While this case is an out-of-circuit, district court case, the opinion is so good I wanted to note it here for those dealing with SORNA issues. The case is United States v. Edward Myers, No. 08–60064–CR–Zloch (S.D. Fla. Dec. 9, 2008). Judge William Zloch’s Final Order of Dismissal is 82 pages of thorough Commerce Clause analysis. In its conclusion, the court found that "Section 16913 [42 U.S.C. § 16913] transgresses entirely the limits set on Congress by the Commerce Clause. It cannot be defended except by adulteration of the text of the Constitution and controlling caselaw." The court goes on, "Section 2250 [18 U.S.C. § 2250] also exceeds that grant of power made to Congress under the Commerce Clause." The court delves into the Commerce Clause jurisprudence, analyzing the evolution of the case law and application of Lopez, Morrison, Raich, and Scarborough to SORNA. I cannot do the analysis justice here, in this limited space, but here are some highlights:
1) "Nothing links the registration of sex offenders with interstate commerce."
2) Section 16913 does not regulate any activity—rather, it regulates a status, that of being a sex offender.
3) Section 2250 does not criminalize travel for an unlawful purpose, nor does it criminalize failing to register during travel. Jurisdictional element of "interstate travel" is indefinite, requiring only that the person travels/has traveled in interstate commerce at some point. No purpose attached to travel and travel is divorced from the failure to register.
4) Section 2250 is not aimed at travel at all.
5) In dicta, the court does classify Section 2250 as "simply an administrative regulation of persons who are supposed to register under § 16913" and cites Smith v. Doe, which is not the most helpful approach for an Ex Post Facto challenge. This characterization of the SORNA and citation to Smith v. Doe is not a real strike against the opinion though, as many defenders are doing an excellent job meeting these challenges already.
6) The court goes so far as to suggest that Scarborough and the "minimal nexus test" have been called into question by United States v. Jones, 529 U.S. 848 (2000).
The court emphasizes that Congress "has no power to regulate a person simply because at some earlier time he has traveled in interstate commerce." The opinion is worth a read if you have a SORNA and/or Commerce Clause issue.