Hard cases make bad law.

-Anonymous

 The Eleventh Circuit Court of appeals handed down a decision yesterday which ought to scare you. It won't, but it ought to. 

 In fact, you'll probably agree with the result.  It's hard not to.  That's why hard cases make bad law. 

 The "Sex Offender Registration and Notification Act" (SORNA) is a federal law which makes it a federal crime for sex offenders to fail to re-register as sex offenders when moving across state lines. The Eleventh Circuit court ruled that this law is a constitutional exercise of Congress' commerce clause powers. 

  I'm going to have to take a moderate digression here. Unlike, say, the First Amendment, or the Equal Protection Clause, most people aren't familiar with the commerce clause. So I'll explain it as quickly as possible, and I'll try to do it without too much editorializing. I can't really make any promises as to length or objectiveness, though, because that would require either planning or editing - neither of which I do for free.

  The federal government is one of limited powers. All powers not explicitly  delegated to the federal government by the constitution are reserved to the states, or to the people. "Police powers" is the traditional shorthand for the powers which ought to be exercised solely by the states. Police powers include health and welfare, education, safety, crime and punishment, marriage, property and inheritance, et cetera.

 The federal government's powers are few, and specific.For example, the federal government is charged with making laws encouraging arts and sciences. That's where we get our patent and copyright law. The federal government is charged with foreign relations, including treaties, and war. The federal government has the sole power to regulate interstate commerce. That's the commerce clause.

A lot of federal laws which initially appear to bear no relationship to commerce, were actually passed as exercises of the commerce clause. 

 Two fairly extreme examples both involve agriculture, of a sort.

Many, many years ago, back even before trucker hats were worn in earnest, and when dungarees were work pants - a man grew some wheat to feed to his cows. He was assessed a fine, of sorts, by the federal government, which had passed a law regulating the harvest of wheat.

He protested, and argued that because it was his own wheat, which he fed to his own cows, a transaction which remained, not only in one state, but on one farm - that it had nothing to do with interestate commerce. The Supreme Court disagreed.

Aha, they said. Even though you aren't selling your wheat, you are not buying wheat, either. And the wheat that you would have bought, that would have crossed state lines to get to you! That's interstate commerce! 

(Wickard v. Filburn)

Fairly recently, when trucker hats were no longer in style ironically, and skinny jeans were not yet in, a man grew some marijuana in his yard, for medical use only. The federal government, of course, charged him with a federal crime. The man argued that he was in California, and California allowed him to grow this marijuana, and he was not selling it, and was not allowed to sell it, and therefore, it was not interstate commerce. The Supreme Court disagreed.

Aha! they said. Even though you aren't selling your ganj', other people would want to buy it. There is a market for it. And they might live anywhere! In other states, even!  That's interestate. Therefore, interstate commerce!

(Gonzalez v. Raich/Aschroft v. Raich)

But the commerce clause is not necessarily stretched frivolously, at all times. In the civil rights era, the federal government used the commerce clause to remedy some severe injustices that the states were reluctant to deal with themselves. Federal laws prohibiting racial discrimination in hotels and restaurants were upheld, as valid exercises of the commerce clause.*

In those cases, the Court's reasoning was no less strained. The federal government may prohibit discriminationin hotels, because segregated hotels restrict the ability of African-Americans to travel, and therefore, to participate in interstate commerce. The federal government may prohibit discrimination in restaurants, because the food served has travelled over state lines (!).** (Heart of Atlanta v. United States, Katzenbach v. McLung).

In recent years, the Court has started to reign Congress in, a bit. A statute providing a federal cause of action (a right to sue) for victims of gender-motivated violence, was struck down, on grounds that it had nothing to do with interstate commerce. (U.S. v. Morrison). A law providing federal penalties for possession of firearms in a school zone faced a similar fate. (U.S. v. Lopez).

So, that's the commerce clause. Congratulations, you just learned at least two weeks worth of constitutional law. Feel free to send me $3,000. 

Back to the recent case. 

The Eleventh Circuit Court of Appeals held that SORNA is a valid law, regulating interestate commerce. Here's the Eleventh Circuit's reasoning on this, fresh off the presses - 

 [SORNA] makes it a federal crime to fail to register as required, [...] only where the offender “travels in interstate or foreign commerce,” or was convicted of a federal sex offense. Thus, even if we were to assume that the harms and targeted illegal conduct were purely local in nature, the use of the channels and instrumentalities of interstate commerce is necessarily part of the commission of the targeted offense.

"Plainly [SORNA] focuses on sex offenders, like the defendant, who travel in interstate commerce. In this focus, SORNA is analogous to a statute prohibiting church-based arson “in or affecting interstate or foreign commerce” upheld by this Court in Ballinger, and to the Mann Act prohibiting the transport of women “in interstate commerce” for an immoral purpose, upheld by the Supreme Court long ago in Caminetti v. United States.

SORNA does no more than employ Congress' lawful commerce power to prohibit the use of channels or instrumentalities of commerce for harmful purposes. Moreover, as we made it clear in Ballinger, “[i]nstrumentalities of interstate commerce ... are the people and things themselves moving in commerce.”

Thus, when a sex offender travels from one state to another, he is an instrumentality of interstate commerce, and by regulating these persons in SORNA, Congress has acted under its commerce clause power to regulate an instrumentality."

(Emphasis mine, citations omitted, formatting changed slightly).

Minor digression before I get straight into it:

This is why the law is so seductive. Imagine writing that. Imagine being a judge (or more likely, his clerk), gathering all the little relevent bits of cases, pulling and weaving and thinking and puzzling, until that's what you get. Such fun. God, I wish I could be a clerk. 

Now that I've finished swooning over legal reasoning, let me get on with dissecting it. This is the reasoning:

1. SORNA is, by its own words, limited to sex offenders traveling in interstate commerce.

2. Congress' power under the commerce clause extends to anything using the channels or instrumentalities of interstate commerce.

3. SORNA is, therefore, a valid exercise of the commerce clause, as applied to sex offenders traveling in interstate commerce.

 4. Any "people and things" traveling "in interstate commerce" are themselves, instrumentalities of interstate commerce.

5. Therefore, sex offenders crossing state lines, at any time, are traveling in interstate commerce.

 6. Therefore, SORNA is a valid exercise of the commerce clause, as applied to all sex offenders crossing state lines.

 That might not scare you, yet.

Now, look back over my break-down of their reasoning, and back to the excerpt of the opinion itself.

Do you see any language which would limit to sex offenders, the principle that a person is an instrumentality of interstate commerce, to sex offenders? Or, even, to criminals?

I don't. It seems like, with this decision, that the federal government may now regulate the movement, between states, of people.*** This is bad news.  

 The Eleventh Circuit's decision just gave the federal government free reign to make laws, under the commerce clause, relating to people moving between states.  

Although we have another administration now, I cannot believe that the government will always be benign.

It is my belief that the Constitution's greatest strength is in its limits. As a people, we're actually restrained from giving too much of our power away. The states and the federal government are confined to their own respective spheres. Each branch of the federal government's powers are not only different; they're non-delegable.

 This is all for good reason. Our impulses, as human beings, will always be at least partially emotional. We want vengeance. We want retribution. We want to protect ourselves. We want to punish the guilty. We want order. We want justice to be swift. We want life to be predictable, and fair. 

 At times, it will appear that the easiest way to get one or the other of these things is to chip off just a little bit of liberty, like nibbling at the ears of a big chocolate Easter Bunny.  It may even seem like we're not chipping at our own liberty - just someone else's. 

 But there is no such thing as someone else's liberty. 

  SORNA had a noble motivation. It was born from a father's love for his son, and his hope that no parent should ever have to go through what he went through.  The law was written and passed with the best intentions. It was, in a way, a statement of our collective values. It said that, as a nation, we value our children's lives and safety above all else. 

 And there's the problem.

 As people, individual people, and families, and communities, we can value the lives of children above all else.  But as a nation, we can't. As a nation, we cannot afford to point to anything, anything at all, and say "This above liberty."  It's serious fucking folly. When you place something above the rights and freedoms that our nation chose to embody in the constitution, you place all of them at risk.

 Don't believe me?

Patriot Act. 

* You may wonder why the government didn't use the 14th amendment to do this - it's because the 14th amendment requires some state action. If the state is completely uninvolved in an activity, the 14th amendment can't really be used to prevent discrimination in it.

**I'm glad, by the way, those cases turned out the way they did. I suppose commerce clause jurisprudence is a good way to conduct a libertarian/progressive acid test that way.  

***The constitution explicitly prohibits laws which restrict the right to travel. The 11th Cir. did consider whether SORNA represented an unconstitutional restraint on the right to travel - and held that, as the prevention of sex crimes was a "weighty concern," the restraint on travel was justified. If anyone likes, I'll do an analysis of what a weighty concern is, in another post, and whether that's something to be scared of, or comforted by.