United States v. Anthony Kebodeaux , 687 F.3d 232 ( 2012 )

Case: 08-51185 Document: 00511912749 Page: 1 Date Filed: 07/06/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 6, 2012
No. 08-51185
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY JAMES KEBODEAUX, Also Known as Anthony Kebodeaux,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
Before JONES, Chief Judge, KING, JOLLY, DAVIS, SMITH, GARZA,
BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN, ELROD,
SOUTHWICK, HAYNES, and GRAVES, Circuit Judges.*
JERRY E. SMITH, Circuit Judge:
Anthony Kebodeaux, a federal sex offender, was convicted, under the Sex
Offender Registration and Notification Act (“SORNA”), of failing to update his
*
Judge Higginson was not a member of the court when this case was submitted to the
court en banc and did not participate in this decision.
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No. 08-51185
change of address when he moved intrastate. A panel of this court affirmed.
United States v. Kebodeaux, 647 F.3d 137 (5th Cir. 2011). The panel majority
rejected Kebodeaux’s argument that Congress does not have the power to crim-
inalize his failure to register because it cannot constitutionally reassert jurisdic-
tion over his intrastate activities after his unconditional release from federal
custody. Judge Dennis concurred in the judgment and assigned lengthy reasons,
urging that SORNA is authorized by the Commerce Clause. The panel opinion
was vacated by our decision to rehear the case en banc. United States v. Kebo-
deaux, 647 F. 3d 605 (5th Cir. 2011). Because we agree with Kebodeaux that,
under the specific and limited facts of this case, his commission of a federal
crime is an insufficient basis for Congress to assert unending criminal authority
over him, we reverse and render a judgment of dismissal.
I.
While in the military, Kebodeaux had consensual sex with a fifteen-year-
old when he was twenty-one and was sentenced in 1999 to three months in
prison. He fully served that sentence, and the federal government severed all
ties with him. He was no longer in federal custody, in the military, under any
sort of supervised release or parole, or in any other special relationship with the
federal government when Congress enacted a statute that, as interpreted by the
Attorney General, required Kebodeaux to register as a sex offender.1 When he
1
See 42 U.S.C. § 16913 (2006) (requiring a sex offender to register in each jurisdiction
in which he resides and to update that registration); 28 C.F.R. § 72.3 (2007) (specifying that
§ 16913’s requirements apply to all sex offenders, “including sex offenders convicted of the
offense for which registration is required prior to the enactment of [§ 16913]”). Because Kebo-
deaux committed his offense before SORNA’s passage, his duty to register comes from the
Attorney General’s regulation rather than the statute itself. Reynolds v. United States,
132 S. Ct. 975, 984 (2012). Despite the fact that the Attorney General did not follow the proce-
dures laid out in the Administrative Procedure Act when issuing the regulation, we found that
to be harmless error as applied to a defendant who had moved interstate but was otherwise
(continued...)
2
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failed to update his state registration within three days of moving from San
Antonio to El Paso, he was convicted under 18 U.S.C. § 2250(a) (also enacted in
2006) and sentenced to a year and a day in prison.
Kebodeaux argues that § 2250(a)(2)(A) and the registration requirements
that it enforces are unconstitutional as applied to him, because they exceed the
constitutional powers of the United States. He is correct: Absent some jurisdic-
tional hook not present here, Congress has no Article I power to require a former
federal sex offender to register an intrastate change of address after he has
served his sentence and has already been unconditionally released from prison
and the military.2
The federal requirement that sex offenders register their address is uncon-
stitutional on narrow grounds. We do not call into question Congress’s ability
to impose conditions on a prisoner’s release from custody, including require-
ments that sex offenders register intrastate changes of address after release.
After the federal government has unconditionally let a person free, however, the
fact that he once committed a crime is not a jurisdictional basis for subsequent
regulation and possible criminal prosecution. Some other jurisdictional ground,
such as interstate travel, is required.3
1
(...continued)
in substantially the same situation as is Kebodeaux. United States v. Johnson, 632 F.3d 912,
931-32 (5th Cir.), cert. denied, 132 S. Ct. 135 (2011). Although the rule may be valid as applied
to a sex offender who moves interstate, the portion of the statute that gives the Attorney Gen-
eral the authority to apply SORNA to pre-act offenders who move intrastate would not be valid
if Congress does not have the power under Article I to apply the statute to pre-act sex offend-
ers. Therefore, our analysis focuses on whether Congress had that authority that it attempted
to grant to the Attorney General.
2
Cf. 18 U.S.C. § 2250(a)(2)(B) (criminalizing state sex offenders’ failure to register or
update registration if they travel in interstate commerce).
3
Thus, even with respect to past federal sex offenders such as Kebodeaux, Congress
presumably could remedy the constitutional problem merely by adding an element of inter-
state travel to the crime of failing to register. Because it is not before us, however, we make
(continued...)
3
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This finding of unconstitutionality therefore does not affect the registra-
tion requirements for (1) any federal sex offender who was in prison or on super-
vised release when the statute was enacted in 2006 or (2) any federal sex
offender convicted since then. Instead, it applies only to those federal sex
offenders whom the government deemed capable of being unconditionally
released from its jurisdiction before SORNA’s passage in 2006.4 Moreover, even
as to those sex offenders, it means only that Congress could treat them exactly
as all state sex offenders already are treated under federal law. It also has no
impact on state regulation of sex offenders.
3
(...continued)
no ruling on that speculative issue.
4
In her well-written dissent, Judge Haynes disputes that the federal government
unconditionally released Kebodeaux from its jurisdiction upon his release from custody. Citing
the Wetterling Act of 1994, as amended by the Lychner Act of 1996, 42 U.S.C. §§ 14071-14073,
repealed by SORNA Pub. L. No. 109-248, § 129, 120 Stat. 587, 600 (2006), the dissent argues
that Kebodeaux has been subject to federal registration ever since his 1999 conviction. But
that notion overlooks a fundamental difference between SORNA and its predecessors.
Although SORNA directly imposes a registration requirement on covered sex offenders,
see § 16913(a), pre-SORNA federal law merely conditioned federal funding on states’
maintaining their own sex-offender registries that were compliant with federal guidelines, see
§ 14071(g) (2000) (repealed by SORNA). Only sex offenders residing in non-compliant states
were subject to federal registration for intrastate changes in residence. See § 14072-
(g)(1)-(3), (i) (2000) (repealed by SORNA).
Because his state of residence, Texas, was compliant with federal guidelines at the time
of his offense, Kebodeaux was not subject to federal registration requirements. See Creekmore
v. Attorney Gen. of Tex., 341 F. Supp. 2d 648, 654 (E.D. Tex. 2004) (observing that Texas
enacted its registry in 1991 and amended it “four times: in 1993, 1995, 1997, and 1999 to
ensure that the program met minimum federal requirements” (citations omitted)); Creekmore
v. Attorney Gen. of Tex., 116 F. Supp. 2d 767, 773 (E.D. Tex. 2000) (noting that Texas’s regis-
tration program was “federally-approved”); Wayne A. Logan, Sex Offender Registration and
Community Notification: Past, Present, and Future, 34 NEW ENG. J. ON CRIM. & CIV. CONFINE-
MENT 3, 6 (2008) (observing that all fifty states and the District of Columbia had complied with
the Wetterling Act by the end of 1996). Thus, before the passage of SORNA, Kebodeaux was
subject only to state, not federal, registration obligations.
4
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II.
SORNA says, in relevant part, that “[a] sex offender shall register, and
keep the registration current, in each jurisdiction where the offender resides,
where the offender is an employee, and where the offender is a student.”5 Those
requirements are made applicable to former federal sex offenders via 42 U.S.C.
§ 16913(d) and 28 C.F.R. § 72.3.6 SORNA then includes the following criminal
provision:
WhoeverSS
(1) is required to register under [SORNA];
(2) (A) is a sex offender as defined for the purposes of
[SORNA] by reason of a conviction under Federal law
. . .; or
(B) travels in interstate or foreign commerce . . . ; and
(3) knowingly fails to register or update a registration as
required by [SORNA];
shall be fined under this title or imprisoned not more than 10 years,
or both.
18 U.S.C. § 2250(a). Kebodeaux argues that Congress has no authority under
Article I to subject him to conviction pursuant to § 2250(a)(2)(A). The govern-
ment, on the other hand, maintains that its power to criminalize the conduct for
which Kebodeaux was originally convicted includes the authority to regulate his
movement even after his sentence has expired and he has been unconditionally
released.
5
42 U.S.C. § 16913(a). In addition, “[f]or initial registration purposes only, a sex
offender shall also register in the jurisdiction in which convicted if such jurisdiction is different
from the jurisdiction of residence.” Id. A registration must be updated within three days of
any change. § 16913(c).
6
See § 16913(d) (“The Attorney General shall have the authority to specify the applica-
bility of the requirements of this subchapter to sex offenders convicted before the enactment
of this chapter . . . and to prescribe rules for the registration of any such sex offenders
. . . .”); 28 C.F.R. § 72.3 (specifying that § 16913’s requirements apply to all sex offenders,
“including sex offenders convicted of the offense for which registration is required prior to the
enactment of that Act”).
5
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The most analogous Supreme Court decision is United States v. Comstock,
130 S. Ct. 1949, 1954 (2010), in which the Court examined whether Congress has
the Article I power to enact a civil-commitment statute that authorizes the
Department of Justice to detain mentally ill, sexually dangerous federal prison-
ers beyond when they would otherwise be released. The Court upheld that stat-
ute on narrow grounds because of “five considerations, taken together.” Id.
at 1956, 1965.
Kebodeaux’s facts go beyond those in Comstock, however, because this case
is not merely about whether Congress can regulate the activity of someone still
in federal custody past the expiry of his sentence. Importantly, it raises the fur-
ther question whether Congress can regulate his activity solely because he was
once convicted of a federal crime. The “considerations” that the Court found
important in Comstock are not expansive enough to subject Kebodeaux to federal
criminal sanctions under the unusual circumstances that he presents.
A.
First, the Comstock Court explained, and the panel majority here stressed,
that Congress has broad authority to enact legislation under the Necessary and
Proper Clause. Id. at 1956. Thus, to be constitutional under that clause, a stat-
ute must constitute a means that is “rationally related”7 or “reasonably
adapted”8 to an enumerated power. Congress has “a large discretion” as to the
choice of means, id. at 1957 (quoting Lottery Case, 188 U.S. 321, 355 (1903)), and
we apply a “presumption of constitutionality” to its enactments, id. (quoting
7
Comstock, 130 S. Ct. at 1956-57 (citing Gonzales v. Raich, 545 U.S. 1, 22 (2005); Sabri
v. United States, 541 U.S. 600, 605 (2004); United States v. Lopez, 514 U.S. 549, 557 (1995);
Hodel v. Va. Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 276 (1981)).
8
Comstock, 130 S. Ct. at 1957 (quoting Raich, 545 U.S. at 37) (Scalia, J., concurring in
the judgment); United States v. Darby, 312 U.S. 100, 121 (1941).
6
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United States v. Morrison, 529 U.S. 598, 607 (2000)). This first factor is not fact-
specific; it suggests that the analysis always starts with a heavy thumb on the
scale in favor of upholding government action.9
We must take care not to misunderstand the use of the words “rationally
related” as implying that the Necessary and Proper Clause test is akin to ration-
al-basis scrutiny under the Due Process and Equal Protection Clauses.10 That
would mean that federal action would be upheld so long as there is merely a
conceivable rational relationship between an enumerated power and the action
in question.11 But that would be inconsistent with both the Court’s Commerce
Clause jurisprudence12 and Comstock, which held that 18 U.S.C. § 4248 is
9
Although the panel majority was correct that there is a presumption of constitutional-
ity, it is troubling that it engaged in an extended discussion of all the different constitutional
challenges against which SORNA has been upheld, as though those instances somehow make
it more likely that Kebodeaux’s constitutional challenge fails. That courts have upheld the
five-year-old statute against an ex post facto challenge, a due process challenge, a non-
delegation challenge, and a Commerce Clause challenge to a clause that explicitly is limited
to persons traveling in interstate commerce does not suggest that we must uphold this SORNA
provision against this challenge.
10
See Comstock, 130 S. Ct. at 1966 (Kennedy, J., concurring in the judgment) (“This
Court has not held that the [Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 487-88
(1955),] test, asking if ‘it might be thought that the particular legislative measure was a
rational way to correct’ an evil, is the proper test in this context. . . . Indeed, the cases the
Court cites in the portion of its opinion referring to ‘rational basis’ are predominantly Com-
merce Clause cases, and none are due process cases.”).
11
See id. (Kennedy, J., concurring in the judgment) (explaining that rational-basis scru-
tiny under the Due Process Clause requires asking whether “‘it might be thought that the par-
ticular legislative measure was a rational way to correct’ an evil” (quoting Lee Optical, 348
U.S. at 487-88)).
12
See id. at 1967 (Kennedy, J., concurring in the judgment) (“[The Court’s Commerce
Clause] precedents require a tangible link to commerce, not a mere conceivable rational rela-
tion, as in Lee Optical.”). For example, in Morrison the Court struck down a civil remedy for
violence against women under the Commerce Clause despite copious evidence that such vio-
lence had a substantial effect on (and thus was conceivably rationally related to) interstate
commerce. See Morrison, 529 U.S. at 615 (finding statute unconstitutional because, “[i]f
accepted, petitioners’ reasoning would allow Congress to regulate any crime as long as the
nationwide, aggregated impact of that crime has substantial effects on employment, produc-
(continued...)
7
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constitutional because of “five considerations, taken together,” only one of which
involves “the sound reasons for the statute’s enactment in light of the Govern-
ment’s [legitimate interest].”13 Thus, unless this court were to hold that the
other “considerations” in Comstock were entirely superfluous, it follows that,
although our analysis begins with great deference to constitutionality, we should
not confuse it with Due Process Clause rational-basis scrutiny.
B.
The second factor in Comstock, 130 S. Ct. at 1958, is that the civil-
commitment statute at issue was but “a modest addition to a set of federal
prison-related mental-health statutes that have existed for many decades.” Al-
though “even a longstanding history of related federal action does not demon-
strate a statute’s constitutionality,” id. (citing Walz v. Tax Comm’n of N.Y., 397
U.S. 664, 678 (1970)), it expands the deference afforded to a statute.14 Con-
versely, the absence of an historical analog reduces that deference.15
12
(...continued)
tion, transit, or consumption”); id. at 628-29 (Souter, J., dissenting) (discussing the “mountain
of data assembled by Congress . . . showing the effects of violence against women on interstate
commerce”). So, plainly, more is required.
13
Comstock, 130 S. Ct. at 1965. For example, the Comstock Court also relied on the fact
that the statute was “narrowly tailored” or “narrow [in] scope,” id., an analysis that is not
necessary to uphold a law under rational-basis scrutiny under the Due Process or Equal Pro-
tection Clause, see, e.g., Lee Optical, 348 U.S. at 487-88.
14
Cf. Walz, 397 U.S. at 678 (“‘If a thing has been practised for two hundred years by
common consent, it will need a strong case for the Fourteenth Amendment to affect it. . . .’”
(quoting Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922))).
15
Va. Office for Prot. & Advocacy v. Stewart, 131 S. Ct. 1632, 1641 (2011) (“Respondents
rightly observe that federal courts have not often encountered lawsuits brought by state
agencies against other state officials. That does give us pause. Lack of historical precedent
can indicate a constitutional infirmity . . .” (citing Free Enter. Fund v. Pub. Co. Accounting
Oversight Bd., 130 S. Ct. 3138, 3159 (2010))); Free Enter. Fund, 130 S. Ct. at 3159 (“Perhaps
the most telling indication of the severe constitutional problem with the PCAOB is the lack
(continued...)
8
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SORNA’s sex-offender-registration requirements have a short history:
They have existed only since 2006, and federal law relating to sex-offender regis-
tration only since 1994.16 The government admits that federal sex-offender reg-
istration laws are of “relatively recent vintage” but urges that they should be
analogized to probation or supervised-release laws, which have a longer
pedigree.
There is, however, a big difference between SORNA’s sex-offender-regis-
tration requirements and probation or supervised releaseSSa distinction that
goes to the heart of this case. Unlike the situation involving probation or super-
vised release, SORNA’s sex-offender-registration requirements (and § 2250(a)-
(2)(A)’s penalties) were not a condition of Kebodeaux’s release from prison, let
alone a punishment for his crime.17
The Department of Justice cannot find a single authority, from more than
two hundred years of precedent, for the proposition that it can reassert jurisdic-
tion over someone it had long ago unconditionally released from custody just
because he once committed a federal crime. Thus, SORNA’s registration require-
ments for federal sex offenders are constitutionally novel, as the panel majority
conceded. This factor weighs against the government.
15
(...continued)
of historical precedent for this entity” (quoting Free Enter. Fund v. Pub. Co. Accounting Over-
sight Bd., 537 F.3d 667, 699 (D.C. Cir. 2008) (Kavanaugh, J., dissenting))).
16
See Carr v. United States, 130 S. Ct. 2229, 2232 (2010); Richard G. Wright, Sex
Offender Post-Incarceration Sanctions: Are There Any Limits?, 34 NEW ENG. J. ON CRIM. & CIV.
CONFINEMENT 17, 29-36 (2008) (discussing history of federal sex-offender-registration laws).
17
Every circuit, including ours, has held that, unlike probation or supervised release,
SORNA’s registration requirements are civil regulations whose purpose is not to punish for
crimes. See United States v. Young, 585 F.3d 199, 204 (5th Cir. 2009) (per curiam); cf. Smith
v. Doe, 538 U.S. 84, 101-02 (2003) (upholding Alaska’s sex-offender-registration statute against
ex post facto challenge and distinguishing it from probation and supervised release because
it is not a punishment).
9
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C.
This brings us to the third factor. That inquiry is whether Congress rea-
sonably extended its well-established laws by applying sex-offender-registration
requirements to someone long free from federal custody or supervision.18
1.
The government argues, and the panel majority held, that the statute is
reasonably adapted to Congress’s military powers. For that proposition, they
again rely on the analogy between sex-offender-registration requirements, on the
one hand, and supervised release and probation, on the other: Because the lat-
ter are constitutional, the former must be too, or so the argument goes.
But that theory obscures two crucial distinctions: First, as we have men-
tioned, SORNA’s registration requirements, unlike probation and supervised
release, are not a means to punish a sex offender for committing his crime19 but
instead are merely civil regulations.20 Indeed, they cannot serve any punitive
purpose in the case of Kebodeaux, because SORNA was enacted long after he
committed his crime. If SORNA’s registration requirements wereSSlike proba-
tion and supervised releaseSScriminal punishments, they would violate the
18
See Comstock, 130 S. Ct. at 1961 (explaining that the third factor is that “Congress
reasonably extended its longstanding civil-commitment system to cover mentally ill and sexu-
ally dangerous persons who are already in federal custody, even if doing so detains them
beyond the termination of their criminal sentence”).
19
See id. at 1979 n.12 (Thomas, J., dissenting) (referring to supervised release as a
“form of punishment”); United States v. Knights, 534 U.S. 112, 119 (2001) (“Probation, like
incarceration, is a ‘form of criminal sanction . . . .’” (quoting Griffin v. Wisconsin, 483 U.S. 868,
874 (1987))).
20
See Young, 585 F.3d at 204; see also Smith, 538 U.S. at 101 (explaining why Alaska’s
sex-offender-registration requirements are not, like probation and supervised release, forms
of punishment).
10
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Ex Post Facto Clause.21 But because SORNA’s registration requirements are
civil and were enacted after Kebodeaux committed his crime, the government
cannot justify their constitutionality on the ground that they merely punish
Kebodeaux for the crime he committed while in the military.22
Secondly, unlike SORNA’s registration requirements, probation and super-
vised release are conditions of release from (or instead of) custody.23 Like the
civil confinement statute at issue in Comstock, they are thus “reasonably
adapted . . . to Congress’ power to act as a responsible federal custodian” of its
prisoners, because they “avert the public danger likely to ensue from the release
of . . . detainees.” Comstock, 130 S. Ct. at 1961 (internal quotation marks and
citations omitted). By contrast, although § 2250(a) is surely meant to “avert . . .
public danger,” it is not, at least in cases such as Kebodeaux’s, from “the release
21
Young, 585 F.3d at 204; see also United States v. Caulfield, 634 F.3d 281, 283 (5th
Cir. 2011) (“The heart of the Ex Post Facto Clause bars application of a law that changes the
punishment, and inflicts a greater punishment, than the law annexed to the crime, when com-
mitted.” (quoting Johnson v. United States, 529 U.S. 694, 699 (2000))).
22
The panel majority inaccurately asserted that Kebodeaux conflates his Article I argu-
ment with an Ex-Post-Facto-Clause argument. In fact, his Article I contention works only
because § 2250(a)(2)(A) is not an ex post facto criminal punishment. Because SORNA’s regis-
tration requirements are not criminal punishments, but a civil regulatory scheme, they do not
pose an ex post facto problem. But for that very reasonSSthat SORNA registration is a civil
regulatory scheme and not a punishment imposed on Kebodeaux for his federal crimeSSCon-
gress needs some other jurisdictional hook to apply the requirement to persons such as him.
23
Compare 18 U.S.C. § 2250(a)(2)(A) (criminalizing the failure to register or update reg-
istration as a sex offender regardless of the date of the crime) and 28 C.F.R. § 72.3 (specifying
that “[t]he requirements of [SORNA] apply to all sex offenders, including sex offenders con-
victed of the offense for which registration is required prior to the enactment of that Act”) with
18 U.S.C. § 3603(1) (tying the duties of the probation officer to “the conditions specified by the
sentencing court”), § 3601 (same), § 3563(a) (explaining the “condition[s] of a sentence of pro-
bation”), § 3583(d) (same for supervised release), and United States v. Johnson, 529 U.S. 53,
56 (2000) (“A prisoner whose sentence includes a term of supervised release after imprison-
ment shall be released by the Bureau of Prisons to the supervision of a probation officer who
shall, during the term imposed, supervise the person released to the degree warranted by the
conditions specified by the sentencing court.” (quoting 18 U.S.C. § 3624(e)).
11
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of . . . detainees,”24 because it applies even to those who have long severed all ties
with the criminal justice system. It therefore makes no sense to say that
SORNA’s registration requirements areSSlike probation, supervised release, or
the civil commitment of mentally ill prisonersSS“reasonably adapted” to the gov-
ernment’s role as “custodian . . . of its prison system.”25
The tenuousness of the government’s position can be shown just by listing
the chain of causation from Congress’s military power to its criminalization of
Kebodeaux’s failure to register a change of address: Congress can supervise
military personnel, so it can establish crimes for them, so it can prosecute and
convict them, so it can supervise them for the duration of their sentence and
while they are in federal custody, so it can pass a law to protect society from
someone who was once in prison but seven years ago had fully served his sentence
and has not since been in contact with the federal government. That last power
is not reasonably adapted to Congress’s ability to regulate the military.
2.
The government, like the panel majority, responds by seizing on language
in Comstock that says that the power to imprison violators of federal law in-
cludes “the additional power to regulate the prisoners’ behavior even after their
release.” Id. at 1964 (emphasis added). But the government and the majority
quote the Court too selectively by omitting the beginning of the sentence. What
Comstock actually says is, “Indeed even the dissent acknowledges that Congress
has . . . the additional power to regulate the prisoners’ behavior even after their
release.” Id. The Court was merely enumerating those government actions that
24
Comstock, 130 S. Ct at 1961 (citation omitted) (emphasis added).
25
Id. at 1965 (emphasis added) (holding that Ҥ 4248 is a reasonably adapted and nar-
rowly tailored means of pursuing the Government’s legitimate interest as a federal custodian
in the responsible administration of its prison system”).
12
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even the Comstock dissent conceded were constitutional.26 And the portions of
the dissent cited by the majority assert only that Congress has the power to
regulate a prisoner’s behavior post-release as part of his sentence; the dissent
specifically rejects the notion that the government has open-ended authority to
regulate him after his punishment has ended merely by virtue of some sort of
vague “special relationship” between the federal government and one who once
committed a federal crime.27
The Comstock majority distanced itself from the notion that the panel
majority endorsed here. The Court cabined its holding by noting that the Soli-
citor General had conceded that the government could not commit a person who
had already been released from federal custody or sent to state custody;28 only
26
See id. at 1964 (“Indeed even the dissent acknowledges that Congress has the implied
power to criminalize any conduct that might interfere with the exercise of an enumerated
power, and also the additional power to imprison people who violate those (inferentially
authorized) laws, and the additional power to provide for the safe and reasonable management
of those prisons, and the additional power to regulate the prisoners’ behavior even after their
release” (citing id. at 1976-77, 1978 n.11 (Thomas, J., dissenting)). The majority opinion cites
slip op. p. 17, n.11 of the dissent, but it must have meant note 12, because note 11 does not
appear on page 17 (although note 12 does), and note 11 has nothing to do with regulation after
release (e.g. in the form of supervised release), whereas that is precisely what is discussed in
note 12.
27
See id. at 1979 n.12 (Thomas, J., dissenting) (“Contrary to the Government’s sugges-
tion, federal authority to exercise control over individuals serving terms of ‘supervised release’
does not derive from the Government’s ‘relationship’ with the prisoner, . . . but from the original
criminal sentence itself.” (citations omitted) (emphasis added)); id. at 1976-77 (Thomas, J., dis-
senting) (concluding that “[f]ederal laws that criminalize conduct that interferes with enumer-
ated powers, establish prisons for those who engage in that conduct, and set rules for the care
and treatment of prisoners awaiting trial or serving a criminal sentence” are constitutional
(emphasis added)); id. at 1979 (Thomas, J., dissenting) (“Once the Federal Government’s crim-
inal jurisdiction over a prisoner ends, so does any ‘special relationship’ between the govern-
ment and the former prisoner.” (alteration omitted)).
28
See id. at 1963 (“[T]he Solicitor General acknowledges that ‘the Federal Government
would have no appropriate role’ with respect to an individual covered by the statute once ‘the
transfer to State responsibility and State control has occurred.’” (citation omitted)); id. at 1965
(noting that the Solicitor General conceded that “the Federal Government would not have . . .
the power to commit a person who . . . has been released from prison and whose period of
(continued...)
13
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if he was still in federal custody could the government commit him.29 But if the
power to regulate a person stems merely from the fact that he was once con-
victed of a federal crime, then whether he is presently in federal prison or sub-
ject to federal supervision would make no difference: Once he has been convicted
of a federal crime, the government’s authority over him to protect society would
continue as long as he lives.
Thus, in the instant case the government is reneging on precisely those
concessions that caused the Court to reason that the civil commitment statute
at issue in Comstock was “narrowly tailored . . . [to] pursuing the Government’s
legitimate interest as a federal custodian in the responsible administration of its
prison system.” Id. at 1965. And the panel majority endorsed the government’s
about-face.
3.
The other case on which the panel majority relied is Carr, which it cited
for the startling proposition that § 2250(a)(2)(A) is constitutional because the
federal government has a “direct supervisory interest” over anyone who once
committed a federal sex offense. It is true that Carr stated, 130 S. Ct. at 2239,
that “the Federal Government has a direct supervisory interest” over federal sex
offenders. But, as the panel majority acknowledged, Carr did not address the
extent of Congress’s Article I power at allSSit involved a statutory-interpretation
issue and an Ex-Post-Facto-Clause question that the Court avoided.30 Moreover,
28
(...continued)
supervised release is also completed”).
29
See id. at 1964-65 (quoting the Solicitor General for the proposition that “[federal
authority for § 4248] has always depended on the fact of Federal custody, on the fact that this
person has entered the criminal justice system . . .”).
30
See Carr, 130 S. Ct. at 2232-33 (“At issue in this case is whether § 2250 applies to sex
(continued...)
14
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the briefs in that case show that no oneSSneither parties nor amici curiaeSS
raised the argument that Kebodeaux brings here.31 Thus, the panel took an iso-
lated statement from Carr out of context to make it a constitutional principle
with far-reaching implications about the scope of federal power.
The panel majority was correct that § 2250(a)(2)(A) applies to individuals
over whom the federal government has a “direct supervisory interest” because
they are in custody or have been released from custody on the condition that
they comply with SORNA.32 But that section also applies, as relevant here, to
those who have long been free of federal custody and supervision after fully serv-
ing their sentences. To say that Congress continues to have a “direct supervi-
sory interest” over such personsSSlike KebodeauxSSis to announce that it has an
eternal supervisory interest over anyone who ever committed a federal sex
crime. And that is no different from saying that Congress has such an interest
over anyone who ever committed any federal crime, because there is nothing
that is constitutionally special about sex crimes.33
30
(...continued)
offenders whose interstate travel occurred prior to SORNA’s effective date and, if so, whether
the statute runs afoul of the Constitution’s prohibition on ex post facto laws.”).
31
A Commerce Clause argument related to applying the statute to pre-SORNA travel
(i.e., not the issue Kebodeaux raises) was made by amicus but not addressed by the Court in
light of its holding. See id. at 2248 (Alito, J., joined by Thomas, J., and Ginsburg, J., dissent-
ing) (noting that “[i]t can also be argued that a broader construction would mean that Con-
gress exceeded its authority under the Commerce Clause,” but not addressing that argument
(citing Brief for the National Association of Criminal Defense Lawyers as Amicus Curiae
16-17)).
32
See 18 U.S.C. § 3583(d) (making compliance with SORNA “an explicit condition” of
a sex offender’s supervised release).
33
Similarly, the law concerning Congress’s military powers suggests that Congress does
not have continuing military jurisdiction over Kebodeaux after he was discharged from the
military. Except in very limited situations, a discharged person is no longer subject to the
Uniform Code of Military Justice. See 10 U.S.C. § 803. In United States ex rel. Toth v. Quar-
les, 350 U.S. 11, 13, 22-23 (1955), the Court held that the Necessary and Proper Clause does
(continued...)
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4.
In sum, as applied to Kebodeaux, SORNA’s registration requirements are
not, and cannot be, an attempt to punish the initial crime or to act as a respon-
sible custodian of prisoners; they are merely an effort to protect the public from
those who may be dangerous because they once were convicted of a sex offense.
By that logic, Congress would have never-ending jurisdiction to regulate anyone
who was ever convicted of a federal crime of any sort, no matter how long ago he
served his sentence, because he may pose a risk of re-offending.
Indeed, that logic could easily be extended beyond federal crimes: Congress
could regulate a person who once engaged in interstate commerce (and was
thereby subject to federal jurisdiction) on the ground that he now poses a risk of
engaging in interstate commerce again. In short, the only “rational relation” be-
tween § 2250(a)(2)(A)’s application to Kebodeaux and an enumerated federal
power is that Kebodeaux was once subject to federal jurisdictionSSreasoning that
is so expansive that it would put an end to meaningful limits on federal power.
The third Comstock “consideration” thus favors Kebodeaux.
D.
The fourth “consideration” is whether “the statute properly accounts for
33
(...continued)
not give the federal government power to try an ex-military serviceman by court-martial five
months after he left the military for a crime committed while in the military. Because he had
left the military, he had the same Article III protections as did any ordinary civilian.
If anything, the link between the military power and the federal government’s action
is even more attenuated in this case than in Toth, because the court-martial in Toth served
the purpose of punishing someone for his illegal conduct while in the military, see id. at 13,
whereas here the sex-offender-registration requirements serve no such purpose. As discussed,
SORNA’s purpose is merely to reduce the risk to society posed by one who has committed cer-
tain crimes. See 42 U.S.C. § 16901 (stating that SORNA’s purpose is to “protect the public
from sex offenders and offenders against children”). Indeed, the government does not argue
that it still has military jurisdiction over Kebodeaux, but only that its power to criminalize his
predicate crime includes the power to regulate his present-day conduct.
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state interests.” Comstock, 130 S. Ct. at 1962. “[T]he ‘States possess primary
authority for defining and enforcing the criminal law.’” Lopez, 514 U.S. at 561
n.3 (quoting Brecht v. Abrahamson, 507 U.S. 619, 635 (1993)). Thus, “[w]hen
Congress criminalizes conduct already denounced as criminal by the States, it
effects a ‘change in the sensitive relation between federal and state criminal jur-
isdiction.’” Id. (quoting United States v. Enmons, 410 U.S. 396, 411-12 (1973)).
Alternatively, it “displace[s] state policy choices . . . [when] its prohibitions apply
even in States that have chosen not to outlaw the conduct in question.” Id.(citation omitted).
As the government points out, some aspects of SORNA do accommodate
state interests. A state forgoes only ten percent of its federal funding by failing
substantially to comply with SORNA (for example, by failing to maintain a regis-
try). See 42 U.S.C. § 16925(a). And § 2250 itself allows an affirmative defense
if “uncontrollable circumstances”SSwhich, according to the government, would
include a state’s failure to collect registration dataSSprevent an individual from
complying with its registration requirements. 18 U.S.C. § 2250(b). Indeed, as
the panel pointed out, this court recently upheld SORNA against a Tenth-
Amendment challenge on the ground that the statute does not require the states
to comply with it. United States v. Johnson, 632 F.3d 912, 920 (5th Cir.), cert.
denied, 132 S. Ct. 135 (2011).
Nevertheless, the degree of state accommodation with respect to § 2250-
(a)(2)(A) is substantially less than that present in Comstock, 130 S. Ct. at
1962-63, in which the Court found that Congress’s statutory scheme for civilly
confining mentally ill and sexually dangerous prisoners accommodated state
interests because the Attorney General was required to notify interested states
about the confinement and to release prisoners if a state wished to assert author-
ity over them. Thus, continued federal confinement was, in essence, continually
subject to the states’ veto.
17
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Here, by contrast, there is no provision by which someone federally prose-
cuted under SORNA can be subjected to state penalties or transferred to state
custody instead. Unless a former federal sex offender proves that a state has
made it impossible for him to register,34 he is subject to federal prosecution and
up to ten years of imprisonment for failing to update his state registration with-
in three days of a change of address, employment, name, or student status, even
if the state believes a more moderate response would be appropriate35 (which
Texas and many other states apparently do36). The state is thus forced into the
binary choice of keeping a former federal sex offender off its own registry entire-
ly or subjecting him to § 2250(a)(2)(A)’s harsh penalties; it cannot control the
punishment given to those who fail to update their registration.
Thus, because SORNA mandates federal penalties for the failure of a state
resident to update his state sex offender registration solely because of an intra-
state change of address without giving states a veto of the sort present in Com-
stock, it is a much more substantial imposition on the states’ traditional police-
power authority over the criminal law within their own borders than what was
34
See 18 U.S.C. § 2250(b); Resp. to Pet. for Reh’g En Banc at 12.
35
See 42 U.S.C. § 16913(a)-(c) (requiring a sex offender to register in each jurisdiction
in which he resides and to update that registration); 18 U.S.C. § 2250(a) (criminalizing the
failure to update registration upon any change of address if one has been convicted of a federal
sex offense); U.S. DEP’T OF JUSTICE, THE NATIONAL GUIDELINES FOR SEX OFFENDER REGIS-
TRATION AND NOTIFICATION 6 (2008), available at http://www.ojp.usdoj.gov/smart/pdfs/-
final_sornaguidelines.pdf (“[SORNA] generally constitutes a set of minimum national stan-
dards and sets a floor, not a ceiling, for jurisdictions’ programs.”).
36
Texas and forty-six other states do not substantially comply with SORNA. TEX. SEN-
ATE CRIMINAL JUSTICE COMM., INTERIM REPORT TO THE 82ND LEGISLATURE 14 (2011), available
at http://www.senate.state.tx.us/75r/senate/commit/c590/c590.InterimReport81.pdf. One of
the problems with SORNA is that it “relies solely on [the] offense” of conviction to determine
whether a former sex offender is a threat to public safety, not “risk assessments” of a sex
offender’s likelihood to reoffend. Id.; see also id. at 19 (recommending risk assessments). In
addition, it does so without any apparent increase in effectiveness, because “[t]he recidivism
rate of those on the registry is not lower than that of the individuals not on the registry.”
Id. at 16.
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at issue in Comstock. It is true that § 2250(a)(2)(A) applies only to federal sex
offenders; but, as we have discussed, in the case of persons such as Kebodeaux
those are individuals with whom the federal government had previously severed
all ties. Accordingly, the fourth Comstock “consideration” ultimately cuts in
Kebodeaux’s favor.
E.
The final factor is whether the “links between [the statute] and an enum-
erated Article I power are not too attenuated” and the “statutory provision [is
not] too sweeping in its scope.” Comstock, 130 S. Ct. at 1963. The panel majori-
ty’s position was that the statute is narrow because it applies only to sex offend-
ers. But even assuming that a statute that applies to all sex offenders were con-
sidered narrow, its logic is expansive, because the only jurisdictional basis for
§ 2250(a)(2)(A) is the fact that a person once committed a federal sex crime. That
reasoning opens the door, as discussed in part II.C, to congressional power over
anyone who was ever convicted of a federal crime of any sort. That is anything
but narrow. Accordingly, the fifth Comstock factor also cuts in Kebodeaux’s
favor.
F.
In summary, even taking into account “the breadth of the Necessary and
Proper Clause,” Comstock, 130 S. Ct. at 1965, SORNA’s registration require-
ments and criminal penalty for failure to register as a sex offender, as applied
to those, like Kebodeaux, who had already been unconditionally released from
federal custody or supervision at the time Congress sought to regulate them, are
not “rationally related” or “reasonably adapted” to Congress’s power to crimin-
alize federal sex offenses to begin with. The statute’s regulation of an individual,
after he has served his sentence and is no longer subject to federal custody or
19
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supervision, solely because he once committed a federal crime, (1) is novel and
unprecedented despite over 200 years of federal criminal law, (2) is not “reasona-
bly adapted” to the government’s custodial interest in its prisoners or its interest
in punishing federal criminals, (3) is unprotective of states’ sovereign interest
over what intrastate conduct to criminalize within their own borders, and (4) is
sweeping in the scope of its reasoning. For those reasons, and with high respect
for its careful reasoning, the panel majority wrongly decided this case.37
III.
Finally, the government, like the panel concurrence, offers an alternative
argument for upholding the statute: that SORNA’s registration requirements for
federal sex offenders, and the criminal penalties for failing to comply, are neces-
sary and proper to effect Congress’s Commerce Clause power. Under its
Commerce-Clause and Necessary-and-Proper-Clause authority, Congress may
(1) “regulate the use of the channels of interstate commerce,” (2) “regulate and
protect the instrumentalities of . . . or persons or things in interstate commerce,
even though the threat may come only from intrastate activities,” and (3) “reg-
ulate those activities having a substantial relation to interstate commerce, i.e.,
37
The panel majority also urged that it would be unwise to decide in favor of Kebodeaux
because that would require disagreeing with United States v. George, 625 F.3d 1124, 1130 (9th
Cir. 2010), vacated on other grounds, 672 F.3d 1126 (9th Cir. 2012). That case, however, is
easily distinguishable.
Because the defendant in George was convicted in 2008, compliance with SORNA was
an explicit condition of his sentence. 18 U.S.C. § 3583(d). He therefore fell into the category
of offenders to whom SORNA is perfectly constitutional. But because Kebodeaux was long free
from federal custody before SORNA even existed, he is in a different category that George had
no occasion to consider. To the extent George implies that the federal government has Article I
power to regulate anyone who ever committed a federal sex crimeSSand by implication anyone
who ever committed any federal crime, because it has a “direct supervisory interest” over them
SSits reasoning stretches far beyond the issue before that court and is unpersuasive.
20
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those activities that substantially affect interstate commerce.”38
The panel concurrence maintains that this case fits into the first two cate-
gories of Commerce Clause authority. According to that view, SORNA’s regula-
tion of federal sex offenders can be seen as necessary and proper regulation of
“the channels of” or “persons . . . in interstate commerce” because it reduces the
risk of unmonitored interstate travel by sex offenders. The argument in the con-
currence runs as follows: Because a federal sex offender would face no federal
sanction for failing to register until he travels interstate, he could hide from
authorities before he does so. Thus, to prevent the purported risk that he evades
detection before traveling interstate, no requirement of interstate travel ought
to be necessary; Congress should be able to criminalize the mere act of failing to
register, even if a sex offender never travels interstate, because it reduces the
risk that he will someday travel interstate undetected.
Thus, the concurring judge on the panel would subtly but significantly
expand Congress’s power under the first two categories of Commerce Clause
authority beyond the regulation of “the use of the channels of interstate com-
merce” or “persons or things in interstate commerce,” Lopez, 514 U.S. at 558(emphasis added), to the regulation of the possible use of the channels of inter-
state commerce and persons or things because they will potentially be in inter-
state commerce. With due respect for the concurrence’s well-stated position, its
contention is both contrary to precedent and so expansive that it would confer
on the federal government plenary power to regulate all criminal activitySS
precisely what the Court sought to avoid in Lopez and Morrison.
38
See Lopez, 514 U.S. at 558-59, 567 (citation omitted) (holding that because the Gun-
Free School Zones Act does not fall within any of the three categories, it is an unconstitutional
exercise of federal power).
21
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A.
1.
Under the first category of its Commerce Clause authority, Congress may
regulate the use of the channels of interstate commerce: “the use of the inter-
state transportation routes through which persons and goods move.” Morrison,
529 U.S. at 613 n.5 (internal quotation marks omitted). “Congress may impose
relevant conditions and requirements on those who use the channels of inter-
state commerce in order that those channels will not become the means of pro-
moting or spreading evil . . . .”39 Because the federal government “exercis[es] [a]
police power . . . within the field of interstate commerce,” Brooks, 267 U.S. at
436-37, i.e., with respect to the channels, instrumentalities, persons, and goods
involved in interstate commerce, Congress may regulate those who use the chan-
nels of interstate commerce even if their activity is non-economic in nature.
Thus, for example, Congress may prohibit “enticing a woman from one state to
another for immoral ends, whether for commercial purposes or otherwise,” id.
at 437, transporting kidnaped persons across state lines, United States v. Darby,
312 U.S. 100, 113 (1941), traveling across state lines to commit domestic vio-
lence, United States v. Lankford, 196 F.3d 563, 572 (5th Cir. 1999), or traveling
interstate as a state sex offender without having first registered as such.40
But just as this category of Commerce-Clause authority gives the federal
government a “police power” over those who use the channels of interstate com-
merce, even if their activity is non-commercial, Brooks, 267 U.S. at 437, the cor-
39
N. Am. Co. v. SEC, 327 U.S. 686, 705 (1946) (citing Brooks v. United States, 267 U.S.
432, 436-37 (1925)); accord Lopez, 514 U.S. at 558 (“Congress may regulate the use of the
channels of interstate commerce.”).
40
See United States v. Whaley, 577 F.3d 254, 258 (5th Cir. 2009) (“Because § 2250[(a)-
(2)(B)] applies only to those failing to register or update a registration after traveling in inter-
state commerceSSin this case, Whaley traveled from Kansas to TexasSSit falls squarely under
the first Lopez prong.”).
22
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ollary is that that police power must also be limited to the “field of interstate
commerce,” see id. at 436. For example, although Congress may regulate those
who use the channels of interstate commerce for any reason, “[t]he regulation . . .
of intrastate violence that is not directed at the instrumentalities, channels, or
goods involved in interstate commerce has always been the province of the
States.” Morrison, 529 U.S. at 618 (emphasis added).
In Whaley, 577 F.3d at 259-60, in which this court upheld SORNA’s
requirement that state sex offenders register their addressSSas distinguished
from the federal sex-offender-registration requirement at issue hereSSwe were
careful to limit our holding by explaining that the statute at issue there neither
targets nor sanctions anyone who did not in fact use the channels of interstate
commerce. We explained that, with respect to state sex offenders, SORNA pun-
ishes a person only if he travels interstate without having first registered or
updated his registration. Id. at 261. Thus, the registration requirement’s
“focus” with regard to state offenders is solely on enforcing the criminal prohibi-
tion on traveling interstate without having registeredSS“rather than on requir-
ing sex offender registration generally.” Id. at 259.41
2.
As the Court explained in Carr, 130 S. Ct. at 2238, however, Congress
“chose to handle federal and state sex offenders differently.”42 In contrast to
SORNA’s regulatory scheme with regard to state sex offenders, Congress, for
federal offenders, “requir[es] sex offender registration generally.” Whaley, 577
41
See also id. at 260 (“And perhaps most significantly . . . a [state] sex offender who
does not travel in interstate commerce may ignore SORNA’s registration requirements without
fear of federal criminal consequences.”).
42
Compare 18 U.S.C. § 2250(a)(2)(A) with § 2250(a)(2)(B). The structure of § 2250(a)
is such that all federal sex offenders are covered under § 2250(a)(2)(A), but all remaining sex
offenders, i.e., state sex offenders, are under § 2250(a)(2)(B).
23
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F.3d at 259. The statutes regulating the movement of all federal sex offenders,
42 U.S.C. § 16913 and 18 U.S.C. § 2250(a)(2)(A), apply to all intrastate as well
as interstate movement without regard to whether a sex offender ever uses the
channels of interstate commerce. Those statutes therefore do not regulate only
activity “directed” at the channels of interstate commerce. Morrison, 529 U.S.
at 617. Federal sex offenders are subject to criminal sanctions if they fail to
register or update their registration even if they never step foot outside their
state. In short, federal sex offenders are regulated merely by virtue of the fact
that they are federal sex offenders. The view expressed in the panel concurrence
would thus do away with precisely the limits we considered crucial to our hold-
ing in Whaley.
Indeed, notably, the Solicitor General has expressly denied that § 2250-
(a)(2)(A) is constitutional as a regulation of the channels of interstate commerce,
asserting instead that it applies because the federal government has a “direct
supervisory interest” over those who committed federal offenses, see Carr, 130
S. Ct. at 2238-39, irrespective of whether they have a connection to interstate
commerce.43 Here the government makes an about-face only now that its orig-
inal justification for the statute’s constitutionalitySSthat of the panel majority
SSis in question in light of the fact that the panel opinion has been vacated for
rehearing en banc.
43
In Carr, the Solicitor General expressly asserted that § 2250(a) “reaches two categor-
ies of sex offenders: those whose underlying sex offenses were criminalized by virtue of federal
or tribal authority . . ., and all other sex offenders whose actions directly implicated Congress’s
Commerce Clause authority as a result of ‘travel[ing] in interstate or foreign commerce . . . .’”
Brief for United States at 21-22, Carr, 130 S. Ct. 2229 (No. 08-1301), 2010 WL 181570,
at *21-22; see Carr, 130 S. Ct. at 2238 (“According to the Government, these categories corres-
pond to two alternate sources of power to achieve Congress’s aim of broadly registering sex
offenders.” (internal quotation marks omitted)).
24
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3.
The panel concurrence nevertheless urges that SORNA’s registration
scheme for federal sex offenders is constitutional as well, because it allows the
federal government better to monitor sex offenders in case they someday travel
interstate. The concurrence therefore would expand the federal police power
over individuals who “use . . . the channels of interstate commerce,” see Lopez,
554 U.S. at 558; Brooks, 267 U.S. at 437, to those who might someday do so.
Neither this court nor the Supreme Court, however, has ever extended
Congress’s “police power” over those who use the channels of interstate com-
merce to punish those who are not presently using them but might do so. The
theory expressed in the panel concurrence is unprecedented,44 and for good rea-
son: Because every person is mobile, anyone might someday travel interstate.
Thus, by the reasoning of the concurrence, the federal government could regulate
anyone on that ground who might someday travel interstate. Myriad, longstand-
ing federal statutes, both economic and non-economic, that have as a jurisdic-
tional nexus the movement of a person across state lines would suddenly no
longer need that nexus.45
44
The recent Tenth Circuit case that the panel concurrence cited is inapposite; it
addresses only whether § 2250(a)(2)(A) is constitutional under the Commerce Clause on the
assumption that requiring intrastate sex offender registration is constitutional, an assumption
that trivializes the whole question. See United States v. Yelloweagle, 643 F.3d 1275, 1289
(10th Cir. 2011) (holding that Congress has the power to criminalize a federal sex offender’s
intrastate failure to register under § 2250(a)(2)(A) on the conceded assumption that it has the
power to require a federal sex offender to register purely intrastate activity), cert. denied,
132 S. Ct. 1969 (2012). If anything, that the panel majority made sure to consider the issue
only on those exceptionally narrow grounds suggests that it attempted to avoid precisely the
weightier question that we face here.
45
See, e.g., 18 U.S.C. § 228(a)(2) (criminalizing interstate travel to evade child support
obligations); § 1073 (interstate flight to avoid prosecution, giving testimony, service of process,
or contempt proceedings under state or federal law); § 1201(a)(1) (interstate transportation
of a kidnaped person); § 1231(interstate transportation of strikebreakers); § 1369 (interstate
travel with intent to injure or destroy a public monument); § 2101 (interstate travel with
intent to cause riots); § 2261(a)(1) (interstate travel with intent to commit domestic violence);
(continued...)
25
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For example, it is a federal crime to travel across state lines to evade child-
support obligations. 18 U.S.C. § 228(a)(2). As with former federal sex offenders,
deadbeat parents might move around within a state to evade state authorities,
and as with former federal sex offenders, that might increase the risk that they
go undetected before they travel across state lines. Therefore, by the logic of the
panel concurrence, the federal government should be able to regulate the intra-
state movement of deadbeat parents as well.
Thus, Congress could require anyone who owes child support obligations
under state law to report their changes of address to the federal government,
and if they do not, the Attorney General could criminally prosecute them; the
government would no longer need to wait until deadbeat parents cross state
lines: The crime would be complete when they move intrastate without notifying
federal authorities, because of the likelihood that they might otherwise someday
cross state lines undetected. The federal government could, as here, use the
mere risk of travel across state lines to justify far-reaching intrastate regulation
in an area of traditional and exclusive state concern.
Indeed, there is nothing about the panel concurrence’s reasoning that
limits its application to reporting requirements and criminal punishments for
failing to comply with them. For example, it is a federal crime to transport a
kidnaped person across state lines. 18 U.S.C. § 1201(a)(1). As with former fed-
eral sex offenders, someone who is transporting a kidnaped person is capable of
moving around and thereby potentially evading state authorities. And as with
former federal sex offenders, were the federal government to have no jurisdiction
45
(...continued)
§ 2421 (interstate transportation of prostitutes); § 2423 (interstate transportation of minors
for illicit purposes); Morrison, 529 U.S. at 613 n.5 (noting 18 U.S.C. § 2261(a)(1), which crimin-
alizes interstate spousal abuse). Most obviously, 18 U.S.C. § 2250(a)(2)(B), which criminalizes
a state sex offender’s travel across state lines without having registered, would no longer need
interstate travel as a jurisdictional hook; Congress could require registration of all sex offend-
ers generally.
26
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over kidnapers until they cross state lines, the likelihood that they would evade
authorities before traveling interstate would be greater. Thus, according to the
concurrence, the federal government should have the power to criminalize the
intrastate transportation of kidnaped persons, just as it should have the power
to proscribe the intrastate movement of sex offenders who did not register,
because, in both cases, it would reduce the risk that the criminals evade detec-
tion before crossing state lines.
More generally still, every crime (indeed every act) brings with it the risk
that the perpetrator will flee across state lines before being detected. Although
the panel concurrence is stated in the context of former sex offenders, there is
nothing limiting its logic to past, rather than present, criminals. Accepting his
logicSSthat the mere risk that a dangerous person will cross state lines unde-
tected gives the federal government authority to police his intrastate movements
preemptivelySSwould mean that the federal government would have the power
to arrest someone who committed a murder, rape, or any other crime tradition-
ally subject to state authority on the ground that he might otherwise evade state
authorities and escape across state lines undetected after doing so. In short, the
concurrence offers no limiting principle that would allow the federal government
to track and arrest former sex offenders because they might someday travel
interstate, but not allow it to do the same to anyone else for that same reason.
4.
The basic flaw in the panel concurrence is that it overlooks the role of the
states in policing within their own borders, relying on the implicit premise that
the federal government must regulate sex offenders’ intrastate movements
because the states will not do so. Every state has its own sex offender registry
and has every incentive to track and arrest sex offenders as long as they remain
intrastate. For example, it was state, not federal, authoritiesSSspecifically,
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El Paso Police Department officersSSwho both registered Kebodeaux and discov-
ered that he had failed to update his registration. Indeed, the federal sex-
offender registry consists of nothing more than the amalgamation of state reg-
istry (along with tribal and territorial registry) data obtained from local
officials.46
Only if a sex offender travels out-of-stateSSi.e., uses the channels of inter-
state commerceSSdoes a state’s jurisdiction end, making it inadequate to the task
of tracking and arresting a sex offenderSSand the federal government’s role there
begins. To give, instead, to the federal government the overlapping power to do
exactly what a state could already do itself, in an area completely unrelated to
commerce, just because criminals, like all human beings, can potentially cross
state lines, would violate basic tenets of federalism.47 In effect, the panel concur-
rence asserts that the federal government should be able to police individuals
within state borders just because states might not do so and those individuals
might thus pose a risk to inhabitants of other states. But the federal govern-
ment’s jurisdiction does not expand or contract based on a state’s criminal-policy
choices.48
46
See 42 U.S.C. §§ 16920-16921 (stating that the National Sex Offender Registry’s web
site shall include “relevant information . . . listed on a jurisdiction’s Internet site” and that the
Attorney General shall include information in the Registry obtained from “an appropriate offi-
cial in the jurisdiction” of registration); Sex Offender Registry Websites, FBI.GOV, http://www.-
fbi.gov/scams-safety/registry (last visited June 6, 2012) (linking to every state sex offender reg-
istry and explaining that “the national registry simply enables a search across multiple
jurisdictions”).
47
See Morrison, 529 U.S. at 611 (“Were the Federal Government to take over the regu-
lation of entire areas of traditional state concern, areas having nothing to do with the regula-
tion of commercial activities, the boundaries between the spheres of federal and state author-
ity would blur” (quoting Lopez, 514 U.S. at 577 (Kennedy, J., concurring)), “and political
responsibility would become illusory,” Lopez, 514 U.S. at 577 (Kennedy, J., concurring)).
48
See Darby, 312 U.S. at 114 (“Th[e power of Congress over interstate commerce] can
neither be enlarged nor diminished by the exercise or non-exercise of state power.”).
28
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B.
The panel concurrence fares no better under the second category of Con-
gress’s Commerce-Clause authority: Congress may regulate the instrumentali-
ties of, and, as most relevant here, persons or things in, interstate commerce, as
well as intrastate activities threatening them. Lopez, 514 U.S. at 558. For
example, the Court has upheld the regulation of vehicles used in interstate com-
merce,49 the destruction of aircraft,50 and thefts from interstate shipments51 on
those grounds.
The panel concurrence took this category of authority to mean that Con-
gress may police any person or thing that might cross state lines. That misun-
derstands the precedent. First, crossing state lines does not mean a person is
engaging “in interstate commerce,” because that mere fact does not constitute
engaging in “commerce” by any definition of the term. Rather, it constitutes a
“use of the channels of interstate commerce,” which the first category of Com-
merce-Clause authority is meant to regulate. See part III.A. With all due
respect, the concurrence thus confuses the first category of regulable activity
with the second.
Second, a person who only might cross state lines is not engaging “in inter-
state commerce,” because he has not yet engaged in interstate activity. Thus,
SORNA’s sex-offender-registration requirements do not regulate persons in
interstate commerce, because sex offenders do not engage in activity that is
either “interstate” or “commerce” just by virtue of being sex offenders. That a
person might someday engage in interstate commerce is very different from say-
ing that he is a “person[] . . . in interstate commerce.” Lopez, 514 U.S. at 558.
49
Lopez, 514 U.S. at 558 (citing S. Ry. Co. v. United States, 222 U.S. 20 (1911)).
50
Id. (citing Perez v. United States, 402 U.S. 146, 150 (1971)).
51
Id. (citing Perez, 402 U.S. at 150).
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Under this category of authority, Congress may regulate and protect the latter,
not the former. See id.Lastly, though Congress may protect the instrumentalities of, and persons
or things in, interstate commerce from intrastate threats, those threats must be
“directed at” the instrumentalities of, or persons or things in, interstate com-
merce; they cannot just be a general threat to society of the sort that sex offend-
ers pose.52 For example, Congress may regulate the destruction of an “aircraft
used, operated, or employed in interstate, overseas, or foreign air commerce,” 18
U.S.C. § 32(a)(1), even though the destructive activity occurs within a single
state, because aircraft are themselves “instrumentalities of interstate com-
merce,” Perez, 402 U.S. at 150. Analogously, Congress may regulate thefts from
interstate shipments, even though the thefts occur within a single state, because
the shipments themselves are “things in [interstate] commerce.” Id. (citing 18
U.S.C. § 659). Those regulations are permissible because Congress limited itself
to regulating threats “directed at” interstate commerce. See Morrison, 529 U.S.
at 618.
In short, none of the Court’s cases under the second Commerce Clause
category even hints, let alone turns on the fact, that Congress could regulate
someone because he might someday threaten interstate commerce. And for good
reason: By that flawed logic, Congress could regulate ordinary thieves on the
ground that they pose a “threat” to interstate commerce by virtue of the fact
that, someday, they might steal an instrumentality of interstate commerce.
Accordingly, the panel concurrence’s reliance on the second Commerce Clause
category is unpersuasive.
52
See Morrison, 529 U.S. at 618 (“The regulation . . . of intrastate violence that is not
directed at the instrumentalities, channels, or goods involved in interstate commerce has
always been the province of the States.” (citing Cohens v. Virginia, 19 U.S. (6 Wheat.) 264,
426, 428 (1821) (Marshall, C.J.))).
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C.
Indeed, it is telling that the panel concurrence’s main source of authority
is Gonzales v. Raich, 545 U.S. 1 (2005), which held that a congressional statute
prohibiting marihuana possession was constitutional under the third category
of Commerce-Clause authority, Congress’s “power to regulate activities that sub-
stantially affect interstate commerce,” id. at 17. Indeed, the Court stated that
“[o]nly the third category” of Congress’s Commerce-Clause authority was “impli-
cated in the case at hand.” Id. It logically follows that the Court believed that
the case did not “implicate” the two other “categories” of Commerce-Clause
powerSSthose at issue here: Congress’s powers to “regulate the channels of
interstate commerce” and to “regulate and protect . . . persons or things in inter-
state commerce.” See id. at 16-17. That is unsurprising, given that the statute
at issue criminalized purely intrastate marihuana possession, which is not a
part of “the channels of” or a “thing[] in interstate commerce” or a “threat” to
“things in interstate commerce.”
Moreover, in holding that the marihuana-possession statute was constitu-
tional under the third Commerce-Clause category, the Raich Court explicitly
based its decision on the fact that the statute was part of a comprehensive regu-
lation of “quintessentially economic” activity.53 That the statute regulated eco-
nomic activity was what distinguished the case from Lopez and Morrison, which
struck down statutes regulating intrastate conduct because of the “noneconomic,
criminal nature of the conduct at issue.”54 Raich thus merely followed the line
53
See Raich, 545 U.S. at 25 (“Unlike those at issue in Lopez and Morrison, the activities
regulated by the CSA are quintessentially economic.”); id. at 25-26 (defining “economic” activ-
ity as “the production, distribution, and consumption of commodities”).
54
See Morrison, 529 U.S. at 610-11 (“[A] fair reading of Lopez shows that the noneco-
nomic, criminal nature of the conduct at issue was central to our decision in that case. . . .
Lopez’s review of Commerce Clause case law demonstrates that in those cases where we have
sustained federal regulation of intrastate activity based on the activity’s substantial effects
(continued...)
31
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drawn in Lopez and Morrison between economic and non-economic activity
under the third category.
In contrast to the statute in Raich, and like the statutes in Lopez and Mor-
rison, the statute here regulates non-economic, intrastate conduct that is not “an
essential part of a larger regulation of economic activity.” Lopez, 514 U.S. at
561. It is a criminal statute that “by its terms has nothing to do with ‘commerce’
or any sort of economic enterprise, however broadly one might define those
terms.” Morrison, 529 U.S. at 610 (quoting Lopez, 514 U.S. at 561). It would
thus fail the Lopez/Morrison/Raich test under the third Commerce Clause cate-
gory, as it should. To hold a non-commercial statute regulating purely intrastate
conduct constitutional would read the word “commerce” out of the Commerce
Clause.55
But by the logic urged in the panel concurrence, Raich should not have
turned on the economic/non-economic distinction or on the third category of
Commerce Clause authority at all. Because marihuana possessed intrastate
surely poses a risk of subsequently moving interstate, the Court instead should
have found the statute constitutional as a regulation of “the channels of” or
“things in interstate commerce” without any need to resort to the catchall cate-
gory of intrastate “activities that substantially affect interstate commerce.” But
that was not what the Court did or said in Raich.
The panel concurrence’s reliance on the first two “categories” of Congress’s
Commerce-Clause authority instead of the third amounts to an avoidance of
Lopez, Morrison, and Raich. That reasoning, far from faithfully applying Raich,
54
(...continued)
on interstate commerce, the activity in question has been some sort of economic endeavor.”
(citations omitted)).
55
See id. at 613 (“[T]hus far in our Nation’s history our cases have upheld Commerce
Clause regulation of intrastate activity only where that activity is economic in nature.”).
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expands the first two “categories” to cover non-economic, intrastate activities
that could not be regulated under the third. The fatal flaw with that argument
is that it fails to come to terms with the role of the economic/non-economic
distinction in the Court’s Commerce-Clause jurisprudence: To be constitutional,
regulations of intrastate activity affecting interstate commerce must, logically,
have something to do with commerce. The statute at issue here does not.
D.
Finally, the panel concurrence contends that § 2250(a)(2)(A), although a
regulation of intrastate activity, is constitutional as a necessary and proper
means of enforcing § 2250(a)(2)(B)’s regulation of interstate travel under Raich.56
But it is questionable how subsection (A), which criminalizes federal sex offend-
ers’ failure to update registration, helps effect subsection (B), which criminalizes
state sex offenders’ failure to update. Subsection (B) makes it a crime for a state
sex offender to fail to update his registration if he travels in interstate commerce
without having registered. Subsection (A) mirrors subsection (B) for federal sex
offenders, except that there is no interstate-travel requirement. Not having an
interstate travel requirement for federal sex offenders in no way helps to protect
society from the interstate travel of state sex offenders.
E.
Therefore, as we have explained, the approach reflected in the panel con-
currence fails, because it is an attempt to place under the Commerce Clause a
56
See Raich, 545 U.S. at 22 (holding that Congress has the authority to enact “compre-
hensive legislation to regulate the interstate market” even where that “regulation ensnares
some purely intrastate activity”); see Whaley, 577 F.3d at 259 (upholding 42 U.S.C. § 16913SSwhich requires sex offenders to register changes of addressSSeven though it applies to intra-
state activity, because, without it, Ҥ 2250 [which criminalizes the failure to register] has no
substance”).
33
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regulation that is neither “interstate” nor “commercial.” SORNA’s regulation of
federal sex offenders does not fit into any of the three categories of regulations
that the Supreme Court has upheld under the Commerce Clause, so it cannot be
justified under the commerce power.
Upholding § 2250(a)(2)(A) would go a big step further than has the applica-
ble caselaw, because, unlike § 2250(a)(2)(B), this statute regulates federal sex
offenders “generally,” Whaley, 577 F.3d at 259, regardless of whether they
engage in interstate activity.57 The activity criminalized by § 2250(a)(2)(A) is
thus not “directed” at interstate commerce in the way that all previously upheld
provisions regulating the use of the channels of interstate commerce have been.58
IV.
In summary, and for the reasons discussed in parts II and III, 42 U.S.C.
§ 16913’s registration requirements and § 2250(a)(2)(A)’s criminal penalties for
failing to register after intrastate relocation are unconstitutional solely as they
apply to former federal sex offenders who had been unconditionally released
from federal custody before SORNA’s passage in 2006. Every federal sex
offender subject to federal custody or supervision when SORNA was enacted, or
who was convicted since then, is unaffected. Moreover, those who had been
unconditionally released before SORNA’s passage need not go unmonitored; they
could still be regulated just as state sex offenders currently are under federal
57
Cf. Carr, 130 S. Ct. at 2248 (Alito, J., joined by Thomas and Ginsburg, JJ., dissent-
ing) (noting that it “can also be argued” that interpreting § 2250(a)(2)(B)SSthe state sex
offender provisionSSto apply to interstate travel that occurred before SORNA’s enactment
“would mean that Congress exceeded its authority under the Commerce Clause.”). That is a
fortiori the case here, with the government arguing that an analogous statute requiring no
interstate travel at all is constitutional.
58
See Morrison, 529 U.S. at 618 (“The regulation . . . of intrastate violence that is not
directed at the instrumentalities, channels, or goods involved in interstate commerce has
always been the province of the States.” (citing Cohens, 19 U.S. (6 Wheat.) at 428)
(Marshall, C.J.)).
34
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law, and they remain subject to state authority.
The statute is an unlawful expansion of federal power at the expense of the
traditional and well-recognized police power of the state.59 The conviction is
REVERSED, and a judgment of dismissal is RENDERED.
59
The unconstitutionality applies only as to those in the narrow and specific circum-
stance faced by Kebodeaux, and we make no holding as to others.
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OWEN, Circuit Judge, concurring.
I join in the judgment reached by a majority of the en banc court. I do not
entirely agree, however, with the majority’s analysis of Kebodeaux’s obligations
under federal law to register as a sex offender at the time he completed his
sentence for unlawful sexual relations with a fifteen-year-old.
When Kebodeaux was sentenced in court martial proceedings in 1999, he
was required by federal law “to register in any State in which [he] resides, is
employed, carries on a vocation, or is a student following release from prison or
sentencing to probation”1 if that State required registration. Kebodeaux could
have been prosecuted under federal law, former 42 U.S.C. § 14072, for knowingly
failing to register in any State in which he resides.2 Federal law did not require
States to require federal offenders such as Kebodeaux to register, but it
encouraged them to do so.3 Among other requirements, Texas laws obligated
1
42 U.S.C. § 14072(i)(4) (Supp. IV 1999), repealed by Sex Offender Registration and
Notification Act, Pub. L. No. 109-248, 120 Stat. 587 (2006).
2
See id., which provided:
(i) Penalty
A person who is–
(4) sentenced by a court martial for conduct in a category specified by the
Secretary of Defense under section 115(a)(8)(C) of title I of Public Law 105-119,
and knowingly fails to register in any State in which the person resides, is
employed, carries on a vocation, or is a student following release from prison or
sentencing to probation, shall, in the case of a first offense under this
subsection, be imprisoned for not more than 1 year and, in the case of a second
or subsequent offense under this subsection, be imprisoned for not more than
10 years.
3
See 42 U.S.C. § 14071(b)(7) (Supp. IV 1999), repealed by Sex Offender Registration
and Notification Act, Pub. L. No. 109-248, 120 Stat. 587 (2006):
(7) Registration of out-of-State offenders, Federal offenders, persons sentenced
by courts martial, and offenders crossing State borders
(continued...)
36
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Kebodeaux to register with Texas authorities when he entered the state and to
provide notice of a change of residence within the state or the intent to change
residence within the state.4 Prior to the enactment of SORNA, Kebodeaux could
have been convicted under federal law, former 42 U.S.C. § 14072(i)(4), if he
moved from El Paso, Texas to San Antonio, Texas and failed to notify Texas
authorities of this intrastate change in residence in the manner required by
state law. There would have been no constitutional infirmity in this federal law
as applied to Kebodeaux because the federal requirement to comply with state
registration requirements was in existence at the time that he was sentenced in
the court martial proceedings. Congress was well within its powers under the
Necessary and Proper Clause to impose conditions such as intrastate registra-
tion and reporting requirements on federal sex offenders in connection with their
convictions and sentencing.
SORNA expanded registration requirements for sex offenders. However,
the question before us is whether Congress had the authority to criminalize the
conduct for which Kebodeaux was convicted. Kebodeaux was prosecuted under
18 U.S.C. § 2250(a) for knowingly failing to “update a registration as required
by [SORNA].”5 The registration requirements applicable to Kebodeaux under
3
(...continued)
As provided in guidelines issued by the Attorney General, each State shall
include in its registration program residents who were convicted in another
State and shall ensure that procedures are in place to accept registration
information from–
(A) residents who were convicted in another State, convicted of a Federal
offense, or sentenced by a court martial . . . .
4
See TEX. CODE CRIM. PROC. art. 62.051.
5
18 U.S.C. § 2250(a) (emphasis added). That section provides:
§ 2250. Failure to register
(a) In general.--Whoever--
(continued...)
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SORNA included the obligation to keep his registration current in the jurisdic-
tion in which he was residing and that he provide notice of a change of his
residence within three business days, but not necessarily to the State in which
he was residing.6 These requirements differ from Texas law. One difference is
that under Texas law, a sex offender has seven days within which to provide
5
(...continued)
(1) is required to register under the Sex Offender Registration and Notification
Act;
(2)(A) is a sex offender as defined for the purposes of the Sex Offender
Registration and Notification Act by reason of a conviction under Federal law
(including the Uniform Code of Military Justice), the law of the District of
Columbia, Indian tribal law, or the law of any territory or possession of the
United States; or
(B) travels in interstate or foreign commerce, or enters or leaves, or resides in,
Indian country; and
(3) knowingly fails to register or update a registration as required by the Sex
Offender Registration and Notification Act;
shall be fined under this title or imprisoned not more than 10 years, or both.
6
42 U.S.C. § 16913. That section provides in pertinent part:
(a) In general
A sex offender shall register, and keep the registration current, in each
jurisdiction where the offender resides, where the offender is an employee, and
where the offender is a student. For initial registration purposes only, a sex
offender shall also register in the jurisdiction in which convicted if such
jurisdiction is different from the jurisdiction of residence.
....
(c) Keeping the registration current
A sex offender shall, not later than 3 business days after each change of name,
residence, employment, or student status, appear in person in at least 1
jurisdiction involved pursuant to subsection (a) of this section and inform that
jurisdiction of all changes in the information required for that offender in the
sex offender registry. That jurisdiction shall immediately provide that
information to all other jurisdictions in which the offender is required to
register.
38
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notice of a change of address.7 Kebodeaux conceivably could have been convicted
under SORNA for conduct that complied with State law and therefore would
have also complied with the federal law to which Kebodeaux was subject at the
time he was convicted and sentenced.
There is another difference between the federal law in effect when
Kebodeaux was sentenced in 1999 and the provisions of SORNA under which he
was prosecuted. The federal criminal statute that obtained in 1999, former 42
U.S.C. § 14072(i)(4), provided that the maximum term of imprisonment for a
first offense of failing to register in a State was “not more than 1 year,” while
under SORNA, the maximum term of imprisonment for a first offense is 10
years.8 Kebodeaux was convicted under SORNA and sentenced to more than one
year of imprisonment—one day more.
The question, then, is whether, after Kebodeaux had completed his federal
sentence and had been released from federal oversight other than the reporting
requirements imposed at the time he was sentenced, Congress could constitu-
tionally subject Kebodeaux to federal reporting requirements that criminalized
failure to comply with federal, as opposed to State, reporting requirements
regarding intrastate changes of residence, and that increased the punishment
for failure to comply with reporting requirements. I agree with a majority of the
en banc court that Congress could not constitutionally apply SORNA to
Kebodeaux’s intrastate relocations under either the Necessary and Proper
Clause or the Commerce Clause. I accordingly concur in the judgment.
7
TEX. CODE CRIM. PROC. art. 62.051(a).
8
18 U.S.C. § 2250(a).
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DENNIS, Circuit Judge, joined by KING, Circuit Judge, dissenting.
I respectfully dissent.
I.
The majority’s decision misinterprets and hobbles Congress’s use of its
enumerated and implied constitutional powers to enact the Sex Offender
Registration and Notification Act (SORNA or Act) for the purpose of deterring
dangerous sex offenders nationwide from moving either intrastate or interstate
in evasion of SORNA registration and updating requirements to prey on children
and other vulnerable sex crime victims. SORNA establishes a comprehensive
federal and state legal system that, inter alia, requires convicted sex offenders
to register, and to keep their registrations current, in each locality where they
live, work, and go to school, 42 U.S.C. § 16913(a)-(c); withholds federal funds
from participating jurisdictions that fail to substantially implement SORNA, id.§ 16925(a); requires each participating jurisdiction to enact criminal penalties
for the failure of a sex offender to comply with SORNA registration and updating
requirements within each jurisdiction, id. § 16913(e); makes it a federal crime
for a convicted sex offender who moves in interstate commerce and knowingly
fails to abide by the Act’s registration requirements, 18 U.S.C. § 2250(a)(1),
(2)(B), (3); and makes it a federal crime for a person convicted as a sex offender
under federal law to knowingly fail to abide by SORNA’s registration and
updating requirements, id. § 2250(a)(1),(2)(A), (3).
The question raised by Kebodeaux and the majority opinion is whether
SORNA’s 18 U.S.C. § 2250(a)(2)(A) can constitutionally apply to a person
convicted as a sex offender under federal law, who was released from federal
custody prior to the enactment of SORNA, but who knowingly failed to update
his registration after an intrastate residence change, as required by SORNA
subsequent to its effective date as specified by the Attorney General. 42 U.S.C.
§ 16913(d). The majority’s answer is that SORNA’s criminal, registration and
40
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notification provisions cannot constitutionally be applied to punish a federal sex
offender for his knowing failure to register or update a registration following his
intrastate change of residence if he had been released from federal custody prior
to SORNA’s enactment on July 27, 2006. The majority reaches this conclusion
for two independent reasons:
First, although Congress undisputedly has the implied power under
Article I of the Constitution to make criminal laws to govern persons in
furtherance of Congress’s enumerated legislative powers, see, e.g., United States
v. Comstock, 130 S. Ct. 1949, 1957 (2010), the majority concludes that power
cannot be applied to punish a federal sex offender for his knowing failure to
update his intrastate residence change under SORNA if he had been released
from federal custody prior to the enactment of SORNA on July 27, 2006.
Applying the “Comstock considerations,” see id. at 1965, the majority recognizes
first that Congress has broad authority to enact legislation under the Necessary
and Proper Clause, see id. at 1956; that a statute must constitute a means that
is “reasonably adapted” to an enumerated power; that Congress has a large
discretion as to the choice of such means; and that courts must apply a
presumption of constitutionality to Congress’s enactments. Maj. Op. 5-6. But
the majority finds that the other “Comstock considerations” outweigh that
presumption and show that SORNA is not reasonably adapted to Congress’s
undisputed Article I power to criminalize federal sex offenses because “[t]he
statute’s regulation of an individual, after he has served his sentence and is no
longer subject to federal custody or supervision, solely because he once
committed a federal crime, (1) is novel and unprecedented despite over 200 years
of federal criminal law; (2) is not ‘reasonably adapted’ to the government’s
custodial interest in its prisoners or its interest in punishing federal criminals;
(3) is unprotective of states’ sovereign interest over what intrastate conduct to
criminalize within their own borders; and (4) is sweeping in the scope of its
41
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reasoning.” Maj. Op. 19.
Alternatively, the majority concedes that Congress, under its Commerce
Clause and Necessary and Proper Clause authority, may (1) “regulate the use
of the channels of interstate commerce”; (2) “regulate and protect the instrumen-
talities of . . . or persons or things in interstate commerce, even though the
threat may come only from intrastate activities”; and (3) “regulate those
activities having a substantial relation to interstate commerce, i.e., those
activities that substantially affect interstate commerce.” Maj. Op. 20 (alteration
in original) (quoting United States v. Lopez, 514 U.S. 549, 558-59 (1995)); see also
Maj. Op. 20 n.38 (describing Lopez as “holding that because the Gun-Free School
Zones Act does not fall within any of the three categories, it is an unconstitu-
tional exercise of federal power” (citing Lopez, 514 U.S. 549, 558-59, 567)). But
the majority finds that Congress nonetheless lacked the authority to subject
federal sex offenders released prior to the July 27, 2006 enactment of SORNA’s
registration requirements, 42 U.S.C. §§ 16913-16916, and pertinent criminal
provision, 18 U.S.C. § 2250(a)(2)(A), because they, like the statutes that were
struck down in Lopez and United States v. Morrison, 529 U.S. 598 (2000),
constitute regulation of only intrastate non-economic activity.
II.
Failing to recognize that statutory interpretation is a “holistic endeavor,”
United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371
(1988); accord United States v. Johnson, 632 F.3d 912, 922 (5th Cir. 2011)
(same), the majority opinion’s reading of SORNA’s text is incomplete and
erroneous. Consequently, the majority fails to properly analyze and understand
how Congress rationally and simultaneously adapted SORNA’s provisions to the
three constitutional powers they carry into execution: the spending power, the
commerce power, and the power to enact criminal laws to further and to prevent
interference with its enumerated powers. The majority totally disregards
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Congress’s use in SORNA of its enumerated power to spend federal funds for the
general welfare. Importantly, Congress used its spending power both to
establish SORNA’s purpose as a legitimate end of the legislation, and as one of
the means, together with its Commerce Clause power and its power to legislate
criminal laws to further and protect its enumerated powers, in carrying all of
those powers into effect.
The majority analyzes, one at a time, only two congressional powers that
SORNA seeks to execute, the Commerce Clause power and power to enact
criminal laws pursuant to its enumerated powers, and finds that SORNA is not
rationally adapted to execute either power. This analysis is manifestly incorrect,
however, because in SORNA, Congress plainly used three, not just two, of its
constitutional powers, and it used them simultaneously, not just one at a time.
In doing so, Congress reasonably adapted the SORNA provisions as the
necessary and proper means of carrying all three powers into effect at the same
time. The three powers are Congress’s enumerated spending power, U.S. Const.
art. I, § 8, cl. 1, its enumerated Commerce Clause power, id. art. 1, § 8, cl. 3, and
its well established implied power to enact criminal laws in furtherance of its
enumerated powers, e.g., to regulate commerce, to spend funds for the general
welfare, to enforce civil rights, and so forth, see Comstock, 130 S. Ct. at 1957-58
(citing U.S. Const. art. I, § 8, cls. 1, 3, 4, 7, 9; id. amends. XIII-XV). Recently, the
Supreme Court recognized that SORNA uses these three powers in “seek[ing] to
make the preexisting patchwork of federal and 50 individual state registration
systems . . . more uniform and effective . . . by setting forth comprehensive
registration-system standards; by making federal funding contingent on States’
bringing their systems into compliance with those standards; by requiring both
state and federal sex offenders to register with relevant jurisdictions (and to
keep registration information current); and by creating federal criminal
sanctions applicable to those who violate the Act’s registration requirements.”
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Reynolds v. United States, 132 S. Ct. 975, 978 (2012) (citing, inter alia, 18 U.S.C.
§ 2250(a) (criminal provision), 42 U.S.C. §§ 16911(10), 16913-16916 (registration
requirements), and 42 U.S.C. § 16925 (federal funding provision)).
Chief Justice Marshall famously summarized Congress’s authority under
the Necessary and Proper Clause in McCulloch v. Maryland, which has stood for
nearly 200 years as the Court’s definitive interpretation of that text:
Let the end be legitimate, let it be within the scope of the constitu-
tion, and all means which are appropriate, which are plainly
adapted to that end, which are not prohibited, but consistent with
the letter and spirit of the constitution, are constitutional.
17 U.S. 316, 421 (1819). Congress’s purpose in enacting SORNA is to “protect
the public from sex offenders and offenders against children” by joining and
unifying the states and other jurisdictions in establishing a “comprehensive
national system” for registration and notification of the public by sexual
offenders. 42 U.S.C. § 16901. Thus, SORNA’s purpose constitutes a legitimate
end toward which a Congressional law may be directed — the spending of funds
for the general welfare — and SORNA’s provisions carry into execution that
spending power as well as Congress’s enumerated power to regulate interstate
and foreign commerce and its implied power to enact criminal laws in further-
ance of those enumerated powers.
The Supreme Court has also held that the Constitution “‘addresse[s]’ the
‘choice of means primarily . . . to the judgment of Congress. If it can be seen
that the means adopted are really calculated to attain the end, the degree of
their necessity, the extent to which they conduce to the end, the closeness of the
relationship between the means adopted and the end to be attained, are matters
for congressional determination alone.’” Comstock, 130 S. Ct. at 1957 (alter-
ations in original) (quoting Burroughs v. United States, 290 U.S. 534, 547-48
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(1934)). In my view, Congress did not abuse its discretion in enacting 42 U.S.C.
§ 16913 and 18 U.S.C. § 2250(a)(2)(A), as part of the interconnected and highly
reticulated scheme of SORNA, in order to achieve the goal of establishing a
comprehensive national system for registration of, and notification by, sex
offenders.
In Sabri v. United States, 541 U.S. 600 (2004), the Court held that
“Congress has authority under the Spending Clause to appropriate federal
moneys to promote the general welfare, Art. I, § 8, cl. 1, and it has corresponding
authority under the Necessary and Proper Clause, Art. I, § 8,cl. 18, to see to it
that taxpayer dollars appropriated under that power are in fact spent for the
general welfare.” Id. at 605 (emphases added). Similarly, in SORNA, Congress
uses its spending power to induce the states and other defined jurisdictions to
join in accomplishing its purpose by providing, inter alia, that: a participating
jurisdiction that fails to substantially implement SORNA’s requirements shall
not receive 10 percent of the federal funds that would otherwise be allocated to
the jurisdiction under SORNA, 42 U.S.C. § 16925(a); each jurisdiction shall
maintain a jurisdiction-wide sex offender registry conforming to the require-
ments of SORNA, id. §16912(a); each jurisdiction, other than a federally
recognized Indian tribe, shall enact a criminal penalty that includes a maximum
term of imprisonment that is greater than a year for the failure of a sex offender
to comply with the requirements of SORNA, id. § 16913(e); the Attorney General
shall maintain a national database at the Federal Bureau of Investigation for
each sex offender and any other person required to register in a jurisdiction’s sex
offender registry, known as the National Sex Offender Registry, id. § 16919(a);
and the Attorney General shall ensure (through the Registry or otherwise) that
updated information about a sex offender is immediately electronically
forwarded to all relevant jurisdictions, id. § 16919(b). The foregoing SORNA
provisions are manifestly rationally adapted to carry Congress’s spending power
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into execution for the legitimate purpose of establishing a comprehensive
national system for the registration and notification by convicted sexual
offenders to protect the public against sex offenders and offenders against
children.
At the same time, in SORNA, Congress under its power to enact federal
laws to criminalize conduct that would interfere with its enumerated powers,
criminalized a knowing failure by a federal sex offender to register or update a
registration. Thus, while Congress used its spending clause power to induce
each jurisdiction to enact a criminal penalty for the failure of a sex offender to
comply with the requirements of SORNA, see 42 U.S.C. § 16913(e), it also
enacted a federal criminal law counterpart that provides that a federal sex
offender who knowingly fails to register or update a registration as required by
SORNA shall be fined or imprisoned not more than 10 years, or both, 18 U.S.C.
§ 2250(a)(2)(A). This latter provision enables the federal government to
prosecute and convict federal sex offenders who knowingly fail to register, or to
keep the registration current in each place where the offender resides, is an
employee, or is a student, as required under § 16913(a)-(c). The states and other
defined jurisdictions are enabled to prosecute and convict sex offenders who
knowingly fail to comply with the requirements of SORNA under the criminal
penalties the participating states and other jurisdictions are required to enact
by § 16913(e). See, e.g., 42 U.S.C. § 16913(c) (Every sex offender “shall, not later
than 3 business days after each change of name, residence, employment, or
student status, appear in person in at least 1 jurisdiction involved” and “inform
that jurisdiction of all changes in the information required for that offender in
the sex offender registry.”). Thus, a federal sex offender, such as Kebodeaux,
who fails to update his registration as required by SORNA, after changing his
residence intrastate, may be prosecuted, convicted and punished for knowingly
failing to abide by SORNA requirements, by either the state or the federal
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government.
Section 2250(a)(2)(A) is necessary and proper to bring about parity and a
consistent level of enforcement, monitoring and tracking of all sex offenders, so
that laxity toward federal sex offenders does not disrupt or interfere with
Congress’s enumerated powers sought to be executed through SORNA.
Although § 2250(a)(2)(A) overlaps with the participating jurisdictions’ criminal
penalties enacted pursuant to § 16913(e), Congress evidently had reason to enact
a federal criminal law to further and protect its enumerated powers brought into
execution by SORNA. As the Supreme Court explained in Carr v. United States,
“it is entirely reasonable for Congress to have assigned the Federal Government
a special role in ensuring compliance with SORNA’s registration requirements
by federal sex offenders— persons who typically would have spent time under
federal criminal supervision.” 130 S. Ct. 2229, 2238 (2010). Congress could
reasonably expect the states to have an incentive and ability to monitor, track,
and convict state sex offenders who change names, residences, employment, or
schools intrastate without updating their registrations, while deeming that the
federal government should take primary responsibility for deterring federal sex
offenders from doing the same. After all, because federal sex offenders are
identified and classified as such by virtue of their federal convictions, it is
reasonable for Congress to require the federal government, rather than the
participating jurisdictions, to be primarily responsible for monitoring and
enforcing their registration and updating requirements under SORNA.
Congress also exercised its Commerce Clause authority to enact
§ 2250(a)(2)(B), which punishes sex offenders who travel in interstate commerce
and evade registration requirements. No one disagrees with this use of
congressional power in SORNA. Furthermore, “Congress may regulate even
noneconomic local activity if that regulation is a necessary part of a more general
regulation of interstate commerce [and] the means chosen are ‘reasonably
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adapted’ to the attainment of a legitimate end under the commerce power.”
Gonzales v. Raich, 545 U.S. 1, 37 (2005) (Scalia, J., concurring in the judgment).
Justice Scalia’s view of the Necessary and Proper Clause was adopted by five
additional members of the Supreme Court , the five members of the majority in
Comstock .1 In Comstock, the Court explained that in determining whether the
Necessary and Proper Clause grants Congress authority to enact a particular
piece of legislation, “the relevant inquiry is simply ‘whether the means chosen
are “reasonably adapted” to the attainment of a legitimate end under the
commerce power’ or under other powers that the Constitution grants Congress
the authority to implement.” 130 S. Ct. at 1957 (quoting Raich, 545 U.S. at 37(Scalia, J., concurring in the judgment), in turn quoting United States v. Darby,
312 U.S. 100, 121 (1941)).
Congress thus clearly also had the authority to enact § 16913(a)-(c), which
lays out registration and updating requirements for sex offenders, and
§ 2250(a)(2)(A), which provides a criminal penalty for federal sex offenders who
knowingly fail to comply with § 16913(a)-(c). Congress’s imposition of registra-
tion and updating requirements on federal sex offenders, even if they never move
to another state, is reasonably adapted to the exercise of its powers under
SORNA because it is a necessary part of the comprehensive national system of
SORNA that Congress enacted. Without uniform and consistent registration
requirements, sex offenders could change their information or identity intrastate
— for example, by changing their names or residences — decline to register such
changes, and subsequently feel able to commit sex crimes and/or move to
another state undetected. In so doing, they would undermine Congress’s goal of
1
In declining to join the majority in Comstock, Justice Scalia did not question his prior
reasoning regarding the Necessary and Proper Clause; rather, he joined Justice Thomas’s
dissent in Comstock on the ground that the statute at issue did not effectuate Congress’s
exercise of an enumerated power. See Comstock, 130 S. Ct. 1949, 1970 (Thomas, J.,
dissenting).
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establishing a nationwide, comprehensive scheme for tracking the whereabouts
of sex offenders. The reasoning of other courts of appeals in cases dealing with
state sex offenders is equally applicable to federal sex offenders. See United
States v. Howell, 552 F.3d 709, 717 (8th Cir. 2009) (“Although § 16913 may reach
a wholly intrastate sex offender for registry information, § 16913 is a reasonable
means to track those offenders if they move across state lines. In order to
monitor the interstate movement of sex offenders, the government must know
both where the offender has moved and where the offender originated. Without
knowing an offender’s initial location, there is nothing to ensure the government
would know if the sex offender moved. The registration requirements are
reasonably adapted to the legitimate end of regulating ‘persons or things in
interstate commerce’ and ‘the use of the channels of interstate commerce.’”
(quoting United States v. May, 535 F.3d 912, 921 (8th Cir. 2008), in turn quoting
Lopez, 514 U.S. at 558-59) (internal quotation marks omitted)); accord United
States v. Guzman, 591 F.3d 83, 89-91 (2d Cir. 2010) (“Requiring sex offenders to
update their registrations due to intrastate changes of address or employment
status is a perfectly logical way to help ensure that states will more effectively
be able to track sex offenders when they do cross state lines. To the extent that
§ 16913 regulates solely intrastate activity, its means ‘are “reasonably adapted”
to the attainment of a legitimate end under the commerce power,’ and therefore
proper.” (quoting Raich, 545 U.S. at 37 (Scalia, J., concurring in the judgment)));
cf. United States v. Pendleton, 636 F.3d 78, 87 (3d Cir. 2011), cert. denied, 132
S. Ct. 1290 (2012) (same). Section 2250(a)(2)(A) gives the federal government the
complementary power to enforce SORNA’s registration and updating require-
ments against federal sex offenders and thus reasonably adapts Congress’
commerce clause power to effectuate Congress’s purposes in enacting SORNA.
And, as already explained, “it is entirely reasonable for Congress to have
assigned the Federal Government a special role in ensuring compliance with
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SORNA’s registration requirements by federal sex offenders — persons who
typically would have spent time under federal criminal supervision.” Carr, 130
S. Ct. at 2238.
In sum, Congress could reasonably conclude that 18 U.S.C. § 2250(a)(2)(A)
and 42 U.S.C. § 16913 (a)-(c) were “convenient, or useful” or “conducive” to the
“beneficial exercise,” McCulloch, 17 U.S. at 413, 418; see also id. at 421, of its
legislative power, were means rationally adapted to the attainment of a
legitimate end— a national comprehensive system for registering, updating, and
tracking sex offenders—under the commerce power, the spending power, or
under other powers that the Constitution grants Congress the authority to
implement. Comstock, 130 S. Ct. at 1957 (citing Raich, 545 U.S. at 37 (Scalia,
J., concurring in the judgment), in turn quoting Darby, 312 U.S. at 121).
III.
The majority is also clearly in error in concluding that SORNA’s provisions
do not apply retroactively to Kebodeaux because he served his sentence before
the enactment of SORNA on July 27, 2006. Quite to the contrary, the Act
authorized the Attorney General to specify the applicability of its requirements
to sex offenders convicted before its enactment. 42 U.S.C. § 16913(d); see United
States v. Johnson, 632 F.3d 912, 922 (5th Cir. 2011) (“When SORNA was
enacted, Congress elected not to decide for itself whether the Act’s registration
requirements — and thus § 2250(a)’s criminal penalties—would apply to persons
who had been convicted of qualifying sex offenses before SORNA took effect.
Instead, Congress delegated to the Attorney General the authority to decide that
question.”). On February 28, 2007, the Attorney General issued an interim
regulation stating that SORNA’s requirements “apply to all sex offenders,
including sex offenders convicted of the offense for which registration is required
prior to the enactment of that Act.” Applicability of the Sex Offender Registra-
tion and Notification Act, 72 Fed. Reg. 8894, 8897 (Feb. 28, 2007); (codified at 28
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C.F.R. § 72.3). Neither SORNA nor the Attorney General’s interim regulation
provides any exception for released pre-act federal offenders from the retroactive
application of SORNA’s registration and notification requirements.
Not only does the plain language of SORNA and the Attorney General’s
interim regulation make SORNA’s requirements retroactively applicable to
Kebodeaux and all other sex offenders, regardless of the dates of their convic-
tions or releases from custody, our prior decisions have consistently upheld
SORNA against similar challenges and arguments. In Johnson, we reaffirmed
our holdings in United States v. Whaley, 577 F.3d 254, 260-64 (5th Cir. 2009),
that SORNA does not violate due process, exceed Congress’s authority under the
Commerce Clause, or exceed the non-delegation doctrine; and our holding in
United States v. Young, 585 F.3d 199, 206 (5th Cir. 2009), that SORNA does not
violate the Ex Post Facto Clause. Also, in Johnson itself, we rejected a challenge
to the validity of the Act and the decision of the Attorney General to apply it to
persons whose convictions for sex crimes predate its enactment, holding that
SORNA does not violate the Tenth Amendment, and that the Attorney General’s
failure to comply with Administrative Procedure Act procedures prior to
promulgation of the interim rule was harmless. 632 F.3d at 930-33.
IV.
In summary, after agreeing with this courts’ prior decisions upholding
SORNA against Ex Post Facto, Due Process, Tenth Amendment, and other
attacks, the majority opinion offers no valid reason that SORNA is not a
reasonable adaptation of Congress’ spending power, commerce power, and power
to enact criminal laws to further and protect its enumerated powers, for the
legitimate end of establishing a comprehensive national sex offender registration
and notification system. Accordingly, in my view, SORNA is not unconstitutional
as applied to Kebodeaux.
For these reasons I respectfully dissent.
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HAYNES, Circuit Judge, joined by KING, DAVIS, STEWART, and
SOUTHWICK, Circuit Judges, dissenting:
I respectfully dissent. I would affirm Kebodeaux’s conviction.
I. The Original Challenge
I begin by addressing what we need no longer consider—a facial challenge
to Section 2250(a)(2)(A)’s constitutionality. In the district court, Kebodeaux
brought a broad-based challenge to Congress’s power to enact this section at all,
largely focused on Commerce Clause concerns. Before the original panel, though
mentioning the impact on him, Kebodeaux again largely confined his analysis
to the overall alleged unconstitutionality of this section discussing both the
“necessary and proper” basis and the Commerce Clause basis. His broad
assertions that Congress lacked power to provide civil collateral consequences
for federally-convicted offenders engendered the panel majority’s analysis of this
power. Only in supplemental briefing before the en banc court did Kebodeaux’s
argument begin to crystallize “solely” into an “as applied” challenge. Indeed, it
was not until oral argument before the en banc court that Kebodeaux’s attorney
finally conceded that Section 2250(a)(2)(A) could be constitutional “as applied”
to certain classes of offenders, just not Kebodeaux, i.e., that Congress has a
federal interest in the civil collateral consequences of federal offenses even when
those civil consequences are not imposed as part of the original sentence for the
offense.
The majority opinion continues in this vein, all but conceding that §
2250(a)(2)(A) is facially constitutional and declining to strike it down in its
entirety, as Kebodeaux originally sought so long ago in district court. Maj. Op.
at 3. Therefore, while I continue to stand by the panel majority opinion, 647
F.3d 137 (5th Cir.), vacated, 647 F.3d 605 (5th Cir. 2011), I will not reprise it
here (or further address the disagreements with it articulated by the majority
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opinion) beyond that necessary to address all that is left of the case—the as
applied challenge centered on Kebodeaux. In doing so, however, I note the
jurisprudential problems posed by an argument that changes from district court
to panel to en banc and the relative lack of utility in deciding Kebodeaux’s case
alone (not to mention the “narrow” group1 in which he falls) as an en banc court.
Respecting the right of my colleagues to address the present argument alone as
an en banc court, I address the “as applied” argument below.
II. Section 2250(a)(2)(A) is Constitutional As Applied to Kebodeaux
A. The Analytical Process
Any discussion of the constitutionality of a statute must begin with the
presumption of its constitutionality. See, e.g., United States v. Morrison, 529
U.S. 598, 608 (2000). As the majority opinion notes, the analysis “always starts
with a heavy thumb on the scale in favor of upholding government action.” Maj.
Op. at 7. The basic analysis focuses on whether the challenged statute
“constitutes a means that is rationally related to the implementation of a
constitutionally enumerated power,” United States v. Comstock, 130 S. Ct. 1949,
1956 (2010) (citing M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819),
and Sabri v. United States, 541 U.S. 600, 605 (2004)); and, that the statute must
reflect a “‘means . . . ‘reasonably adapted’ to the attainment of a legitimate end
under’” an enumerated power, id. at 1957 (quoting Gonzales v. Raich, 545 U.S.
1, 37 (2005) (Scalia, J. concurring)); see also id. at 1961 (“Moreover, § 4248 is
‘reasonably adapted’ to Congress’ power to act as a responsible federal custodian
(a power that rests, in turn, on federal criminal statutes that legitimately seek
to implement constitutionally enumerated authority).” (citation omitted)).
Starting with a presumption of constitutionality, Congress has “broad
1
As posited by the majority opinion, this “narrow group” presumably consists of federal
sex offenders released from prison and supervised release before SORNA’s enactment who do
not travel in interstate commerce after its enactment.
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authority” to enact laws that are rationally related to enumerated powers. Id.
at 1957. The majority opinion is right to distinguish this inquiry from due
process and equal protection rational-basis scrutiny, but that distinction by no
means lowers the high hurdle that Kebodeaux faces. See id. (“‘The Constitution
. . . leaves to Congress a large discretion as to the means that may be employed
in executing a given power.’” (quoting Lottery Case, 188 U.S. 321, 355 (1903)));
see also Morrison, 529 U.S. at 607 (“[Courts may] invalidate a congressional
enactment only upon a plain showing that Congress has exceeded its constitu-
tional bounds.”). Further, the Comstock Court outlined the sometimes distant
and indirect relationship between an enumerated power and a properly enacted
statute implemented in furtherance of the Necessary and Proper Clause:
Neither Congress’ power to criminalize conduct, nor its power to
imprison individuals who engage in that conduct, nor its power to enact
laws governing prisons and prisoners, is explicitly mentioned in the
Constitution. But Congress nonetheless possesses broad authority to
do each of those things in the course of “carrying into Execution” the
enumerated powers “vested by” the “Constitution in the Government
of the United States,” Art. I, § 8, cl. 18—authority granted by the
Necessary and Proper Clause.
130 S. Ct. at 1958. This statement provides the framework for any Necessary
and Proper Clause analysis.
With this general background in mind, I turn to the matter at hand.
Perhaps much of the disagreement between the majority opinion and the panel
majority opinion is in the framing of the issue. The majority opinion posits that
Congress in enacting Section 2250(a)(2)(A), and the Government in prosecuting
Kebodeaux under it, seek to “assert unending criminal authority” over convicted
federal sex offenders. If this premise were true, I would agree with the majority
opinion that Congress has exceeded its authority—albeit under the Ex Post
Facto Clause. However, because SORNA’s registration requirements are civil
in nature, as the majority opinion itself notes repeatedly (see, e.g., Maj. Op. at
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9 n.17), Congress appropriately exercised its power to prescribe civil collateral
consequences of a federal crime pursuant to the Necessary and Proper Clause.
B. Even under the Majority Opinion’s Test, Kebodeaux’s
Conviction is not Unconstitutional
The thrust of the majority opinion’s analysis focuses on the “jurisdictional
hook” needed for Congress to impose civil registration requirements on a
prisoner convicted of a federal crime. The majority opinion concedes that
Congress may place conditions on a federal prisoner’s release from custody, or
even impose sex-offender registration requirements on anyone under federal
government supervision, even if those requirements were not expressly included
as part of the prisoner’s sentence. When a federal prisoner, however, is
“unconditionally released,” the majority opinion posits that the federal
government forfeits its ability to impose civil collateral consequences for that
federal crime, here, molesting a young teenager. Therefore, the majority reasons
that because Kebodeaux was “unconditionally released” prior to SORNA’s
enactment, Congress has no authority to require him to register under the Act.
Ultimately, the majority opinion contends that “SORNA’s registration
requirements are civil and were enacted after Kebodeaux committed his crime,”
Maj. Op. at 11 (emphasis added), and that Congress cannot “pass a law to
protect society from someone who was once in prison but seven years ago had
fully served his sentence and had not since been in contact with the federal
government.” Maj. Op. at 12. In other words, Congress must “strike while the
iron is hot.”
Assuming arguendo that the majority opinion’s premise is correct—that
Congress must enact a civil collateral consequence statute while the particular
federal offender regulated is still within the federal government’s
grasp—Congress did so. The federal government seized and never relinquished
its registration authority over Keboeaux from 1999 to the present. As the
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majority opinion concedes, “federal law relating to sex-offender registration [has
existed] since 1994.” Maj. Op. at 9. All agree that Kebodeaux was convicted in
1999 of a crime committed that same year. Thus, to the extent Congress must
strike while the iron is hot, I will next examine how it did so.
The premise of the majority opinion’s jurisdictional analysis stems from
the fact that SORNA was implemented after Kebodeaux’s release, allegedly
leaving a gap in jurisdiction that prevents the federal government from
regulating civil consequences of his conviction pursuant to the Necessary and
Proper Clause. The majority opinion and Kebodeaux (through concessions by
counsel at oral argument) agree, however, that if SORNA had been implemented
while Kebodeaux was in custody or subject to supervised release, then this
argument would not apply.
Kebodeaux was, in fact, continuously subject to federal registration
authority from the time of his release through SORNA’s inception (and
thereafter).2 In 1994, Congress enacted the Wetterling Act, which subjected
certain sex offenders to registration requirements through a state-based
registration system. See 42 U.S.C. § 14071, repealed by SORNA § 129, Pub. L.
109-248, § 129, 120 Stat. 600 (2006). The Wetterling Act required states to meet
minimum requirements in order to receive federal criminal justice funds. Id. In
1996, Congress enacted the Pam Lychner Act, which retained the Wetterling
Act’s minimum ten-year registration requirement for sex offenders but expanded
lifetime registration requirements to a broader swath of offenders. See id. §
2
Pertinent to the conviction from this appeal is taken, Kebodeaux was aware at the
time in question of the need to register as a sex offender and does not contend confusion about
the need to do so after SORNA’s passage. Nor does he contend some inability to comply. In
this case, he stipulated that he moved from San Antonio, Texas to El Paso, Texas in August
of 2007 and reported to the El Paso police department to file the necessary registration forms.
At that time, he acknowledged knowledge of the registration requirements. Thereafter, he
moved back to San Antonio without re-registering. That failure to register triggered the
prosecution underlying this conviction.
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14072, repealed by SORNA. The Lychner Act also enhanced federal involvement
in the registration process, creating a national database designed to allow the
FBI to track registrants and to provide a mechanism for registration where
offenders resided in states that chose not to comply with the Wetterling Act. Id.
In addition, the Lychner Act created a federal criminal penalty for certain
offenders’ failure to register. Id. § 14072(i); Wayne A. Logan, Criminal Justice
Federalism and National Sex Offender Policy, 6 OHIO ST. J. CRIM. L. 51, 72
(2008); United States v. Smith, 481 F. Supp. 2d 846, 847-51 (E.D. Mich. 2007)
(concluding that although § 2250 did not apply to a defendant’s pre-SORNA
offense, defendant was subject to federal misdemeanor for failing to register
pursuant to the Lychner Act).3 The next year, the Jacob Wetterling Improve-
ments Act extended registration requirements to certain federal and military
offenders. See Pub. L. No. 105-277, 112 Stat. 2440; 42 U.S.C. § 14072(i).
In 1999, Kebodeaux was convicted under Article 120 of the United States
Code of Military Justice for one count of carnal knowledge involving a minor.
This offense invoked the Lychner Act’s federal registration requirement. Section
14072(i) required registration by any person “described in section 4042(c) of title
18.” 42 U.S.C. § 14072(i)(3) (effective Oct. 21, 1998 to July 26, 2009). Section
4042(c) included persons convicted of an “offense designated by the Attorney
General as a sexual offense for purposes of this subsection.” 18 U.S.C. §
3See also United States v. Torres, 573 F. Supp. 2d 925, 932 (W.D. Tex. 2008) (“While
the Act primarily was regulatory in nature, similar to SORNA, the Wetterling Act also
provided criminal penalties of up to one year for a first offense, and up to ten years for
subsequent offenses, for sex offenders who failed to register in any state they resided, worked
or were a student.”); United States v. Hinen, 487 F. Supp. 2d 747, (W.D. Va. 2007) (“The Jacob
Wetterling Act of 1994 directly imposes registration requirements on certain classes of sex
offenders, and the defendant is included within this class. . . . Regardless of the applicability
of SORNA to the defendant, as of the dates in question, the nature of his conviction required
him, under a long-standing federal law, to register in his state of residence and any other state
where he was employed, carried on a vocation, or was a student.”), reversed on other grounds
by United States v. Hatcher, 560 F.3d 222 (4th Cir. 2009).
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4042(c)(4)(E), repealed by SORNA (effective through July 27, 2006). Accordingly,
the Attorney General designated as a sexual offense for purposes of § 4042(c),
the military sex offense that Kebodeaux later committed: “Uniform Code of
Military Justice . . . 120B1/2 (Carnal knowledge).” 28 C.F.R. § 571.72(b)(2); see
Designation of Offenses Subject to Sex Offender Release Notification, 63 Fed. Reg.
69,386 (Dec. 16, 1998).4
Regardless of the state in which Kebodeaux chose to reside after his
release, he was required to register for at least ten years. If he lived in a state
that complied with the Wetterling Act’s minimum requirements, then
Kebodeaux was required to register with that state. See 42 U.S.C. §§
14071(b)(6)-(7), 14072(i)(3).5 If, however, he lived in a state that was not
minimally compliant, Kebodeaux was required to register with the FBI. Id. §
14072(c)-(d), (g)(2), (i). At the time of his original conviction, Kebodeaux’s
“fail[ure] to register in [the] State in which [he] reside[d],” (or with the FBI, if he
was in a non-minimally compliant state) was punishable for a first offense, of
imprisonment “for not more than 1 year6 and, in the case of a second or
subsequent offense under [14072(i)], . . . not more than 10 years.” Id. §
14072(i)(1),(3)-(4); see United States v. Mantia, No. 07-60041, 2007 WL 4730120,
4
The Department of Justice’s guidance on sex-offender release notification designated
“UCMJ offenses . . . [to make] clear that persons convicted of military offenses in pertinent
categories are persons described in 18 U.S.C. § 4042(c)(4) for all purposes, including post-
release change of address notice by federal probation officers for persons under their
supervision pursuant to section 4042(c)(2).” 63 Fed. Reg. 69,386.
5
42 U.S.C. § 14071(b)(7) required “minimally compliant” states to establish procedures
to accept registration information from residents convicted of federal offenses.
6
Based on this section, the concurring opinion filed by Judge Owen suggests that the
sentence was unconstitutional. In the briefing before our court, Kebodeaux has never
separately challenged his sentence; instead, he has sought only vacatur of his conviction. This
is probably because by the time his appellate brief was filed, he had already been released
from confinement such that any appeal of the sentence of confinement is moot. United States
v. Rosenbaum-Alanis, 483 F.3d 381, 382 (5th Cir. 2007).
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*1, 6 n.5 (W.D. La. Dec. 10, 2007) (unpublished).7
The Wetterling and Lychner Acts were folded into and repealed as stand-
alone acts on July 27, 2006,8 in an effort to further expand and unify national sex
registration requirements. Reynolds v. United States, 132 S. Ct. 975, 978
(2012).9 Until SORNA’s implementation (and continuing thereafter), Kebodeaux
had been continuously subject to federal registration requirements of some sort.
Though Kebodeaux challenges SORNA, using the majority opinion’s reasoning,
the federal government never gave up—or lost—its “jurisdictional hook” over
Kebodeaux. The majority opinion’s reasoning is based on a straightforward
syllogism: The federal government loses its right to enact civil collateral
consequences over a federal inmate once the inmate is unconditionally released
from its supervision; Kebodeaux was released from prison before SORNA’s
enactment; thus, the federal government no longer had federal jurisdiction over
Kebodeaux when it convicted him for failing to register under SORNA. Even if
we assume for the sake of argument that the majority opinion’s jurisdictional
premise is correct, Congress exercised “jurisdiction” over Kebodeaux while he
was still subject to federal restrictions. That one statute has been folded into
7
The majority opinion’s contention that Kebodeaux’s residence in a minimally
compliant state immunized him from federal requirements is incorrect. Maj. Op. at 4 n. 4.
Whether a state was minimally compliant or not affected where Kebodeaux was to register but
not whether he had to register. Therefore, Kebodeaux’s location in a minimally compliant
state did not impact the fact that he was subject to federal penalties for failure to register. See
42 U.S.C. § 14072(i)(3) (applying a federal penalty to particular federal offenders that
“knowingly fail[] to register in any State in which the person resides . . .” (emphasis added)).
8
The Adam Walsh Act made clear, however, that the effective date of the repeal of
predecessor registry programs would not take effect until at least July 27, 2009. See Pub. L.
109-248, §§ 124, 129, 120 Stat. 598, 600-01; see also Guidelines for Sex Offender Registration
and Notification, 73 Fed. Reg. 38030, 38035 (July 2, 2008) (noting that the Wetterling Act
would be repealed “upon completion of implementation period for SORNA”).
9
Reynolds addressed the narrow question of when and how SORNA’s particular
requirements become effective as to persons who committed their offense prior to its
enactment. It does not address Congress’s power to prescribe registration requirements for
those offenders.
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another does not alter this assertion of civil “power” and “jurisdiction” over
Kebodeaux as a convicted federal sex offender. Kebodeaux was always required
to register under federal law; the federal government never gave up its “federal”
interest in Kebodeaux as a convicted federal sex offender.
It is undisputed that SORNA revamped prior federal registration
requirements. Reynolds, 132 S. Ct. at 978. SORNA is a broader scheme that
applies to a greater number of sex offenders than the prior Acts. See 42 U.S.C.
§ 16911(5)-(8).10 In passing it, Congress sought to make prior sex offender
registration schemes “more comprehensive, uniform, and effective.” Carr v.
United States, 130 S. Ct. 2229, 2232 (2010). SORNA thus mandates more
comprehensive registration information and stringent check-in protocols. See
id. § 16914. Moreover, prior to SORNA’s passage, initial violations of federal
registration requirements only constituted a misdemeanor offense, see 42 U.S.C.
§ 14072(i), while SORNA makes failure to register a felony punishable by up to
ten years in prison, see 18 U.S.C. § 2250. Undoubtedly, then SORNA made
important changes to the scheme previously in place.
For purposes of addressing the majority opinion’s analysis, however,
SORNA’s broad applicability compared to prior law is of no relevance. If this
challenge is “as-applied,” as Kebodeaux now asserts, then the crux of the matter
as defined by the majority opinion is whether the federal government had
asserted jurisdiction to require civil registration over Kebodeaux as a convicted
federal sex offender when it had him in its grasp, not whether the two statutes
10
SORNA was enacted to create a “comprehensive national system for the registration
of sex offenders by creating a new set of standards for the states’ Megan’s Laws and imposing
registration obligations on sex offenders. The SORNA reforms were designed to ‘close
potential gaps under the old law, and generally strengthen the nationwide network of sex
offender registration and notification programs.’” United States v. Simington, 2011 WL
145326, at *3 (W.D. Tex. Jan. 14, 2011) (internal citations omitted). Assuming arguendo the
correctness of the majority’s analysis, the situation might be different if Kebodeaux fell in one
of those “gaps” pre-SORNA that was filled by SORNA. But that’s not the case.
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are exactly congruent.11 Because Kebodeaux was indeed subject to federal
registration requirements at the time of his release from prison under the
Wetterling and Lychner Acts and thereafter under SORNA, the “jurisdictional
hook” is not an issue. It makes little sense to contend that Congress lost its
power or “jurisdictional hook” over Kebodeaux simply because it updated the
national sex-offender registration system laws.
I see no reason to distinguish the jurisdiction (as a matter of federal
power) exercised over Kebodeaux under SORNA from that exercised under its
predecessor sex offender registry laws that applied to Kebodeaux. Therefore, if
we are to assume that Kebodeaux’s conviction would be constitutional had
SORNA been enacted while he was in prison or on supervised release, then his
conviction is constitutional given the continuous federal jurisdiction Congress
exercised over Kebodeaux from the time he committed his original sex crime,
through his imprisonment, at the time of his release, through SORNA’s passage,
and to the present day.
In sum, Congress did “strike while the iron was hot,” at least as to federal
sex offender Kebodeaux, who was convicted when SORNA’s predecessors were
in place and imposed the basic requirement to register as to which Kebodeaux
later ran afoul. Kebodeaux’s “as-applied” challenge, therefore, should fail, and
the conviction should be affirmed. From the majority opinion’s failure to do so,
I respectfully dissent.
11
Again assuming arguendo the validity of the majority opinion’s analysis, the
situation could be different if SORNA had fundamentally altered Kebodeaux’s requirements
by imposing some brand new obligation fundamentally different from registration. But
Kebodeaux’s basic requirement of registration stayed the same.
61