The US Supreme Court [official website] ruled [opinion, PDF] 7-2 Monday in United States v. Kebodeaux [SCOTUSblog backgrounder] that the federal government can compel a convicted sex offender to register with the Sex Offender Registration and Notification Act of 2006 (SORNA) [text; JURIST news archive] even if the offender completed his sentence before SORNA was enacted. In an opinion by Justice Breyer, the court found that this was within Congress' power under the Necessary and Proper Clause [Cornell LII backgrounder], reversing the decision [text] of the US Court of Appeals for the Fifth Circuit:
SORNA's general changes were designed to make more uniform what had remained "a patchwork of federal and 50 individual state registration systems," ... with "loopholes and deficiencies" that had resulted in an estimated 100,000 sex offenders becoming "missing" or "lost." ... SORNA's more specific changes reflect Congress' determination that the statute, changed in respect to frequency, penalties, and other details, will keep track of more offenders and will encourage States themselves to adopt its uniform standards. No one here claims that these changes are unreasonable or that Congress could not reasonably have found them "necessary and proper" means for furthering its preexisting registration ends.Chief Justice John Roberts filed a concurring opinion, saying that the majority's discussion of the general public safety benefits of the registration requirement is "beside the point in this case." Justice Samuel Alito also filed a concurring opinion. Justices Antonin Scalia and Clarence Thomas filed dissenting opinions.
We conclude that the SORNA changes as applied to Kebodeaux fall within the scope Congress' authority under the Military Regulation and Necessary and Proper Clauses.
The Supreme Court heard oral arguments [JURIST report] in the case in April. The deputy Solicitor General argued that "Nothing in Article I prevents Congress from legislating retroactively with respect to civil remedies for past violations of Federal law. The Ex Post Facto Clause, the Due Process Clause, and Article I analysis under the Necessary and Proper Clause all provide some degree of protection against retroactive provisions, but no per se rule bars Congress from applying sex offender registration requirements, which this Court has held to be civil remedies not barred by the Ex Post Facto Clause to past Federal criminal convictions." An attorney on behalf of Anthony James Kebodeaux argued that the situation should be analyzed under the five factors in United States v. Comstock [JURIST report]. She also argued that under "necessary and proper" analysis, the government's requirement of registration here is beyond the scope of that power. "I don't see any problem with them giving notice. That does not impose a Federal obligation on an individual. So there is no power being exerted on the individual."