Any time the Court considers a question of congressional authority, it will be concerned about limits. That’s because the Constitution grants Congress only certain enumerated powers, and the Court worries that any particular exercise of congressional authority could be a step down a slippery slope to a generalized federal police power. (Remember Justice Scalia’s question about the “broccoli mandate” in last year’s Affordable Care Act cases?) The best way to ensure against that is to define an outer limit on congressional authority – a point beyond which Congress cannot go.
The Court’s worry about limits was on full display at oral arguments in United States v. Kebodeaux, the case testing whether Congress has authority to penalize a sex offender who was convicted and completed his sentence before the enactment of the Sex Offender Registration and Notification Act for failure to register. This application of SORNA treads on the outer boundary of congressional authority, so a limit on the government’s theory is particularly important. But the Court was concerned about another limit, too – the limit on Kebodeaux’s theory of restraint on congressional authority. Just as the Court was concerned about defining a limit on the government’s theory, it was also concerned about not boxing Congress in.
As concerned as the Court was with limits, however, the parties didn’t – and probably couldn’t – do much to help it. Deputy Solicitor General Michael Dreeben bobbed and weaved around questions on the government’s limit, declining (as he must) to define a determinate boundary on congressional authority. And Assistant Federal Public Defender Carolyn Fuentes dug her heels in on a theory of congressional authority that sometimes seemed too constrained and at other times seemed more like a theory of individual rights – but was exactly the theory that she had to adopt to represent Kebodeaux.
Still, if the questions at arguments are any indication, limits are likely to drive the outcome. At least, it is limits on congressional authority that at least partially animated Justice Kennedy’s and Justice Alito’s concurrences in United States v. Comstock and Chief Justice Roberts’s and Justice Sotomayor’s questions at oral arguments. If a majority cannot identify workable limits to congressional authority here, some or all of this group could switch and join Justices Scalia and Thomas, the dissenters in Comstock, to take the Court in the other direction.
(Arguments suggested something else, too. They suggested that the Court is ready to take on the principal issue of congressional authority – and even the issue of congressional “reassertion” of authority over Kebodeaux, assuming that the government lacked authority over him after his release. It now seems unlikely that the Court will rule more narrowly.)
Deputy Solicitor General Dreeben opened oral arguments with a full-throated, unapologetic defense of congressional authority to require Kebodeaux to register, even if the government had no authority over him after his release but before SORNA’s enactment, in order to protect public safety. The Court pounced. Justice Sotomayor immediately pressed him for a limit to his theory. She later asked whether Congress under this theory could require all federal convicts to take a DNA test to determine the likelihood of recidivism. Justice Scalia later asked him for a limit, too: Does the government’s theory allow Congress to require registration for all crimes? Justice Alito chimed in, asking how the government could require someone who was convicted of a crime while in the armed forces, but who no longer had any connection to the armed forces, to register because of that crime. Dreeben answered that registration was connected to the military crime (itself authorized by congressional power to regulate the military) through several links by way of the Necessary and Proper Clause – much like the Court’s analysis of the first factor in Comstock. But this didn’t seem to satisfy Chief Justice Roberts, who criticized the government’s theory, saying in rebuttal that “[Congress] can say anyone in the military is subject for the rest of their life to Federal jurisdiction. Whatever is a State law crime is a Federal crime.”
Dreeben’s responses didn’t seem to satisfy the Chief Justice’s concerns and the various pleas for limits. In fact, in response to a statement by the Chief Justice in rebuttal, Dreeben could only say, “I’m not going to say no to that question, because I don’t want to foreclose options that Congress may decide it’s appropriate to pass.” (Justice Scalia then joked, “Right. Who knows what they’ll do, right?”) But Dreeben did give a clear statement of the government’s theory, in response to a question by Justice Kagan, asking for the theory in Commerce Clause terms:
Somebody who violates a Federal law that’s premised on the Commerce Clause, say a sex offender who travels in interstate commerce with the intent to commit a sex offense, has placed himself within the regulatory authority of the Federal Government. Now, that individual can be criminally prosecuted for that violation, and that violation furthers Congress’s interests in regulating interstate commerce.Congress could also decide, you know, for some of these sex offenders, criminal punishment is not the right approach. The right approach is [to] mandate sex offender rehabilitative counseling. And it might discover that that’s so effective for a class of offenders that it’s going to apply that even to people whose offenses were committed before the law in question is passed. It can’t punish those people based on retroactive legislation, but it can reach them with a civil remedial measure so long as it passes through the Comstock-style analysis of the Necessary and Proper Clause.
But Chief Justice Roberts distinguished Comstock, saying that the government created the problem in that case by housing prisoners away from their home state, and that the states in that case weren’t taking care of the problem (as they are here, through state registries). Justice Sotomayor distinguished Comstock, too, but in a different way: she pointed out that Comstock didn’t rely only on the government interest in protecting the public, the way the government argues here. (Justice Scalia later picked up on this theme, too.) General Dreeben didn’t have a strong response, and the questions suggest that if Comstock represents an outer limit to congressional authority, this case goes beyond it.
Justices Scalia and Kennedy also had a different concern – that SORNA registration raised due process and ex post facto problems. In particular, they both expressed some worry that the government’s after-the-fact application of SORNA to Kebodeaux raised ex post facto problems. Dreeben argued that the Ex Post Facto Clause applies only to criminal cases, not civil proceedings, but it’s not clear that he assuaged this concern. (The government’s distinction between civil and criminal proceedings for ex post facto purposes raised a whole series of other questions and concerns, including a concern about due process. Justice Scalia asked whether the government could dodge ex post facto concerns simply by labeling an act “civil.”)
Ms. Fuentes attacked SORNA’s application to Kebodeaux, because he was not under federal authority after his release but before SORNA’s enactment, and because he didn’t have notice of SORNA’s registration requirement when he was released. The Justices pounced equally on her. Justices Breyer, Alito, Sotomayor, and Kagan all asked in different ways why SORNA’s application to Kebodeaux is any different than the government’s power to authorize a judge to change conditions on an ex-inmate’s supervised release. Justice Kagan asked later why SORNA couldn’t apply to Kebodeaux after his release if it could have applied to him if it were on the books when he was in prison. Ms. Fuentes’s answer was that Kebodeaux wasn’t under the authority of the federal government after his release, and that he didn’t have notice of his registration requirement.
This latter point didn’t sit well with Justices Breyer and Alito, both of whom worried that Kebodeaux’s theory of limited government power was masking his real complaint based on individual rights. Justice Breyer pointed out that Kebodeaux’s theory sounded like a Madisonian read of the Commerce Clause – “reading a lack of power because of a civil rights problem.” He went on: “And it’s that part that I’m suddenly worried about the Commerce Clause and every power in Article I being read with exceptions in the civil rights area even though we have the amendments to protect the civil rights problems.” Justice Alito responded later to Ms. Fuentes’s “ex post facto problem” with this: “But I don’t see how that—how that connects with the question whether Congress has the power to do it under—under Article I.”
Ms. Fuentes went back to Congress’s underlying enumerated powers and argued that congressional power to regulate the military was different and narrower than its power over interstate commerce, and that the Necessary and Proper Clause operated differently for each. She said that this meant that SORNA’s application to Kebodeaux – under congressional authority to regulate the military and the Necessary and Proper Clause – was invalid. Chief Justice Roberts and Justice Breyer both took issue with that characterization; as Chief Justice Roberts said, while the government needs an enumerated power to ultimately ground its Necessary and Proper argument, “I don’t see how it makes a difference which enumerated power you’re talking about.”
Justice Scalia helped Ms. Fuentes along by arguing that the government’s theory represents broad authority – to register anywhere, even places where the military has no presence. He said that this kind of requirement seemed particularly unconnected to Congress’s authority to regulate the military. Justice Scalia also argued that the Necessary and Proper Clause can’t authorize the government to make individuals do things, even if it can authorize the government to do things.
If the arguments are any indication, the Court is almost certain to take on the core constitutional issue in the case, and to take it on full force – whether Congress can impose a registration requirement on a sex offender after his release. The Court’s treatment is almost certain to turn on whether a majority can find a workable limit. After the arguments, it looks like we should keep our eyes on Chief Justice Roberts, and Justices Kennedy, Alito, and even Sotomayor. Chief Justice Roberts and Justice Sotomayor joined Justice Breyer’s majority opinion in Comstock, and Justices Kennedy and Alito each concurred separately. If three of these switch to join Justices Scalia and Thomas, the Comstock dissenters, Kebodeaux will go the other way.