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September 30, 2009

A timely note on the constitutional questions surrounding the Adam Walsh Act

I just came across this timely new Note on SSRN, titled "Federalism Challenges to the Adam Walsh Act," that is forthcoming in the Boston University Law Review. Here is the abstract:

This Note addresses two provisions of the Adam Walsh Act that have been challenged as violating principles of federalism: 18 U.S.C. § 4248, which provides for federal civil commitment of sexually violent predators, and 18 U.S.C. § 2250(a)(2)(A), which creates a new federal “failure to register” crime for federal sex offenders.  Part I provides background information on the Adam Walsh Act and these two provisions.  Part II examines the possible sources of constitutional authority for these provisions, the Commerce Clause and the Necessary and Proper Clause.  This Part explains that these two clauses provide the basis for most of the federal criminal law, and describes how they might be invoked to justify the Adam Walsh Act provisions at issue.  Part III argues that neither provision is justified independently by the Commerce Clause.  Finally, Part IV argues that neither provision is justified as a law necessary and proper for carrying into execution Congress’s power to enact federal criminal laws.  This is the chief rationale that the government has relied on in cases challenging the constitutionality of the civil commitment provision. Interestingly, the government has argued that the civil commitment provision is a law necessary and proper for carrying into execution Congress’s power to criminalize both federal offenders’ past federal crimes and possible future federal crimes.  This Note argues that neither provision is a law necessary and proper for carrying into execution the federal government’s power to prosecute, punish, or imprison individuals for past federal offenses.  Furthermore, neither provision is a law necessary and proper for carrying into execution the federal government’s power to prevent future federal crimes. Because the provisions at issue exceed Congress’s constitutional authority, they are invalid and must be struck down.  The Note concludes by suggesting how the provisions might be revised to pass constitutional muster.

Astute readers may know that the constitutionality of the civil commitment provisions of the AWA is before the Supreme Court this term in the Comstock case.  And the registration provision's constitutionality, which is now kicking around in circuit courts, will surely be influenced by whatever SCOTUS ends up doing in Comstock.

September 30, 2009 at 09:15 AM | Permalink

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If you push something hard enough it will fall over.

Posted by: Doc | Oct 1, 2009 2:53:49 AM

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