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U.S. v. Powers Ends with a Whimper

March 29, 2009

sexcrimes.typepad.com : U.S. v. Powers Ends with a Whimper.

After a strong district court opinion finding that SORNA was an unlawful exercise of federal power under the Commerce Clause, I was optimistic that the 11th Circuit might be the first circuit to reach a similar holding. However, after a panel the other week decided the issue based upon meager briefing on the issue, the outcome in Powers was inevitable. In a brief opinion, the 11th Circuit found for the government and reversed the district court:

In United States v. Ambert, __ F.3d __, No. 08-13139, 2009 WL 564677 (11th Cir. March 6, 2009), this Court held both the registration provisions set forth at 42 U.S.C. § 16913 and the failure to register offense set forth at 18 U.S.C. § 2250(a) do not violate the Commerce Clause. Id. at *8-9. We concluded § 2250 falls within Congress’s power to regulate “both the use of channels of interstate commerce and the instrumentalities of interstate commerce.” Id. at *8. We also concluded “the requirement that sex offenders register under § 16913 is necessary to track those offenders who move from jurisdiction to jurisdiction.” Id. at *10.
Ambert controls here. The district court erred in dismissing the indictment against Powers on the ground that SORNA exceeded Congress’s authority under the Commerce Clause. Accordingly, we vacate the order of the district court and remand for reinstatement of the indictment.

This case illustrates the problem of panel preclusion in federal appellate courts. If one three-judge panel decides an issue first, even based upon bad reasoning and limited briefing, other panels in the same circuit are bound to follow the decision. And the result in this case is even more disappointing as a result.

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