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September 3, 2013

Second Circuit panel hints that SORNA might be subject to some Commerce Clause challenges

A helpful reader alerted me to a notable Second Circuit panel opinion today in US v. Robbins, No. 12-3148 (2d Cir. Sept. 3, 2013) (available here), in which the court hints that federal sex offender registration laws might at some point be subject to new Commerce Clause challenges in the wake of the Supreme Court's work in the "Obamacare" cases.  Here is how the opinion in Robbins gets started:

In August 2011, after traveling from New York to Nevada, defendant-appellant Nathan Robbins knowingly failed to update his registration as a sex offender, as he was required to do under the Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. § 16913.  He subsequently pled guilty to violating 18 U.S.C. § 2250(a), which makes it a crime for someone who is required to register under SORNA to travel in interstate commerce and knowingly fail to update his registration.  Despite his plea, Robbins retained the right to challenge the constitutionality of the statutes he admitted violating, and he brings just such a challenge here.

This Court has previously held that Congress acted within its powers under the Constitution’s Commerce Clause when it enacted SORNA.  See United States v. Guzman, 591 F.3d 83 (2d Cir. 2010).  Since then, however, the Supreme Court has revisited and further clarified — if that is the appropriate word — the reach of Congress’s power “[t]o regulate Commerce . . . among the several States.” U.S. Const. art. I, § 8, cl. 3; see Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) (“NFIB”).  Robbins invites us to revisit our holding in Guzman in light of the Supreme Court’s decision in NFIB.

We decline Robbins’ invitation not because his arguments all lack force, nor because the constitutionality of SORNA — particularly when applied within the states — is beyond question, see United States v. Kebodeaux, 570 U.S. ___, No. 12-418, slip op. at 5 (U.S. June 24, 2013) (Roberts, C.J., concurring in the judgment) (“The fact of a prior federal conviction, by itself, does not give Congress a freestanding, independent, and perpetual interest in protecting the public from the convict’s purely intrastate conduct.”), but because the constitutionality of SORNA as applied to Robbins remains unaffected by any limitations on Congress’s Commerce Clause power that may be found in NFIB. Still bound by the precedent set in Guzman, we therefore AFFIRM Robbins’ conviction.

September 3, 2013 at 11:24 AM | Permalink


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The sooner the SORNA house of cards falls apart, the better off we will all be as a country because most Court Rulings have been built on unconstitutional lies and self-deception from the very beginning, resulting in the re-incarnation of Jim Crow type laws..

Maybe then we will have policies and laws that actually serve their intent.

Posted by: albeed | Sep 3, 2013 11:39:36 AM

I don't think any retroactive registry could stand up to a campaign/Election challenge. If sex offenders have to give their information when they want to go on the road to campaign, Then why not everyone else with a criminal conviction of any sorts. Aren't our elections suppose to be equal rules for all. My second thought is, if we are a government of the people, how can the government set rules on who can run for office. I'm just a citizen, and not a lawyer. If sex offenders have limits to where they can live, then they also have limits on how many of them can vote at the town polls. Food for Thought.

Posted by: stephen | Sep 3, 2013 6:54:56 PM

Retroactive laws are totally unfair as many sex offenders may not have pleaded guilty 40 years ago or even 10 years ago if they had known their deal would be changed without their consent later on and how devastated their lives would become whether they were guilty or innocent. A plea deal is a contract like any other.

Laws being passed by cities and counties that ban sex offenders from certain areas and force them out to rural areas are interfering with and altering or even manipulating district lines, the census values, amount of money schools receive for number of children enrolled, voting results, etc. which is wrong. Consider also laws banning them from beaches, amusement parks, Chuck E. Cheese, and even the library interfere with commerce which is suppose to be a no-no.

Then there's the issue of taxes sex offenders pay like anyone else which are used to support (city, county, state)parks, libraries, etc that they are not allowed to use which makes me think they should be getting together and dumping tea into Boston's harbor again.

And how about all the friends of police, police, judges, prison guards, the wealthy, and politicians who have also crossed the line but are not being forced to register thanks to their pals. If the registry is not equally applied to all adults then it has no hope of achieving its stated goal and is useless. It just creates a false sense of security and allows parents to fail to do their job to educate, watch, and protect their own kids.

Posted by: Katrina | Sep 4, 2013 11:44:19 AM

I agree with Katrina it's time to dump the tea again. I also have no problem with tar and feathers. Since these laws that ban people from parks are civil, Then tax paying RSO'S should be getting their own parks and beaches just like African Americans did in the old days. Always remember that life is a 2 way street. people should start posting fliers about other types of crimes, but only for the public's safety and never revenge. A lot of towns post some where their crime reports, use them for the public's safety. I'd be willing to bet someone would jump at the chance to earn $20 bucks to hand them out.

Posted by: stephen | Sep 4, 2013 7:11:09 PM

I'm very surprised courts are upholding sorna, while its true traveling interstate is necessary for a crime, it criminalizes the travel, not the connection to a criminal act, for instance if one was convicted of robbing a bank or some crime 30 years ago, romeo and julet or whatever, and once decided to cross the state line for a county fair or merely visited washington dc, sorna applies even though the actual travel is not really interstate commerce, the fact that one committed a crime, even of a local or state issue, does not make you commerce.

Interestingly, since traveling is legal , how could a sorna conviction be upheld, for instance if one crosses state lines and murders someone , its a local crime, the feds should only get involved if the actual crime say kidnapping someone across state lines.

In other words if the actual crossing of state lines is not criminal or has not connection to any criminal act, the feds should not have police power to arrest someone for failing to register unless they are trying to evade registering (even that may be a local matter).

Of course the sex registry, is silly , but the word sex is a powerful word and tool that generates taboo and interest and fear, we don't have dui registries, or arson or violent criminal registries which the exception of a few states,

I think an arsonist or a someone who sells drugs to your children would be more of a threat than someone urinating in the bushes (in colorado legislators had to change the law because someone did end up on the registry due to that).

With all the talk about "protecting the children", isn't it odd that someone who violently beats a child , or sells them drugs, doesn't have to register, the same legislatures who know children go without healthcare and food oftentimes.

How did sex become equated with danger and not violent crime, if your someone who hates kids it may not have anything to do with sex.

Posted by: kris | Nov 27, 2013 3:34:44 AM

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