Argument Preview: Can Congress Penalize a Pre-SORNA Sex Offender for Failure to Register?

The Supreme Court will hear arguments tomorrow in U.S. v. Kebodeaux, a case testing whether Congress can penalize a sex offender for failure to register, when the offender was convicted and released before Congress enacted the penalty in the Sex Offender Registration Act.

In short, Kebodeaux's theory is that he was "unconditionally" released from federal custody before Congress required him to register through SORNA.  Thus, he was outside of federal authority when Congress "reasserted" authority over him.  He says that this exceeds congressional power.

The government claims that Kebodeaux was still subject to federal authority after his release but before SORNA, through a federal penalty for failing to register in the Wetterling Act, SORNA's precusor.  And it says that even if he weren't, it could later penalize his failure to register through SORNA. 

The case tests the limits of congressional authority, but just barely.  That's because the facts are narrow and limited--dealing only with congressional authority to penalize a pre-SORNA offender for failure to register.  It's not a full-throated challenge to congressional authority to require registration. 

Moreover, both parties give the Court a non-constitutional option.  The government says that the Court could simply rule that Congress still exercised authority over Kebodeaux after his release, and remand for further proceedings consistent with that holding.  Kebodeaux argues in the alternative that SORNA doesn't even apply to him.

Still, we're likely to at least hear robust discussion tomorrow about the scope of congressional authority under U.S. v. Comstock, the OT '09 case holding that Congress can authorize, under the Necessary and Proper Clause, the civil detention of federal prisoners who are "sexually dangerous" even beyond their original sentence.  Both parties put the case front-and-center in their arguments.

For more, here's my argument preview at SCOTUSblog.

SDS