SORNA - Sex Offender Registration and Notification Act

Two provisions are challenged:

1) All sex offenders must register and update their registration even if convicted of state sex offenses and even if they never travel in interstate commerce.  Updates to the registry where an offender resides must occur within 3 days and are triggered by any name change, chance of residence (even a local one), change of job (even a local one) and change of student status (even if local).
(2) Sex offenders who fail to register or update can be punished if convicted of a federal sex offense or convicted of a state sex offense and have traveled in interstate commerce.

Hypothetical Problem:

Assume that the constitutionality of SORNA is being reviewed by the United States Supreme Court. The Court has agreed to consider whether SORNA is an unconstitutional exercise of Congress’s power to regulate interstate commerce. What arguments can be made by the federal government in support of the statute as a constitutional exercise of the power to regulate interstate commerce and what arguments can be made by the defendant to argue that the statute exceeds the scope of Congress’s power to regulate interstate commerce?

A.  Arguments made by the federal government in defense of the statute:

1.  SORNA falls within Congress’s power to protect interstate commerce from threats that are both interstate and intrastate (category 2).  The statute protects interstate commerce from being used to spread the harm of unregistered sex offenders to other states by punishing sex offenders who have traveled in interstate commerce and who have failed to register or update their registration.

2.  Even if the statute is viewed as falling within category 3 (regulation of local activity that has a substantial economic effect on interstate commerce), it can be upheld on the authority of Raich, Wickard, and Darby.  The statute, in its entirety, is a comprehensive scheme that addresses a national and not a local problem - the presence of unregistered sex offenders.  The scheme includes a registration requirement for sex offenders, an enforcement provision against federal sex offenders as well as sex offenders who have traveled in interstate commerce, and the creation of a national database of sex offenders so it will be easier to track sex offenders across state lines. The purpose of the comprehensive regulatory scheme is to help states to track sex offenders who have crossed state lines and keep track of where they work, live, and go to school.  The statute, like the statute in Darby, is designed to prevent interstate commerce from being used to spread the evil of unregistered sex offenders to other states.  

3.  The statute addresses a problem that states are unable to regulate on their own and therefore does not intrude on an area of traditional state regulation.  All states have created sex offender registries to protect their citizens. However, states have no authority over sex offenders once they leave the state and travel to another state. This means that interstate commerce is used to spread the evil of unregistered sex offenders and states are powerless to correct this problem by themselves. This is exactly the type of situation where the framers intended Congress to be able to intervene.  The federal government is assisting the states in the enforcement of registration laws that states are powerless to enforce on their own. This federal law fills in this gap and imposes an obligation to update registration information so that sex offenders do not disappear off the grid and show up in another state where they have no criminal record and are unregistered.

4.  Even if the statute is viewed as the regulation of a local non-economic activity under Lopez, the statute is still constitutional because it contains a jurisdictional element. The broad registration requirement is only enforced against state sex offenders who travel in interstate commerce. This jurisdictional element links the regulated behavior directly to interstate commerce.  This was the kind of element that was lacking in Lopez and Morrison.

5.  Even if SORNA does not fall within the commerce power, it is constitutional under the Necessary and Proper Clause as a means to the end of regulating interstate activity. The interstate activity is monitoring sex offenders who cross state lines. Requiring registration of all sex offenders is a means to the end of punishing sex offenders who cross state lines and fail to update their registration.

B.  Arguments by defendant for unconstitutionality of statute:

1.  The statute regulates local activity - the registration of sex offenders - thus falling with category 3 as described in Lopez.  Moreover, the statute regulates noneconomic local activity, the presence of unregistered sex offenders or the registration of those offenders.  This activity is not commercial activity.  Since the activity being regulated is local noneconomic activity, the Court should be vigilant in making sure Congress doesn’t overstep the bounds of its power.

2. Applying the Lopez factors, in addition to the activity being noneconomic, the statute contains no specific findings tying the failure to register to an effect on interstate commerce.  The only links between failure to register and an effect on interstate commerce are too attenuated because demonstrating a connection relies on the same kind of attenuated costs of crime or lower economic productivity arguments that were unsuccessful in Lopez and Morrison.  Moreover, while the statute appears to contain a jurisdictional element, that element does not effectively limit the reach of congressional power and, therefore, does not save the statute from being declared unconstitutional.

3.  The enforcement provision is itself constitutionally deficient because it applies whenever a sex offender travels in interstate commerce.  This is not the kind of jurisdictional element that the Court in Lopez concluded could save a statute from being unconstitutional.  The requirement does not condition federal jurisdiction on when or for what purpose the sex offender travels; whether it is a temporary shopping trip, a vacation, or to relocate to a new state; or whether it precedes the commission of a sex offense or follows it.  Accepting this rationale would mean the government could regulate every aspect of a person’s existence so long as they once travel in interstate commerce.  In Lopez itself, it would mean that gun possession in a school zone would be constitutional if the defendant had traveled in interstate commerce without a gun and for lawful purposes at some point prior to his being arrested with the gun in a school zone.  On this same rationale, the federal government could regulate the marriage and divorce of persons who have traveled in interstate commerce.  This would in effect give Congress a limitless authority over noneconomic local activities, including those traditionally regulated by the states.

4. Registration of sex offenders who commit state crimes is a matter traditionally left to the states and the Court should be vigilant not to allow Congress to intrude in this area.

5.  SORNA is not the kind of comprehensive regulatory scheme upheld in Raich. The heart of the scheme is the requirement that all sex offenders register (whether they are connected to interstate commerce or not).  The only remaining elements of the scheme are enforcement provisions.  No aspect of the statute regulates any economic activity (unlike in Raich where the statute also regulated the sale of marijuana) and so the argument that the registration of sex offenders is part of a class of activities that Congress can regulate is not available.

6.  Even if the enforcement provision is constitutional viewed on its own because it contains a jurisdictional element, the registration provision is not constitutional.  This is not a comprehensive scheme where nontraveling sex offenders who fail to register are part of a class of activities (all sex offenders) Congress can regulate.  Congress has no authority over the larger class of all sex offenders.  The core provision of SORNA is the registration provision; it is the heart of the statute.  The enforcement provision just imposes a penalty for nonregistration so the penalty provision cannot be used to validate an otherwise invalid regulatory scheme.  In addition, the penalty provision punishes violations of the registration provision.  If the registration provision is unconstitutional, the penalty provision (which depends on a violation of the registration provision) is also unconstitutional.

7.  The Necessary and Proper Clause cannot be used to uphold SORNA.  SORNA is not a means adapted to a commerce clause end.  SORNA does not assist in enforcing any regulation of interstate commercial activities by also regulating its intrastate equivalent.