SORNA and the Tenth Amendment

June 25, 2009

thefacultylounge.org : Sex Offender Registration (SORNA) And The Tenth Amendment.

Doug Berman points to an interesting opinion from the Supreme Court of Missouri. It raises some complicated standing issues under the Tenth Amendment and begs the question of whether a state itself has an interest in enforcing state constitutional provisions specifically designed to protect state citizens from the state government. Here’s the background.

The federal government adopted SORNA – the Sexual Offenders Registration and Notification Act – which requires that sex offenders register in any jurisdiction where they live. The Attorney General determined that the law was retroactive – offenders convicted before the law was adopted are nonetheless required to register. (The federal bench has already held that this sort of retroactive application does not violate the U.S. Constitution’s ex post facto clause.) The federal government does not orchestrate this registration. In Missouri, for example, offenders register with a state agency. Various offenders sued in Missouri state court arguing that, because their conviction predated the registration legislation, the state was violating the state constitutional bar on ex post facto laws. The lower court ruled in favor of the offenders. On appeal, the Supreme Court held that registration was not subject to state constitutional limitations because federal law mandated respondents to register.

Let me issue the usual caveat. I am most certainly not a constitutional law expert. But it strikes me that if the State of Missouri is the party doing the registration, the state’s conduct ought to be regulated by state constitutional law – unless federal law trumps. It’s not that offenders are required to register by federal law; it’s that the act of registration is being conducted by the State of Missouri. Missouri may argue that they’re compelled to conduct this registration – whether or not it would be constitutional under state law – because of federal supremacy. But it strikes me that Missouri might have a colorable Tenth Amendment claim here – if it chose to bring it – because the federal government is comandeering the state’s machinery to do its work. As a result, it might well be unconstitutional to compel Missouri to collect this information. Missouri can continue to collect the data, of course, but it would be doing so by choice. And then, logically, the registration procedure would be subject to state constitutional law.

The problem, in this instance, might be standing. The Eighth Circuit in U.S. v. Hacker, for example, recently held that individuals do not have standing to enforce the Tenth Amendment. (There is a circuit split on this issue.) But the Eighth Circuit did suggest there might be a small space for individual standing:

We note that at least one appellate court has speculated that a private party could assert a Tenth Amendment claim by showing that its claim “align[s] with the state’s interest.” Parker, 362 F.3d at 1284 (citing Mountain States Legal Found. v. Costle, 630 F.2d 754, 761 (10th Cir. 1980)).

So my question, long winded as it may be, is this: does the state constitution’s guarantee of individual rights (here, its ex post facto provision) constitute a “state interest” such that the individual’s assertion of this interest – notwithstanding a state attorney general who prefers not to enforce it – is actually in perfect alignment with the state’s interest? Or do we understand a state interest to be whatever the elected officials prefer to support at any given time, irrespective of the constitutionality of the AG’s preferences under state law?

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