More on the Waybright decision finding federal SORNA provision unconstitutional

As first noted in this post, U.S. District Judge Donald Molloy last week found constitutional problems with provisions of the Adam Walsh Act in US v. Waybright, No. CR 08-16-M-DWM (D. Montana June 11, 2008).  I just received from a friendly reader, and now have made available for download below, the full text of the opinion.  Here is how it starts:

Bernard Lenwood Waybright was charged in a two-count indictment with failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a).  Section 2250(a) is part of the Sex Offender Registration and Notification Act (“SORNA” or the “Act”).  The section makes it a federal crime for a sex offender who is required to register under SORNA to travel in interstate commerce and then fail to register.  Waybright was convicted of a crime in West Virginia that obligated him to register under SORNA. He traveled to Montana, and did not register with local law enforcement authorities in Montana.

Waybright filed three motions to dismiss the indictment, asserting seven different legal grounds for dismissal.  He contends: (1) Congress exceeded its power under the Commerce Clause in enacting SORNA’s registration requirements and making it a federal crime to fail to register; (2) SORNA violates the Tenth Amendment because it requires state officials to accept federally-mandated sex offender registrations before any state chooses to implement SORNA; (3) SORNA violates the right to travel because it subjects sex offenders who move to another state to stiffer registration requirements and penalties than those that remain in a single state; (4) Congress violated the non-delegation doctrine by authorizing the Attorney General to determine whether SORNA applied retroactively; (5) regulations issued by the Attorney General pursuant to SORNA violate the Administrative Procedure Act because they were promulgated without notice and comment; (6) Waybright cannot be convicted of violating 18 U.S.C. § 2250(a) because Montana has not implemented SORNA; and (7) Waybright’s conviction would violate due process of law because Waybright was not notified of his obligation to register under SORNA.  Oral argument on Waybright’s motions took place on June 4, 2008.

No court of appeals has addressed Waybright’s arguments. It is evident that the same or similar arguments have been raised in district courts around the country.  These courts have mostly rejected such challenges for varying reasons. In my view, those district courts have it right for the most part. I conclude that all of Waybright’s arguments, except one, lack merit. I agree with Waybright’s claim that enactment of 42 U.S.C. § 16913, which requires all sex offenders to register regardless of whether they travel in interstate commerce, is not a valid exercise of Congress’ power under the Constitution. I therefore declare 42 U.S.C. § 16913 unconstitutional. Moreover, because Waybright cannot be convicted of failing to register under § 2250(a) unless the government proves he was required to register under § 16913, the Indictment against Waybright must be dismissed without prejudice.

Download waybright_awa_ruling.pdf