Monday, June 24, 2013

Court Upholds Sex Offender Registration

The Supreme Court ruled (7-2) today that Congress can require a former member of the Air Force to register as a sex offender, and to punish his failure to register, for a crime he committed while in the Air Force.  The ruling in United States v. Kebodeaux means that the defendant and former airman, Kebodeaux, is subject to federal criminal sanctions for failing to register.  It also means that Congress can enact laws that are "necessary and proper" to execute other validly enacted federal laws, in a way that leads to potentially vast congressional authority.  Our last substantive post is here.

Central to the Court's ruling is that Kebodeaux was subject to a federal registration requirement when he committed his sexual offense as a member of the Air Force, and that his registration requirement under the Sex Offender Registration and Notification Act, or SORNA, was simply a continuation of that registration requirement.  In particular, the Court held that Kebodeaux was subject to a registration requirement under the Wetterling Act, SORNA precusor, when he committed his crime and when he was released from military detention as punishment for his crime.  The Court said that SORNA was simply a modification to that registration requirement.  Thus, because Kebodeaux was subject to continuing federal authority--from the time of his service, through the time of his crime, through the time of his initial registration requirement (under the Wetterling Act), through the time of his later registration requirement (under SORNA)--he could be punished for failing to register under SORNA.

Justice Breyer wrote the majority opinion.  He adopted an approach similar to his approach in United States v. Comstock, the case three years ago in which the Court upheld congressional authority to authorize a federal district court to order the civil commitment of a "sexually dangerous" federal prisoner, even beyond the term of his original sentence.  That approach looks to the original authority (here, congressional power of Military Regulation), and moves step-by-step outward to congressional acts that are necessary and proper to support the original action, or the most-recently-enacted action.  Here, Congress could punish Kebodeaux for his original sex crime, committed while he was in the Air Force; it could require him to register upon release from military custody (under the Necessary and Proper Clause); and it could alter the terms of his registration requirement later, under SORNA (under the Necessary and Proper Clause).  This approach could lead to vast congressional authority--so long as Congress can support its most recent action as "necessary and proper" to execute its last-validly-enacted law.

Chief Justice Roberts and Justice Alito each concurred in the judgment only and each wrote separately to emphasize limits to this power.  Chief Justice Roberts wrote that Justice Breyer went too far in saying how SORNA was reasonable; he thought that that might be read to support a general police power--something that Congress does not have.  Justice Alito wrote that Congress could enact SORNA, because Congress helped create the problem that SORNA is designed to address.

Justice Thomas dissented, joined in large part by Justice Scalia.

The case is on its face a narrow ruling--saying only that Congress can require continued registration of someone over whom it already has authority.  But the language and approach adopted by the majority--and joined by seven Justices--is potentially very broad, potentially leading to vast congressional authority.


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