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10th Circuit Reiterates: SORNA Is Constitutional

By Mark Wilson, Esq. | Last updated on

James White pleaded guilty to violating the Sex Offender Registration and Notification Act (SORNA) after he failed to update his sex offender registration when he moved from Oklahoma to Texas. (He actually moved to Texas, then "drove back to Oklahoma every ninety days to maintain the illusion that he continued to reside there.")

On appeal, he claimed SORNA violated the Commerce Clause, the Tenth Amendment, and the Ex Post Facto Clause. He also brought two sentencing issues. So, is SORNA grossly unconstitutional?

What Obamacare Has to Do With Sex Offenders

Of course not, but that didn't stop White from trying. In the first place, the Tenth Circuit already rejected a Commerce Clause attack on SORNA in 2008; however -- and you're going to love this one -- White claimed that NFIB v. Sebelius (yes, the Affordable Care Act decision from 2012) called the Tenth Circuit's previous cause into question.

You'll recall that, in NFIB, a majority of the Court held that Congress couldn't regulate a failure to engage in interstate commerce. White claimed that SORNA similarly "regulates inactivity by compelling state sex offenders to act."

The Tenth Circuit was not impressed. For one thing, NFIB called into question a different part of the "Lopez triad"; that is, activities that have a substantial effect on interstate commerce. The previous Tenth Circuit case dealt with the first two prongs: channels of interstate commerce and people in interstate commerce. White is clearly a person in interstate commerce, though he attempted to claim that "his status as a sex offender is a purely intrastate matter." That would be true -- until he crossed state borders.

No Commandeering Here

White also challenged SORNA on Ex Post Facto grounds. Two weeks after his conviction, the Attorney General issued a rule extending SORNA to "all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act."

The Tenth actually didn't address this argument on the merits, deferring instead to a previous holding that SORNA didn't violate the Ex Post Facto Clause. In the Tenth Circuit, a panel can't override the decision of a previous panel "absent en banc consideration or an intervening Supreme Court decision." So no win there, either (N.B. the Fifth Circuit decided the other way in 2012, then got reversed by the Supreme Court a year later).

The Tenth Amendment? That's right. White claimed SORNA was an unconstitutional "commandeering" of state power, characterizing SORNA as a statute commanding the state to implement the federal sex offender registration program. The fact supporting his claim is that Oklahoma hasn't itself implemented SORNA or accepted related crime control funding, from which White concludes Oklahoma officials must be enforcing the federal statute under unlawful pressure from the federal government.

The court, however, wasn't willing to come to that conclusion, as White couldn't prove this claim other than by thin inference.

On the sentencing issues, the court actually agreed with White that he should have been classified as a tier I, not a tier III, sex offender due to the specifics acts White committed and how those acts would be punished under North Carolina law. In vacating White's sentence, the court also vacated the conditions of his supervised release and suggested the district court should look at them again on remand.

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