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Federalism and Sex Offenses

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The US Supreme Court today decided a case on the Sex Offender Registration and Notification Act (SORNA), a law passed by Congress in 2006.  The majority upholds SORNA as applied to the particular offender in a rather peculiar and fact-specific opinion.  The case is United States v. Kebodeaux, No. 12-418.
We have to turn to Justice Thomas's dissent to find out exactly what the defendant did. 

In March 1999, Anthony Kebodeaux had consensual sex with a 15-year-old girl when he was a 20-year-old Airman in the U. S. Air Force. He was convicted by a court-martial of carnal knowledge of a female under the age of 16, in violation of Article 120(b) of the Uniform Code of Military Justice (UCMJ). He was sentenced to three months' imprisonment and received a bad-conduct discharge.
Contrary to the assumption made by the Court of Appeals, Kebodeaux was already subject to a federal registration requirement, the Wetterling Act, at the time of his release and discharge.  The majority believes that act falls easily within the Necessary and Proper Clause as implementing Congress's clear authority to enact the military justice laws.  The changes made by SORNA to the preexisting registration requirement are not large.  Justice Breyer's opinion for the majority also goes into the public safety justifications for registration.  The Court need not agree that such laws really do enhance public safety; it is enough the Congress might rationally think they do.

That latter point is too much for Chief Justice Roberts.  If the law as applied here is "necessary and proper" to implement Congress's military discipline power, that should be the end of the analysis.  Congress has no general police power, so enhancing public safety generally cannot extend its power to a law it otherwise could not enact.  He concurs in the judgment only. 

Justice Alito concurs in the judgment on the theory that, by prosecuting a case federally that might have been tried by the state courts with the consequence of application of state registration requirements, the federal government has created a gap, and Congress has the power to fix that problem.

Justice Thomas dissents.  SORNA was enacted long after Kebodeaux left the service, so it has no impact on military discipline as applied in this case.  The Wetterling Act is irrelevant, as this case is not about the Wetterling Act.  Congress has no authority to make criminal laws to enhance public safety generally, without a stronger tie to an enumerated power than is present here.  That is the job of the state governments, not the federal government.  Justice Scalia joins most of this opinion, except the part that would call into question the marijuana case, Gonzales v. Raich.

What do we make of all this?  The narrow majority has upheld federal authority on some specific facts with rather strained logic.  This case could be limited to its unusual facts and go into the archives of rarely cited cases.  Then again, the Court could come down in the next case and say the distinguishing facts here don't really matter, as it did with Martinez v. Ryan followed by Trevino v. Thaler.  We will have to wait and see.

1 Comment

I must confess that I thought Judge Jerry Smith of the Fifth Circuit had it right in his opinion. The SCOTUS majority seems to stretch federal power to its outer limit.

I agreed with Raich, but, if today's majority isn't taking the reach of federal law too far, it's walking right up to the line.

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