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11th Circuit Rejects Constitutional Challenges to SORNA

March 29, 2009

sexcrimes.typepad.com : 11th Circuit Rejects Constitutional Challenges to SORNA.
interstate commerce challenge)

In United States v. Ambert , the 11th Circuit reviewed and rejected all of the major constitutional challenges to SORNA prosecutions under 2250(a). I had never heard of this case before, perhaps because the defendant was represented by a private attorney. Here is how the 11th Circuit addressed the Commerce Clause argument:

We have not had occasion to address this issue, although several district courts in this Circuit have done so. Most have found SORNA to be a proper regulation under Congress’ commerce power…. One district court, however, found that SORNA, 42 U.S.C. § 16913 and 18 U.S.C. § 2250, exceeded Congress’ commerce clause authority. United States v. Myers, 2008 WL 5156671 (S.D. Fla. Dec. 9, 2008) (unpublished)…. Section 2250 is a proper regulation falling under either of the first two Lopez categories because it regulates both the use of channels of interstate commerce and the instrumentalities of interstate commerce…. Plainly, § 2250 focuses on sex offenders, like the defendant, who travel in interstate commerce. In this focus, SORNA is analogous to a statute prohibiting church-based arson “in or affecting interstate or foreign commerce” upheld by this Court in Ballinger, and to the Mann Act prohibiting the transport of women “in interstate commerce” for an immoral purpose, upheld by the Supreme Court long ago in Caminetti v. United States, 242 U.S. 470, 491 (1917).

There are several things that are troublesome about the opinion. First, the 11th Circuit has had more than one opinion finding that 2250 cannot be supported under the Commerce Clause. In fact, there have been three such opinions, including United States v. Powers which is on the 11th Circuit calender for argument. Second, there is no mention of the USSC opinion in United States v. Morrison, despite the clear connection between the relevant statutes in terms of attempting to deter sexual violence. Third, the idea that punishing sex offenders for failing to register can be supported under the first Lopez category continues to boggle the mind. How are sex offenders “channels” of interstate commerce? Fourth, and perhaps most importantly, the facts of the Ambert case are especially egregious in terms of Commerce Clause justification. The alleged interstate travel by Ambert was a two day trip to California on July 9, 2007. In other words, his failure to register was in no way connected to his travel between states.

How could the 11th Circuit reached its conclusions with such important facts and errors present in the case and opinion? In defense of the court, the brief for Ambert spent less than two pages on the Commerce Clause argument (despite the 11th Circuit being a hotbed for district courts finding no basis for SORNA prosecutions under the Commerce Clause). In that limited section, there was no mention of the district court decision within the 11th Circuit in United States v. Powers which found no justification under the Commerce Clause months before the brief was filed. The result is, thus, especially disappointing because appeals from the cases where Commerce Clause arguments were won at the district court are now precluded from any chance of success at the 11th Circuit.
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