to school. 42 U.S.C. § 16913(a). Persons who fail to do so and who travel in interstate commerce may be prosecuted under 18 U.S.C. § 2250(a). Two district courts have previously rejected these prosecutions on constitutional grounds. U.S. v. Waybright, --- F.Supp.2d ---, 561 F.Supp.2d 1154 (D. Mont. June 11, 2008) (summary here); U.S. v. Powers, 544 F.Supp.2d 1331 (M.D. Fla. Apr. 18, 2008). See generally David L. Hudson, Crime Registries Under Fire, ABA Journal Sep. 2008. Powers will be heard by the Eleventh Circuit, and SORNA may eventually provide the Supreme Court with its next Commerce Clause case.

 

          The Hall court held that § 16913(a) fails under U.S. v. Lopez, 514 U.S. 549 (1995), because it “confers a duty upon all sex offenders, regardless of whether they travel in interstate commerce or whether convicted of state or federal sex offenses.” Like the gun law struck down in Lopez, § 16913(a) concerns purely non-economic economic activity, i.e. criminal convictions and failure to maintain current sex offender registration. Therefore, even if Congress had made findings regarding effects on interstate commerce – which it did not – the connection of this activity to interstate commerce is simply too attenuated.

 

The court recognized that, by itself, § 2250(a) appears to pass muster under the Commerce Clause because liability is triggered by travelling in interstate commerce. However, the judge nevertheless dismissed the indictment because it was necessarily premised on failure to comply with § 16913(a). Accordingly, since “a statute may not be given effect if it is predicated upon another statute improperly enacted by Congress,” the court’s holding that § 16913(a) is unconstitutional required dismissal of the indictment.

 

            The court also disagreed with, U.S. v. Cardenas, 2007 WL 4245913 (S.D.Fla 2007), which held that § 16913(a) is a valid exercise of Congress’s spending power. This cannot be, said the Hall court, because (1) SORNA applies to sex offenders regardless of whether states actually implement its requirements, and more importantly (2) the provision imposes a duty to register on individuals rather than states, whereas valid spending conditions only bind recipients of federal funds.