One Sausage, Different Lengths? Panel Agrees Necessary & Proper Clause Authorizes SORNA's Failure-to-Register Offense for Those With Federal Priors, But Disagrees As to Why

United States v. Kebodeaux, No. 08-51185 (5th Cir. Feb. 15, 2011) (per curiam) (Stewart, Haynes; Dennis, concurring in the judgment)

(Disclosure: My office represents Mr. Kebodeaux, so I'm limiting this post to just a summary of the two opinions, without any analysis of their merits.)

As you know, the Sex Offender Registration and Notification Act—or SORNA, to its friends—contains a criminal sanction to enforce the registration requirement.  The offense is found in 18 U.S.C. § 2250, and covers two classes of offenders: 1) those with state priors who travel in interstate or foreign commerce and fail to register or update their registration, and 2) those with federal priors who simply fail to register or update, even if they never leave their kitchens.  The Fifth Circuit, in United States v. Whaley, rejected a commerce-clause challenge to the portion of § 2250 that covers sex offenders with state priors.  But is § 2250 constitutional with regard to those with federal priors?  That's the question presented in Kebodeaux.

Kebodeaux was convicted of a sex offense under the UCMJ.  His sentence did not include a supervised release term.  After serving his prison term, he was dishonorably discharged from the Air Force.  Kebodeaux later moved to El Paso, where he complied with SORNA by registering as a sex offender.  Several months later, police found Kebodeaux in San Antonio.  He had not updated his registration.  The Government charged him with violating § 2250 by virtue of being a sex offender with a federal prior who failed to update his registration when he moved intra-state.  Kebodeaux pleaded guilty conditionally.

On appeal, Kebodeaux argued that the portion of § 2250 under which he was convicted is an invalid exercise of Congress's power to regulate interstate commerce because it reaches purely intrastate activity.  The court of appeals rejected Kebodeaux's challenge, but disagreed on the reasoning.  The panel majority, relying on the Supreme Court's decision in United States v. Comstock, held that the challenged portion of § 2250 is authorized by the Necessary and Proper Clause.  The concurrence said, and I'm paraphrasing here: "No, it's valid under the Necessary and Proper Clause.  See Comstock."

Confused?  Let's take a closer look.


First, the majority.  It viewed Kebodeaux's commerce-clause argument as beside the point, because he was not convicted of the portion of § 2250 that contains "the 'interstate commerce' jurisdictional hook."  More to the point here, "Congress has the right to criminalize sexual abuse of a minor by a member of the military, pursuant to its power to regulate the military under Article 1, Section 8, Clauses 14 and 16 of the United States Constitution. . . . The next question becomes whether Congress’s power over federal sex offenses stretches far enough to encompass a registration requirement."  Which brings us to the Necessary and Proper Clause and Comstock (which, you'll recall, upheld a statute permitting post-sentence civil confinement of "sexually dangerous" federal prisoners).

In Comstock, the Court began its analysis of the statute by “assum[ing] for argument’s sake that the Federal Constitution would permit a State to enact this statute.” With that assumption, the Necessary and Proper Clause question then is “whether the Federal Government, exercising its enumerated powers, may enact such a statute as well.” Analyzed this way, Kebodeaux’s suggestion that the fact that he no longer is in custody or on supervised release renders the federal government powerless over him is inapposite. No one challenges that a state may require registration of a state sex offender who has been released from custody and parole. So, too, may the federal government require a federal sex offender to register even if he is no longer in custody or on supervised release.

(cite omitted).  The court took from Comstock "the notion that Congress may pass laws rationally related or reasonably adapted to the effectuation of enumerated powers."  It ultimately concluded:

Reviewing the Comstock factors in light of the Court’s analysis, we conclude that the SORNA registration requirement for registration of federal sex offenders is rationally related to the original goals of the criminal statutes under which persons such as Kebodeaux were convicted. We conclude that interstate travel does not have to be part of the analysis.

Judge Dennis, while concurring in the judgment and agreeing that the Necessary and Proper Clause gets the statute from A to O.K., disagreed with the majority's approach of treating the federal-prior portion of § 2250 as a stand-alone provision.  Here's his two cents:

I conclude that § 2250(a)(2)(A)’s application to intra-state violations of SORNA by sex offenders convicted under federal law is necessary and proper to, that is, rationally related and reasonably adapted to, § 2250(a)’s other subsection, § 2250(a)(2)(B), which we have already upheld as a proper exercise of the Commerce Clause power. Whaley, 577 F.3d at 258. For these reasons, I agree that the judgment of the district court must be affirmed.

Although I agree with the majority in affirming the judgment of the district court, I cannot join the majority opinion because it departs from the doctrinal framework established by the Supreme Court for analyzing commerce clause legislation such as SORNA and its provisions that are at issue in the present case. Contrary to the clear teachings of the Supreme Court in Carr and this court in Whaley, the majority interprets § 2250(a)(2)(A) as a stand-alone statute that is rationally related only to a pre-existing military penal statute, rather than as a necessary and integral part of the commerce-clause-based SORNA. By trying to justify SORNA’s § 2250(a)(2)(A) as rationally related to the military law under which Kebodeaux was convicted and imprisoned, rather than reasonably adapted to SORNA’s regulation of interstate commerce, with which §2250(a)(2)(A) was enacted and made an integral part, the majority relies upon an altogether different legislative power that is, at best, only tangentially related to SORNA’s registration requirement. Consequently, I believe that the majority has fallen into serious error in reading Comstock to arrogate vast revisionary powers to judges, allowing them to uphold as necessary and proper any piece of legislation, regardless of the vehicle by which Congress enacted it, so long as the judges can in retrospect see a rational relationship between that law and some enumerated power.