SUPREME COURT OF THE UNITED STATES
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No. 12–418
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UNITED STATES, PETITIONER v. ANTHONY JAMES
KEBODEAUX
on writ of certiorari to the united states
court of appeals for the fifth circuit
[June 24, 2013]
Justice Thomas, with
whom Justice Scalia joins as to Parts I, II, and III–B,
dissenting.
Anthony Kebodeaux was
convicted under the Sex Offender Registration and Notification Act
(SORNA), 42 U. S. C. §16901 et seq., for
failing to update his sex of- fender registration when he moved
from one Texas city to another. The Court today holds that Congress
has power under the Necessary and Proper Clause to enact SORNA and
criminalize Kebodeaux’s failure to update his registration. I
disagree. As applied to Kebodeaux, SORNA does not “carr[y]
into Execution” any of the federal powers enu- merated in the
Constitution. Art. I, §8, cl. 18. Rather, it usurps the
general police power vested in the States. Because SORNA’s
registration requirements are unconstitutional as applied to
Kebodeaux, I respectfully dissent.
I
Congress enacted
SORNA in 2006. SORNA requires that every “sex offender shall
register, and keep the registration current, in each jurisdiction
where the offender resides, where the offender is an employee, and
where the offender is a student.” 42 U. S. C.
§16913(a). [
1 ] These
requirements “apply to all sex offenders, including sex
offenders convicted of the offense for which registration is
required prior to the enactment of [SORNA].” 28 CFR
§72.3 (2012). As relevant here, SORNA makes it a federal crime
when someone who is required to register as a sex offender
“knowingly fails to register or update a regis-
tration” and that person “is a sex offender [as defined
by SORNA] by reason of a conviction under Federal law (including
the Uniform Code of Military Justice).” 18 U. S. C.
§§2250(a)(2)(A), (3).
In March 1999, Anthony
Kebodeaux had consensual sex with a 15-year-old girl when he was a
20-year-old Air- man in the U. S. Air Force. He was convicted
by a court-martial of carnal knowledge of a female under the age of
16, in violation of Article 120(b) of the Uniform Code of Military
Justice (UCMJ). He was sentenced to three months’
imprisonment and received a bad-conduct discharge. He completed his
sentence in September 1999 and was no longer in federal custody or
the military when Congress enacted SORNA, which required him to
register as a sex offender. In 2007, Kebodeaux failed to update his
sex-offender registration within three days of moving from El Paso,
Texas, to San Antonio, Texas. He was convicted under
§2250(a)(2)(A) in 2008 and sentenced to a year and a day in
prison. The question before the Court is whether Congress has power
to require Kebodeaux to register as a sex offender and to
criminalize his failure to do so.
II
A
The Constitution
creates a Federal Government with limited powers. Congress has no
powers except those specified in the Constitution. See Marbury v.
Madison, 1 Cranch 137, 176 (1803) (Marshall, C. J.)
(“The powers of the legislature are defined, and limited; and
that those limits may not be mistaken, or forgotten, the
constitution is written”). Thus, “[e]very law enacted
by Congress must be based on one or more of its powers enumerated
in the Constitution.” United States v. Morrison, 529
U. S. 598, 607 (2000) .
A different default
rule applies to the States. As the Tenth Amendment makes clear, the
States enjoy all powers that the Constitution does not withhold
from them. (“The powers not delegated to the United States by
the Constitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people”) While the
powers of Congress are “few and defined,” the powers
that “remain in the State governments are numerous and
indefinite.” The Federalist No. 45, p. 328 (B. Wright ed.
1961) (J. Madison).
The Constitution sets
forth Congress’ limited powers in Article I. That Article
begins by “vest[ing]” in Congress “[a]ll
legislative Powers herein granted,” and then enumerates those
powers in §8. The final clause of §8, the Necessary and
Proper Clause, gives Congress power “[t]o make all Laws which
shall be necessary and proper for carrying into Execution the
foregoing Powers and all other Powers vested by this Constitution
in the Government of the United States, or in any Department or
Officer thereof.” Art. I, §8, cl. 18. Importantly,
the Necessary and Proper Clause is not a freestanding grant of
congressional power, but rather an authorization to makes laws that
are necessary to execute both the powers vested in Congress by the
preceding clauses of §8, and the powers vested in Congress and
the other branches by other provisions of the Constitution. See,
e.g., Kinsella v. United States ex rel. Singleton, 361 U. S.
234, 247 (1960) (“The [Necessary and Proper Clause] is not
itself a grant of power, but a caveat that the Congress possesses
all the means necessary to carry out the specifically granted
‘foregoing’ powers of §8 ‘and all other
Powers vested by this Constitution’ ”).
In McCulloch v.
Maryland, 4 Wheat. 316 (1819), Chief Justice Marshall famously set
forth the Court’s interpretation of the Necessary and Proper
Clause:
“Let the end be legitimate, let it
be within the scope of the constitution, and all means which are
appropriate, which are plainly adapted to that end, which are not
prohibited, but consist[ent] with the letter and spirit of the
constitution, are constitutional.” Id., at 421.
Under this formulation, a federal law is a valid
exercise of Congress’ power under the Clause if it satisfies
a two-part test. “First, the law must be directed toward a
‘legitimate’ end, which McCulloch defines as one
‘within the scope of the [C]onstitution.’ ”
United States v. Comstock, 560 U. S. 126, 160 (2010) (Thomas,
J., dissenting) (quoting 4 Wheat., at 421). In other words, the law
must be directed at “carrying into Execution” one or
more of the powers delegated to the Federal Government by the
Constitution. Art. I, §8, cl. 18. “Second, there
must be a necessary and proper fit between the ‘means’
(the federal law) and the ‘end’ (the enumerated power
or powers) it is designed to serve.” Comstock, 560
U. S., at 160 (Thomas, J., dissenting). “The means
Congress selects will be deemed ‘necessary’ if they are
‘appropriate’ and ‘plainly adapted’ to the
exercise of an enumerated power, and ‘proper’ if they
are not otherwise ‘prohibited’ by the Constitution and
not ‘[in]consistent’ with its ‘letter and
spirit.’ ” Id., at 160–161 (quoting
Art. I, §8, cl. 18 and McCulloch, 4 Wheat., at 421).
Both parts of this test
are critical. “[N]o matter how ‘necessary’ or
‘proper’ an Act of Congress may be to its objective,
Congress lacks authority to legislate if the objective is anything
other than ‘carrying into Execution’ one or more of the
Federal Government’s enumerated powers.” Comstock,
supra, at 161 (Thomas, J., dissenting). As applied to Kebodeaux,
SORNA fails this test.
B
It is undisputed that
no enumerated power in Article I, §8, gives Congress the power
to punish sex offenders who fail to register, nor does any other
provision in the Constitution vest Congress or the other branches
of the Federal Government with such a power. Thus, SORNA is a valid
exercise of congressional authority only if it is “necessary
and proper for carrying into Execution” one or more of those
federal powers enumerated in the Constitution.
In the course of this
litigation, the Government has argued that Kebodeaux’s
conviction under §2250(a)(2)(A) executes Congress’
enumerated powers to spend for the gen- eral welfare, Art. I,
§8, cl. 1; to regulate interstate commerce, §8,
cl. 3; and to regulate the armed forces, §8, cl. 14. But
none of these powers justifies applying §2250(a)(2)(A) to
Kebodeaux. The Spending Clause ar- gument is a nonstarter. Section
2250(a)(2)(A) does not execute Congress’ spending power
because it regulates individuals who have not necessarily received
federal funds of any kind. The Government contends that
“federal fund- ing and logistical support offered to States
for their sex-offender-registration-and-notification programs can
be effective only if persons required to register actually do
so” and that “Congress may impose penalties on such
individuals as a means of achieving that goal.” Brief for
United States 52. But we have never held that Congress gains the
power to regulate private individuals merely because it provides
money to the States in which they reside.
Nor does the Commerce
Clause—the enumerated power that the Court has construed most
broadly—support §2250(a)(2)(A). Under this Court’s
precedents, Congress may use its Commerce Clause power to regulate
(1) “ ‘the use of the channels of interstate
commerce,’ ” (2) “ ‘the
instrumentalities of interstate commerce, or persons or things in
interstate commerce,’ ” and (3) economic
activities that “ ‘substantially affect interstate
commerce.’ ” United States v. Lopez, 514
U. S. 549 –559 (1995); see also Morrison, 529
U. S., at 617. Section 2250(a)(2)(A) does not fall within the
first two categories because it is not limited to regulating sex
offenders who have traveled in interstate commerce. Instead, it
applies to all federal sex offenders who fail to register, even if
they never cross state lines. Nor does §2250(a)(2)(A) fall
within the third category. Congress may not regulate noneconomic
activity, such as sex crimes, based on the effect it might have on
interstate commerce. Cf. Morrison, supra, at 617. (“We
. . . reject the argument that Congress may regulate
noneconomic, violent criminal conduct based solely on that
conduct’s aggregate effect on interstate commerce”). In
short, §2250(a)(2)(A) regulates activity that is neither
“ ‘interstate’ ” nor
“ ‘commercial,’ ” 687 F. 3d
232, 253 (CA5 2012), and, thus, it cannot be justified on the
ground that it executes Congress’ power to regulate
interstate commerce.
Finally,
Congress’ power “[t]o make Rules for the Government and
Regulation of the land and naval Forces” does not support
Kebodeaux’s conviction under §2250(a) (2)(A).
Art. I, §8, cl. 14. Kebodeaux had long since fully served
his criminal sentence for violating Article 120(b) of the UCMJ and
was no longer in the military when Congress enacted SORNA. Congress
does not retain a general police power over every person who has
ever served in the military. See United States ex rel. Toth v.
Quarles, 350 U. S. 11, 14 (1955) (“It has never been
intimated by this Court . . . that Article I military
jurisdiction could be extended to civilian ex-soldiers who had
severed all relationship with the military and its
institutions. . . . [G]iven its natural meaning, the
power granted Congress ‘To make Rules’ to regulate
‘the land and naval Forces’ would seem to restrict
court-martial jurisdiction to persons who are actually members or
part of the armed forces”). Accordingly, Kebodeaux’s
conviction under §2250(a)(2)(A) cannot be sustained based on
Congress’ power over the military.
Moreover, it is clear
from the face of SORNA and from the Government’s arguments
that it is not directed at “carrying into Execution”
any of the federal powers enumerated in the Constitution,
Art. I, §8, cl. 18, but is instead aimed at protecting
society from sex offenders and violent child predators. See 42
U. S. C. §16901 (“In order to protect the
public from sex offenders and offenders against children, and in
response to the vicious attacks by violent predators against the
victims listed below, Congress in this chapter establishes a
comprehensive national system for the registration of those
offenders”); Tr. of Oral Arg. 3 (“Convicted sex
offenders pose a serious threat to public safety. When those
convictions are entered under Federal law, Congress has the
authority to impose both a criminal and a civil sanction for that
conduct in order to protect the public”); Brief for United
States 3 (same).
Protecting society from
sex offenders and violent child predators is an important and
laudable endeavor. See Kennedy v. Louisiana, 554 U. S. 407,
467 (2008) (Alito, J., dissenting) (explaining that, for most
Americans, sexual abuse of children is the “epitome of moral
depravity”). But “the Constitution does not vest in
Congress the authority to protect society from every bad act that
might befall it.” Comstock, 560 U. S., at 165 (Thomas,
J., dissenting). The power to protect society from sex offenders is
part of the general police power that the Framers reserved to the
States or the people. See Amdt. 10; Morrison, supra, at 617
(“[W]e can think of no better example of the police power,
which the [Framers] denied the National Government and reposed in
the States, than the suppression of violent crime and vindication
of its victims”); Lopez, supra, at 561, n. 3.
(“ ‘[T]he ‘States possess primary authority
for defining and enforcing the criminal law’ ”
(quoting Brecht v. Abrahamson, 507 U. S. 619, 635 (1993) )). [
2 ]
The Government has
failed to identify any enumerated power that §2250(a)(2)(A)
“carr[ies] into Execution” in this case. Accordingly, I
would hold that §2250(a)(2)(A) and the registration
requirements that it enforces are unconstitutional as applied to
Kebodeaux.
III
In concluding
otherwise, the Court entirely skips McCulloch’s first
step—determining whether the end served by SORNA is
“within the scope of the [C]onstitu- tion.” 4 Wheat.,
at 421. The Court appears to believe that Congress’ power
“to ‘make Rules for the . . . Regulation of
the land and naval Forces’ ” justifies imposing
SORNA’s registration requirements on Kebodeaux. Ante, at 6.
But not one line of the opinion explains how SORNA is directed at
regulating the armed forces. Instead, the Court explains how SORNA
and the Wetterling Act serve various ends that are not enumerated
in the Constitution. Cf. ante, at 12 (explaining that SORNA was
designed to “keep track of more offenders” and
“encourage States . . . to adopt its uniform
standards”); ante, at 8 (explaining that the Wetterling Act
was designed to “protect the public from . . .
federal sex offenders and alleviate public safety concerns”).
The Court’s failure to link SORNA to any enumerated power
results in analysis that is untethered from the Constitution and
disregards the admonition that “[t]he powers of the
legislature are defined, and limited.” Marbury, 1 Cranch, at
176.
A
The Court’s
analysis is flawed at every step. It begins by explaining that
“at the time of his offense Kebodeaux was subject to the
federal Wetterling Act, an Act that imposed upon him registration
requirements very similar to those that SORNA later
mandated.” [
3 ] Ante, at
4. But that is beside the point. Kebodeaux was convicted of
violating SORNA’s registration requirements, not the
Wetterling Act’s, and so the relevant question is what
enumerated power SORNA “carr[ies] into Execution.”
“The Necessary and Proper Clause does not provide Congress
with authority to enact any law simply because it furthers other
laws Congress has enacted in the exercise of its incidental
authority; the Clause plainly requires a showing that every federal
statute ‘carr[ies] into Execution’ one or more of the
Federal Government’s enumerated powers.” Comstock, 560
U. S., at 168 (Thomas, J., dissenting).
Nevertheless,
apparently in an effort to bootstrap the Wetterling Act, the Court
proceeds to determine whether the Wetterling Act (not SORNA) falls
within Congress’ power under the Necessary and Proper Clause.
The Court first notes that the Clause “ ‘leave[s]
to Congress a large discretion as to the means that may be employed
in executing a given power,’ ” ante, at 7 (quoting
Lottery Case, 188 U. S. 321, 355 (1903) )—a fact that is
entirely irrelevant under McCulloch’s first step of
determining whether the end is itself legitimate. The Court then
observes that the Necessary and Proper Clause
“authorizes Congress, in the
implementation of other explicit powers, to create federal crimes,
to confine offenders to prison, to hire guards and other prison
personnel, to provide prisoners with medical care and educational
training, to ensure the safety of those who may come into contact
with prisoners, to ensure the public’s safety through systems
of parole and supervised release, and, where a federal
prisoner’s mental condition so requires, to confine that
prisoner civilly after the expiration of his or her term of
imprisonment.” Ante, at 7.
From these powers, the Court reasons that the
Wetterling Act is valid because “Congress could reasonably
conclude that registration requirements applied to federal sex
offenders after their release can help protect the public from
those federal sex offenders and alleviate public safety
concerns.” Ante, at 8. As I explained in Comstock, how- ever,
this mode of analysis confuses the inquiry. 560 U. S. at
168–169 (Thomas, J., dissenting). “Federal laws that
criminalize conduct . . . , establish prisons for those
who engage in that conduct, and set rules for the care and
treatment of prisoners awaiting trial or serving a criminal
sentence” are only valid if they
“ ‘Execut[e]’ ” an enumer- ated
power. Id., at 169. Here, for example, Congress has authority to
enact Article 120(b) of the UCMJ, to enforce that provision against
military personnel who violate it, and to confine them in a
military prison while they are awaiting trial and serving a
sentence. All of those actions “carr[y] into Execution”
Congress’ power to promote order and discipline within the
military by regulating the conduct of military personnel.
Art. I, §8, cl. 14.
But the enumerated
power that justified Kebodeaux’s conviction does not justify
requiring him to register as a sex offender now that he is a
civilian. If Kebodeaux were required to register as part of his
criminal sentence, then registration would help execute the power
that justifies his conviction. The court-martial here, however, did
not impose registration requirements at Kebodeaux’s
sentencing. See ante, at 8 (acknowledging that registration is a
“civil requirement” and was “not a specific
condition of Kebodeaux’s release”). Enacted long after
Kebodeaux had completed his sentence, SORNA cannot be justified as
a punishment for the offense Kebodeaux committed while in the
military because retroactively increasing his punishment would
violate the Ex Post Facto Clause. See Peugh v. United States, 569
U. S. ___, ___ (2013) (slip op., at 8) (explaining that laws
that “ ‘inflic[t] a greater punishment
. . . than the law annexed to the crime . . .
when committed’ ” violate the Ex Post Facto
Clause) (quoting Calder v. Bull, 3 Dall. 386, 390 (1798)); Peugh,
supra, at ___ (Thomas, J., dissenting) (slip op., at 11)
(explaining that “laws retroactively increasing the
punishment were . . . understood to be ex post facto at
the time of the found- ing”). As the Court below correctly
recognized, “because SORNA’s registration requirements
are civil and were enacted after Kebodeaux committed his crime, the
[G]overnment cannot justify their constitutionality on the ground
that they merely punish Kebodeaux for the crime he committed while
in the military.” 687 F. 3d, at 239. The only
justification for SORNA that the Government has advanced is
protection of the public, but that justification has nothing to do
with Congress’ power to regulate the armed forces. [
4 ]
Finally, the Court
asserts that the Wetterling Act is reasonable because it
“took state interests into account by, for the most part,
requiring released federal offenders to register in accordance with
state law,” and its requirements are “reasonably narrow
and precise.” Ante, at 10. But the degree to which the
Wetterling Act or SORNA accommodates State interests and intrudes
on the lives of individuals subject to registration is irrelevant
because the Supremacy Clause makes federal law supreme. See
Art. VI, cl. 2. “As long as it is acting within the
powers granted it under the Constitution, Congress may impose its
will on the States.” Gregory v. Ashcroft, 501 U. S. 452,
460 (1991) . The fact that the Wetterling Act and SORNA may be
“narrow” and “[take] state interests into
account,” ante, at 10, is “not a matter of
constitutional necessity, but an act of legislative grace.”
Comstock, 560 U. S., at 178 (Thomas, J., dissenting). These
factors have no place in deciding whether a law
“Execut[es]” an enumerated power.
B
The Court not only
ignores the limitations on Congress’ power set forth in the
Constitution, but it also ignores the limits that it marked just
three years ago in Comstock. In that case, this Court held that
Congress has power under the Necessary and Proper Clause to enact
18 U. S. C. §4248, which authorizes the Federal
Government to civilly commit “sexually dangerous
persons” beyond the date it lawfully could hold them on a
charge or conviction for a federal crime. Comstock, 560 U. S.,
at 142. The Court rebuffed the assertion that it was conferring a
general police power on Congress by asserting that §4248 was
“limited to individuals already ‘in the custody of
the’ Federal Government.” Id., at 148. The Solicitor
General even conceded at oral argument that “the Federal
Government would not have . . . the power to commit a
person who . . . has been released from prison and whose
period of supervised release is also completed” because
“at that point the State police power over a person has been
fully reestablished.” Tr. of Oral Arg. in United States v.
Comstock O. T. 2009, No. 08–1224, p. 9. The Court and
the Government today abandon even that meager restriction, which
itself lies far beyond the constitutional limits. Kebodeaux was no
longer in federal custody when Congress enacted SORNA, yet the
Court disregards the fact that, even under Comstock, release from
prison and supervised release terminates any hold the Federal
Government might otherwise have and “fully
reestablishe[d]” the State’s police power over that
individual.
* * *
The Framers believed
that the division of powers between the Federal Government and the
States would protect individual liberty. See New York v. United
States, 505 U. S. 144, 181 (1992) (“[T]he Constitution
divides authority between federal and state governments for the
protection of individuals. State sovereignty is not just an end in
itself: ‘Rather, federalism secures to citizens the liberties
that derive from the diffusion of sovereign
power’ ” (quoting Coleman v. Thompson, 501
U. S. 722, 759 (1991) (Blackmun, J., dissenting)). The
decision today upsets that careful balance. I respectfully
dissent.