S.D.Fla.: Fourth court holds registration law violates Commerce Clause

A Florida federal district court was the fourth to hold criminal penalties under the Sex Offender Registration and Notification Act (SORNA) unconstitutional under the Commerce Clause.

    In a lengthy and far-reaching opinion, the court held that purported commerce legislation receives rational-basis review only when it is part of a comprehensive regulation of interstate commerce. It also held that when Congress expressly invokes its power to regulate the movement of people or things “in interstate commerce,” legislation cannot be analyzed under the broader “substantial effects” test. Finally, it held that SORNA’s criminal penalty was invalid because Congress cannot criminalize purely local, non-economic activity solely on the basis of the defendant’s unrelated past travel across state lines. United States v. Myers, 2008 WL 5156671 (S.D. Fla. Dec. 9, 2008) (No. 08-60064).

 

      Myers was charged with failing to register under SORNA after traveling out of state to visit his mother. 42 U.S.C. § 16913 requires all persons convicted of sex offenses to maintain a current registration as a sex offender. 18 U.S.C. § 2250 makes it a crime to fail to maintain registration and travel in interstate commerce. To date, two circuits and over eighty district courts have upheld SORNA. United States v. May, 535 F.3d 912 (8th Cir. 2008); U.S. v. Hinckley, --- F.3d ----, 2008 WL 5146353, (10th Cir. Dec. 8, 2008); Annotation, Validity, Construction, and Application of SORNA, 30 A.L.R. Fed.2d 213, § 18 (2008) (collecting cases); see also Corey Rayburn Yung, One of These Laws is Not Like the Others, 46 Harv. J. on Legis. (forthcoming 2009), available at http://ssrn.com/abstract=1193871 (criticizing these decisions). Three district courts have held SORNA unconstitutional under varying rationales. United States v. Powers, 544 F.Supp.2d 1331 (M.D. Fla. 2008) (on appeal to the Eleventh Circuit); United States v. Waybright, 561 F.Supp.2d 1154 (D. Mont. 2008) (summary here); United States v. Guzman, --- F.Supp.2d ----, 2008 WL 4601446 (N.D.N.Y. 2008); U.S. v. Hall, 577 F. Supp. 2d 610 (N.D.N.Y. 2008) (summary here), on reconsideration, 2008 WL 5087157 (N.D. N.Y. 2008). This law could well occasion the Supreme Court’s next foray into Commerce Clause doctrine.

 

          Judge Zloch provides an extensive history of the Supreme Court’s Commerce Clause cases, with the overall theme that the Court “has drifted far from the original understanding of the Commerce Clause.” United States v. Lopez, 514 U.S. at 584 (Thomas, J., concurring). He then writes that “Hope is not lost,” and goes on to describe Lopez (striking down Gun-Free School Zones Act) and United States v. Morrison, 529 U.S. 598 (2000) (striking down civil remedy provision of Violence Against Women Act). Zloch states that Gonzalez v. Raich, 545 U.S. 1 (2005) (upholding application of Controlled Substances to intrastate marijuana production), “muddied the waters of Lopez and Morrison.” However, Zloch takes the view that Raich’s rational-basis standard applies only to “congressional regulation of intrastate, non-economic actions that may affect a larger economic regulatory scheme,” and is inapplicable to regulation of “local, non-economic activity that is not part of a comprehensive regulation of interstate commerce.”

 

Even if Raich applied to this case, Zloch writes, SORNA is not a comprehensive regulation of an interstate market; there is no market for the personal data of sex offenders (particularly since SORNA requires that this data be publicly available). And even assuming it may be analyzed as part of the broader Adam Walsh Act Child Protection and Safety Act of which it was a part, Zloch wrote that the registration provision has no rational connection to comprehensive regulation of a market in child pornography, which was the main purpose of the broader Act. Alternatively, analyzing the registration provision under Lopez/Morrison, Zloch found that it fails Morrison’s four-factor test: its subject matter is not economic, it has no jurisdictional element relating to commerce, is supported by no congressional findings, and has no link at all to interstate commerce.

 

Even if the registration provision were valid, Zloch continued, SORNA’s criminal penalty provision is not a valid regulation of persons moving in interstate commerce. When Congress specifically invokes its power to regulate “travel in interstate commerce,” the judge reasoned, the legislation cannot be analyzed under the broader “substantial effects” test. Accordingly, the judge faulted both the courts upholding and the other courts striking down SORNA for analyzing it under “substantial effects,” when Congress spoke of movement “in interstate commerce.”

 

(This reasoning is analogous to the Court’s reasoning in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, where it said that since Congress “was so explicit invoking” its commerce and Fourteenth Amendment powers to pass a patent law, “this omission preclude[d] consideration of the Just Compensation Clause as a basis for the [law].” 527 U.S. 627, 642 n. 7 (1999).)

 

SORNA’s criminal penalty is not a proper exercise of the power over things moving interstate commerce, Zloch said, because it does not regulate interstate travel itself, but rather punishes defendant’s failure to register, “regardless of when he traveled across state lines or for what purpose.” Zloch compared this case to United States v. Five Gambling Devices, 346 U.S. 441 (1953). There, the Court avoided the Commerce Clause by interpreting the relevant statute as applying only to interstate activities. However, Justice Jackson’s plurality opinion stated: “No precedent of this Court sustains the power of Congress to enact legislation penalizing failure to report information concerning acts not shown to be in, or mingled with, or found to affect commerce.” Zloch reasoned that upholding SORNA would require such a precedent.

 

          Zloch recognized that Scarborough v. United States, 431 U.S. 563 (1977), and progeny applied a “minimal nexus” test to criminal regulation of guns, cars and other items moving in interstate commerce. However, Zloch argued that the “minimal nexus” test is inconsistent with the rest of the Court’s Commerce Clause jurisprudence and only had been and should be applied to things, rather than persons.  “Extending Scarborough’s ‘minimal nexus’ test to a defendant's person is an exceedingly dangerous proposition,” he said, “because it undermines our deeply entrenched principles of federalism,” and would make “hogwash” of the proposition that “Congress cannot punish felonies generally.”

 

Accordingly, Zloch concluded that Congress “may not attach regulations on a person simply because he has once innocently availed himself of his constitutional right to travel through the channels of interstate commerce.” Because SORNA’s criminal penalty depends on local activity unrelated to the defendant’s interstate travel, the court held it unconstitutional.