When is Circuit Agreement Really a Circuit Split?

The Adam Walsh Child Protection and Safety Act (AWA), enacted in 2006, created a new federal crime of “Failure to register.” Section 18 U.S.C. 2250 allows for prosecution of sex offenders who do not register as required by the Sex Offender Registration and Notification Act (SORNA) which is part of the AWA. Importantly, for a prosecution to occur under 18 U.S.C. 2250(a)(2)(B), the government must show that an offender “travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country.” I have argued that this jurisdictional limitation is inadequate to support Commerce Clause authority for 2250(a) prosecutions. To date, seven district courts have agreed with me on that argument.

So far, only the Seventh, Eighth, Tenth, and Eleventh Circuits have considered defendant arguments related to the Commerce Clause and each has rejected the defendant’s position. As a result of this circuit consistency, the Commerce Clause challenge to SORNA seems like an unlikely candidate for a certiorari grant by the U.S. Supreme Court. There are, however, important inconsistencies among the opinions due, in part, to the mess the Court has created in the aftermath of Gonzales v. Raich.

After United States v. Lopez, there are three permissible categories for regulation of interstate commerce under the Commerce Clause: 1) “the use of the channels of interstate commerce”; 2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities”; and 3) “activities that substantially affect interstate commerce.” Lopez, United States v. Morrison, and Raich all pertained to the third category of interstate commerce.

The Eighth Circuit has twice addressed the issue (with slightly different challenges). In the first case, United States v. May, the court found that the statute could be supported under the first two categories without much explanation. When the Eighth Circuit revisited the issue with a slightly different twist, in United States v. Howell, the court didn’t make a first or second category finding and instead adopted the rationale that portions of SORNA served “a legitimate end under the commerce clause.” The Tenth Circuit, in United States v. Lawrance, primarily focused on a first category classification. However, the opinion is baffling since it relied on the Court’s 1964 decision in Heart of Atlanta Motel v. United States noting that Congress has the authority, “to keep the channels of interstate commerce free from immoral and injurious uses.” Citing a pre-Lopez case for a proposition that cannot possibly be reconciled with Lopez or Morrison seems odd, to say the least. The Eleventh Circuit just issued its opinion in United States v. Ambert, again relying on the first and second categories. However, that opinion is riddled with problems including a failure to even cite Morrison, a decision which seems especially relevant given that the statute at issue in that case was also designed to combat sexual violence. The Seventh Circuit’s holding is least informative as Judge Posner, in United States v. Dixon, disposed of the Commerce Clause argument in two sentences with no references to the Lopez categories.

The reliance on the first two categories might seem odd since some commentators thought the federalism revolution of the Rehnquist court ended when the court adopted an expansive view of the third category in Raich. Nonetheless, the circuit courts are selectively applying third category ideas (like jurisdictional limits) to first and second category classifications while ignoring contrary third category ideas (like the lack of congressional findings).

However, the failure to confront the third category highlights another problem with the varied reasoning of the circuit courts. How can courts reconcile the outcomes in Lopez and Morrison with their new interpretations of the first and second categories? After all, the facial challenge in Lopez should have failed because it could be shown that some defendants might have traveled in interstate commerce whether or not the gun near a school had a substantial effect on interstate commerce. Similarly, the VAWA tort action should have been upheld because some civil defendants would have surely traveled between states.

The notion that everyone who travels between states is subject to federal jurisdiction is at odds with our system of federalism. The facts of Ambert make clear the broad reach of SORNA. In that case, the defendant took a two-day trip from Florida to California which did not require a change in registration and was wholly unrelated to the defendant’s failure to register. Nonetheless, the vacation provided sufficient basis for federal jurisdiction. Whether one agrees or disagrees with my substantive argument regarding that issue, the Court should step in to clean up its mess even absent a clear circuit split. Each of the circuits has reached the same result regarding these Commerce Clause challenges. However, the underlying methods are so varied and muddled such that it is clear that the Court has not offered clear guidance how to resolve these cases. The Court should issue certiorari in one of these cases to explain: 1) the continuing relevance of Morrison and Lopez after Raich; 2) how broad the first two Lopez categories are; and 3) if broad definitions of the first two categories can be reconciled with Morrison and Lopez. While there is no classic circuit split, the varied methodologies of the circuit courts have created the same uncertainty of law that are associated with such splits.

For those interested, the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security is having hearings today regarding SORNA and the AWA. You can listen along here.

Cross Posted at Sex Crimes.

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1 Response

  1. Posting Update from:

    U.S. Congress to hear testimony regarding the Adam Walsh Act

    You can read witness submissions below

    Witness List

    Emma J. Devillier

    Asst. Attorney General

    Criminal Division

    Office of the Attorney General of LA

    Chief Sexual Predator Unit

    Baton Rouge, LA

    Madeline Carter


    Center for Sex Offender Management

    Center for Effective Public Policy

    Silver Spring, MD

    Ernie Allen

    President & Chief Executive Officer

    National Center for Missing & Exploited Children

    Alexandria, VA

    Mark Lunsford

    Father of Jessica Lunsford

    the Victim of a Sex Offense

    Homasassa, FL

    Det. Robert Shilling

    Seattle Police Department, Sex and Kidnapping Offender Detail

    Sexual Assault and Child Abuse Unit

    Seattle, WA

    Amy Borror

    Public Information Officer

    Office of the Ohio Public Defender

    Columbus, OH

    Amy Borror arguably made the most comprehensive and convincing arguments in her testimony.