Kebodeaux Discussion Preview on SCOTUSblog

A week before the arguments are heard by the United States Supreme Court, the folks at SCOTUSblog have this commentary on the case, and what it all means. Below are some notable excerpts of the article.

This is a narrow case. It involves a defendant who represents a relatively small and, with time, diminishing class of individuals (those with sex-offender convictions pre-SORNA). It involves a defendant who is subject to SORNA by virtue of his military conviction, and not his interstate travel. And it involves a challenge to SORNA’s penalty provision, and not its other provisions (including its registration provision, although it may be hard to separate the two here).

Moreover, the Fifth Circuit ruling is by its own terms quite narrow, striking SORNA only as it applies in these “specific and limited facts.” The government sought review on, and the parties argue, even narrower questions. And both parties offer potential ways for the Court to dodge the core constitutional question. The government argues that the Court could simply correct the Fifth Circuit’s erroneous premise that Kebodeaux was not under a continuing federal registration obligation pre-SORNA and remand for further proceedings. Kebodeaux, for his part, argues that his failure to register occurred before SORNA applied to him, and therefore that he could not be validly convicted for failing to register under SORNA. (He says that the Attorney General had not yet issued valid regulations specifying that SORNA applied to pre-SORNA offenders when he failed to register.)

In short, this is no broadside challenge to congressional authority to require sex-offender registration. Instead, it is a very narrow case. And we can expect the Court to address it that way.

Still, bigger issues are likely to emerge in the arguments. Thus, look for the Court to press the government for limits on congressional authority, and to ask the government about federal intrusion into areas of traditional state concern. In other words, some on the Court are likely to worry about whether the government’s theories lead to an expansive federal power that can encroach too far on the states.

On the other hand, look for the Court to ask Kebodeaux about the sweep of federal power under Comstock, especially when Kebodeaux came under federal authority because of his military service, and not because of his interstate travels. Look for the Court also to test Kebodeaux’s theory of federal control pre-SORNA, given the full sex-offender registration scheme under the Wetterling Act (including the federal penalty for failure to register, and also including the federal financial incentives for states to create their own registrations and other features of the Act). The Court could see SORNA’s application to Kebodeaux as only a modest additional exercise of federal authority, given these considerations.