2. Under the federal Sex Offender Registration and Notification Act (SORNA), sex

Question

2. Under the federal Sex Offender Registration and Notification Act (SORNA), sex offenders must register and update their registration as sex offenders when they travel from one state to another. David Hall, a convicted sex offender in New York, moved to Virginia, where he did not update his registration. He was charged with violating SORNA. He claimed that the statute is unconstitutional, arguing that Congress cannot criminalize interstate travel if no commerce is involved. Is that reasonable? Why or why not? 2

Explanation / Answer

David's claim is not reasonable .

David's travel affects "interstate commerce" because he is a person that affects interstate commerce for which Congress can regulate under the Commerce Clause [U.S. Const. art. 1, sec. 8, cl. 3] provided a jurisdictional element is properly placed into the Act. See, Gibbons v. Ogden, 22 U.S. 1 (1824). Remember in Wickard v. Filburn, 317 U.S. 111 (1942), Filburn did not move the wheat; however, the Court ruled that it was still subject to Agricultural Adjustment Act of 1938 and thus subject to government regulation.

David was placed on notice, therefore the law does not offend procedural due process, nor does it violate substantive due process or treat him any different than any like individual to violate equal protection component of due process under the Fifth Amendment.

SORNA does not violate the ex post facto provision of the Constitution because David is being held subject to the failure to register provision which is a fresh violation.

The Commerce Clause gives Congress power to regulate movement of "person" or "things" in OR that affect interstate commerce; therefore his movement alone as a regulated person subjects him to the penal provisions of SORNA.

The government can demonstrate a compelling interests for enacting SORNA against David's fundamental right to travel. SORNA does not prohibit travel; it requires registration which is the central component; or at least in an equal protection analysis, the government can show it must be shown that the law or policy being challenged furthers an important government interest in a way that is substantially related to that interest; or the enactment in question is "rationally related" to a "legitimate" governmental reason offered as its justification.

Finally, I think Chief Justice William H. Rehnquist said it best in making his way through the Court’s long lists of precedents to strike down a federal law that had criminalized the possession of a gun near a school. He declared that the commerce power extends to (1) “the use of the channels of interstate commerce”; (2) the regulation of “instrumentalities of interstate commerce, or person or things in interstate commerce”; and (3) a local commercial activity having a “substantial relation” to interstate commerce. David's failure to register may or may not be a "commercial activity"; however, if it is, Rehnquist argued that the effects prong of the commerce power applies when the activity is a commercial activity. He insisted that the rule of substantial effects must be observed.

In my point of view, the Court may dispose of SORNA challenges in a piecemeal fashion the same why it did when Congress enacted the Gun Control Act of 1968.

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