United States v. Kebodeaux,
570 U.S. ___ (2013)

Annotate this Case



No. 12–418



on writ of certiorari to the united states court of appeals for the fifth circuit

[June 24, 2013]

     Chief Justice Roberts, concurring in the judgment.

     I agree with the Court that Congress had the power, under the Military Regulation and Necessary and Proper Clauses of Article I, to require Anthony Kebodeaux to register as a sex offender. The majority, having established that premise and thus resolved the case before us, nevertheless goes on to discuss the general public safety benefits of the registration requirement. Ante, at 8–10. Because that analysis is beside the point in this case, I con- cur in the judgment only.

     While serving in the Air Force, Kebodeaux violated the Uniform Code of Military Justice by having sexual relations with a minor. A special court-martial convicted him. As relevant here, that conviction had two consequences: First, Kebodeaux was sentenced to confinement for three months. And second, as the majority describes, he was required to register as a sex offender with the State in which he resided and keep that registration current; failure to do so would subject him to federal criminal penalties. Ante, at 4–6.

     In the same way that Congress undoubtedly had the au- thority to impose the first consequence for a violation of military rules, it also had the authority to impose the second. The Constitution gives Congress the power “[t]o make Rules for the Government and Regulation of the land and naval Forces.” Art. I, §8, cl. 14. And, under the Necessary and Proper Clause, Congress can give those rules force by imposing consequences on members of the military who disobey them. See McCulloch v. Maryland, 4 Wheat. 316, 416 (1819) (“All admit that the government may, legitimately, punish any violation of its laws; and yet, this is not among the enumerated powers of Congress.”). A servicemember will be less likely to violate a relevant military regulation if he knows that, having done so, he will be required to register as a sex offender years into the future.

     It is this power, the power to regulate the conduct of members of the military by imposing consequences for their violations of military law, that supports application of the federal registration obligation to Kebodeaux. As the Court explains, the Wetterling Act was in force when Kebodeaux committed the original offense, and applied to him as soon as the special court-martial rendered its verdict. See ante, at 5–6. Congress later, in enacting the Sex Offender Registration and Notification Act (SORNA), modified the registration regime in place under the Wetterling Act. But as applied to Kebodeaux here (the relevant inquiry in this as-applied challenge), those changes were insignificant; their only effect was that Kebodeaux received a day more than he could have received for the same conduct had the Wetterling Act remained in force. See ante, at 11 (describing SORNA’s effect on Kebodeaux’s registration obligations); compare post, at 10, n. 3 (Thomas, J., dissenting) (discussing changes that did not affect Kebodeaux). Whatever other constitutional concerns might attach to such a change, as a question of Article I power it was permissible. Just as the Federal Government may, under the Necessary and Proper Clause, alter the conditions of a federal prisoner’s confinement or adjust the timing and location of drug tests required of a federal convict, so too could it make slight modifications to a previously imposed registration obligation.

     The majority says, more or less, the same thing. Ante, at 8, 11–12. But sandwiched between its discussion of the basis for Congress’s power and its discussion of the inconsequential nature of the changes is a discussion of benefits from the registration system. Along with giving force to military regulations, the majority notes, Congress could also have “reasonably conclude[d] that registration requirements . . . help protect the public from . . . federal sex offenders and alleviate public safety concerns.” Ante, at 8.

     Maybe so, but those consequences of the registration requirement are irrelevant for our purposes. Public safety benefits are neither necessary nor sufficient to a proper exercise of the power to regulate the military. What matters—all that matters—is that Congress could have rationally determined that “mak[ing] the civil registration requirement at issue here a consequence of Kebodeaux’s offense” would give force to the Uniform Code of Military Justice adopted pursuant to Congress’s power to regulate the Armed Forces. Ibid.

     Ordinarily such surplusage might not warrant a separate writing. Here, however, I worry that incautious readers will think they have found in the majority opinion something they would not find in either the Constitution or any prior decision of ours: a federal police power. The danger of such confusion is heightened by the fact the Solicitor General adopted something very close to the police power argument, contending that “the federal government has greater ties to former federal sex offenders than it does to other members of the general public,” and can therefore impose restrictions on them even years after their unconditional release simply to “serve[ ] . . . public-protection purposes.” Brief for United States 34–35.

     I write separately to stress not only that a federal police power is immaterial to the result in this case, but also that such a power could not be material to the result in this case—because it does not exist. See United States v. Morrison, 529 U. S. 598 –619 (2000) (“ ‘[W]e always have rejected readings of . . . the scope of federal power that would permit Congress to exercise a police power’ ” (quoting United States v. Lopez, 514 U. S. 549 –585 (1995) (Thomas, J., concurring))).

     Our resistance to congressional assertions of such a power has deep roots. From the first, we have recognized that “the powers of the government are limited, and that its limits are not to be transcended.” McCulloch, 4 Wheat., at 420–421. Thus, while the Necessary and Proper Clause authorizes congressional action “incidental to [an enumerated] power, and conducive to its beneficial exercise,” Chief Justice Marshall was emphatic that no “great substantive and independent power” can be “implied as incidental to other powers, or used as a means of executing them.” Id., at 418, 411; see also Gibbons v. Ogden, 9 Wheat. 1, 195 (1824) (“The enumeration presupposes something not enumerated”).

     It is difficult to imagine a clearer example of such a “great substantive and independent power” than the power to “help protect the public . . . and alleviate pub- lic safety concerns,” ante, at 8. I find it implausible to suppose—and impossible to support—that the Framers in- tended to confer such authority by implication rather than expression. A power of that magnitude vested in the Federal Government is not “consist[ent] with the letter and spirit of the constitution,” McCulloch, supra, at 421, and thus not a “proper [means] for carrying into Execution” the enumerated powers of the Federal Government, U. S. Const., Art. I, §8, cl. 18. See United States v. Comstock, 560 U. S. 126, 153 (2010) (Kennedy, J., concurring in judgment) (“It is of fundamental importance to consider whether essential attributes of state sovereignty are compromised by the assertion of federal power under the Necessary and Proper Clause”).

     It makes no difference that the Federal Government would be policing people previously convicted of a federal crime—even a federal sex crime. The fact of a prior fed- eral conviction, by itself, does not give Congress a freestand- ing, independent, and perpetual interest in protecting the public from the convict’s purely intrastate conduct.

     But as I have said, I do not understand the majority’s opinion to be based on such a power. The connection to the Military Regulation Clause on which the majority relies, ante, at 8, is less attenuated, and the power it produces less substantial, than would be true of a federal police power over prior federal offenders; the power to threaten and impose particular obligations as a result of a violation of military law is not such a “great substantive and independent power” that the Framers’ failure to enumerate it must imply its absence.

     Nevertheless, I fear that the majority’s discussion of the public-safety benefits of the registration requirement will be mistaken for an endorsement of the Solicitor General’s public-safety basis for the law. I accordingly concur in the judgment only.

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