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.