SORNA: An Abridged Legal Analysis of 18 U.S.C. § 2250 (Failure to Register as a Sex Offender)

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SORNA: An Abridged Legal Analysis of

18 U.S.C. § 2250 (Failure to Register

as a Sex Offender)

Updated November 5, 2021

Congressional Research Service

https://crsreports.congress.gov

R42691

SUMMARY

SORNA: An Abridged Legal Analysis of

18 U.S.C. § 2250 (Failure to Register

as a Sex Offender)

R42691

November 5, 2021

Charles Doyle

Senior Specialist in

American Public Law

Section 2250(a) of Title 18 of the United States Code outlaws an individual’s failure to

comply with federal Sex Offender Registration and Notification Act (SORNA)

requirements. SORNA demands that an individual—previously convicted of a

qualifying federal, state, or foreign sex offense—register with state, territorial, or tribal authorities. Individuals

must register in every jurisdiction in which they reside, work, or attend school. They must also update the

information whenever they move, or change their employment or educational status. For some offenders, the

obligation to register and to periodically refresh their registration information may be subject to a term limit

whose duration is based on the severity of the sex offense that triggered the obligation to register.

Section 2250 applies only under one of several jurisdictional circumstances: the individual was previously

convicted of a qualifying federal sex offense; the individual travels in interstate or foreign commerce; or the

individual enters, leaves, or resides in Indian Country. The Supreme Court in Nichols v. United States held that

SORNA, as originally written, had limited application to sex offenders in the United States who relocated abroad.

The International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced

Notification of Traveling Sex Offenders [Act], P.L. 114-119, however, anticipated and addressed the limitation

identified in Nichols by adding a new offense, Section 2250(b), that replicates the attributes of the earlier

prohibition.

Individuals charged with a violation of Section 2250 may be subject to preventive detention or to a series of pretrial release conditions. If convicted, they face imprisonment for not more than 10 years and/or a fine of not more

than $250,000, as well as the prospect of a post-imprisonment term of supervised release of not less than 5 years.

An offender guilty of a Section 2250 offense, who also commits a federal crime of violence, is subject to an

additional penalty of imprisonment for up to 30 years and not less than 5 years for the violent crime.

The Attorney General exercised statutory authority to make SORNA applicable to qualifying convictions

occurring prior to its enactment. The Supreme Court in United States v. Kebodeaux, 570 U.S. 387 (2013), rejected

the suggestion that Congress lacks the constitutional authority to make Section 2250 applicable, because of a prior

federal offense and intrastate noncompliance, to individuals who had served their sentence and been released from

federal supervision prior to SORNA’s enactment. The Supreme Court in Gundy v. United States, 139 S. Ct. 2116

(2019), also rejected the argument that SORNA’s grant of authority to the Attorney General constituted an

unguided delegation of legislative authority.

The lower federal appellate courts have rejected other challenges to Section 2250’s constitutional validity. Those

challenges have included arguments under the Constitution’s Ex Post Facto, Due Process, Cruel and Unusual

Punishment, Commerce, Necessary and Proper, and Spending Clauses.

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Contents

Introduction ..................................................................................................................................... 1

Elements .......................................................................................................................................... 1

Expired Obligation .......................................................................................................................... 3

Constitutional Considerations ......................................................................................................... 6

Contacts

Author Information........................................................................................................................ 10

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Introduction

Federal law punishes convicted sex offenders if they fail to register or to update their registration

as the Sex Offender Registration and Notification Act (SORNA) demands.1 The basic offense

under Section 2250(a) consists of three elements: (1) a continuing obligation to report to the

authorities in any jurisdiction in which the individual resides, works, or attends school; (2) the

knowing failure to comply with registration requirements; and (3) a jurisdictional element, i.e.,

(a) an obligation to register as a consequence of a prior qualifying federal conviction or

(b)(i) travel in interstate or foreign commerce, or (ii) travel into or out of Indian Country, or

registration offense carries an additional penalty of imprisonment for not more than 30 years, but

not less than 5 years, if the offender is also guilty of a federal crime of violence.

Federal law also punishes overseas travel coupled with a failure to register that intent. The

elements of this shadow or supplemental offense, Section 2250(b), are: (1) an obligation to

attempting to engage in international travel. The affirmative defense and sentencing provisions

are the same as those that apply to the original offense.

The Justice Department indicates that 18 states, 4 territories, and numerous tribes are now in

substantial compliance with the 2006 legislation.

Elements

Obligation to Register and Maintain Registration

SORNA directs anyone previously convicted of a federal, state, local, tribal, or foreign qualifying

offense to register and to keep his registration information current for as long as SORNA requires

in each jurisdiction in which he resides or is an employee or a student. Initially, he must also

Registrants who relocate or who change their names, jobs, or schools have three business days to

appear and update their registration in at least one of the jurisdictions in which they reside, work,

or attend school. The courts have said that the obligation runs from the time of departure rather

than arrival; that is, from when the offender leaves his former residence, job, or school rather than

when he acquires a new residence or a new job or enrolls in a different school.

In Nichols v. United States, the Supreme Court found that SORNA’s requirements in place at the

time did not apply when offenders relocated abroad. Anticipating the problem, Congress passed

the International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through

Advanced Notification of Traveling Sex Offenders [Act], which among other things, amends

SORNA to compel offenders to supplement their registration statements with information relating

to their plans to travel abroad.

Qualifying Convictions

Only those convicted of a qualifying sex offense need to register. There are five classes of

qualifying offenses: (1) designated federal sex offenses; (2) specified military offenses; (3) crimes

1 18 U.S.C. § 2250. This is an abridged version of CRS Report R42692, SORNA: A Legal Analysis of 18 U.S.C. § 2250

(Failure to Register as a Sex Offender), without the footnotes or the attribution or citations to authority found in the

unabridged report.

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identified as one of the “special offenses against a minor”; (4) crimes in which some sexual act or

sexual conduct is an element; and (5) attempts or conspiracies to commit any offense in one of

these other classes of qualifying offenses. Certain foreign convictions, juvenile adjudications, and

offenses involving consensual sexual conduct do not qualify as offenses that require offenders to

qualifying domestic conviction.

Federal Qualifying Offenses

Federal qualifying offenses “(including an offense prosecuted under section 1152 or 1153 of title

18)” consist of those “under section 1591, or chapter 109A, 110 (other than section 2257, 2257A,

or 2258), or 117, of title 18.”

Military Qualifying Offenses

The list of military qualifying offenses varies according to the date of the offense. For offenses

committed on or after June 28, 2012, the inventory includes conviction under: (1) Uniform Code

of Military Justice (UCMJ) art.120 (Rape, Sexual Assault, Aggravated Sexual Contact, and

Abusive Sexual Contact); (2) UCMJ art. 120b: (Rape, Sexual Assault, and Sexual Abuse (of a

Child)); (3) UCMJ art.120c (Pornography and Forcible Pandering); (4) UCMJ art.134 (General

article – Prostitution and Child Pornography); (5) UCM J art. 80 (Attempt (to commit a

qualifying offense)); (6) UCMJ art. 81 (Conspiracy (to commit a qualifying offense)); (7) UCMJ

art. 82 (Solicitation (to commit a qualifying offense)).

Specified Offenses Against a Child Under 18

Other federal, state, local, tribal, military, or foreign offenses qualify when they involve: (a) an

offense against a child (unless committed by a parent or guardian) involving kidnaping; (b) an

offense against a child involving false imprisonment (unless committed by a parent or guardian);

performance; (e) solicitation to practice child prostitution; (f) video voyeurism as described in

section 1801 of title 18 (committed against a child); (g) possession, production, or distribution of

child pornography; (h) criminal sexual conduct involving a minor or the use of the Internet to

facilitate or attempt such conduct; (i) any conduct that by its nature is a sex offense against a

minor.

Crimes with a Sex Element

In addition, any federal, state, local, military, or foreign “criminal offense that has an element

involving a sexual act or sexual contact with another” qualifies.

Attempt or Conspiracy

Finally, any attempt or conspiracy to commit one of the other qualifying offenses also qualifies.

Juvenile Adjudications

Beyond conviction as an adult for a qualifying offense, juvenile adjudications that involve

qualifying offenses trigger SORNA’s reporting requirements (1) if the individual was 14 years or

older at the time of the misconduct and (2) the misconduct “was comparable to or more severe

than” the federal crime of aggravated sexual abuse (as defined in 18 U.S.C. § 2241) or was an

attempt or conspiracy to engage in such misconduct. The federal aggravated sexual abuse

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offenses include sexual acts committed by force, threat, or incapacitating the victim. Although the

Federal Juvenile Delinquency Act limits disclosure of federal judicial delinquency proceedings, it

does not excuse compliance with SORNA’s registration requirements.

Consensual Sex Offenses

SORNA excludes from its registration requirements adult consensual sexual offenses. The

exception does not extend, however, to instances when the victim is in the custody of the

offender. The exception is available, however, when the victim was a child 13 years or older and

the offender was “not more than 4 years older than the victim.”

Foreign Convictions

Qualifying foreign convictions consist only of those “obtained with sufficient safeguards for

fundamental fairness and due process of the accused.” The National Guidelines state that “[s]ex

offense convictions under the laws of any foreign country are deemed to have been obtained with

sufficient safeguards for fundamental fairness and due process if the U.S. State Department, in its

Country Reports on Human Rights Practices, has concluded that an independent judiciary

generally (or vigorously) enforced the right to a fair trial in that country during the year in which

the conviction occurred.” They go on to point out, however, that SORNA establishes only

minimum requirements. States and other jurisdictions remain free to require registration based on

any foreign conviction.

Expired Obligation

Section 2250 applies only to those with an obligation to register or to periodically refresh their

registration information, and the duration of those obligations under SORNA vary according to

the classification of an offender’s qualifying offense of conviction. SORNA classifies offenders in

tiers, with Tier III reserved for offenders convicted of the most serious federal sex offenses or

their equivalents under state law. SORNA assigns offenders with somewhat less serious federal

sex offenses or their equivalents under state law to Tier II. Tier I consists of all other offenders

required to register.

Absent a reduction for a clean record, Tier I offenders have a registration period of 15 years; Tier

II offenders have a registration period of 25 years; and Tier III offenders have a registration

period of life. Tier I offenders with a clean record for 10 years are eligible for a 5-year reduction

of their registration period. Tier II offenders have no opportunity of a clean-record reduction.

Offenders classified as Tier III offenders by virtue of a juvenile adjudication with a clean record

for 25 years are eligible for reduction of their life-time registration period to 25 years.

Jurisdictional Elements

Section 2250(a) permits prosecution and conviction on the basis of any of three jurisdictional

elements: travel in interstate or foreign commerce; residence in, or travel to or from, Indian

Country; or a prior conviction of one of the federal qualifying offenses.

Travel: Interstate travel is the most commonly invoked of Section 2250(a)’s jurisdictional

elements. It applies to anyone who travels in interstate or foreign commerce with a prior federal

or state qualifying offense who knowingly fails to register or maintain his registration. Section

2250 does not “require[] that a defendant’s interstate travel not be legally compelled.” In the case

of foreign travel, it also applies to anyone who fails to supplement his registration with

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information concerning his intent to travel abroad. The qualifying offense may predate SORNA’s

enactment; the travel may not.

Indian Country: Travel to or from Indian Country, or living there, will also satisfy Section

2250(a)’s jurisdictional requirements. “Indian Country” consists primarily of Indian reservations,

lands over which the United States enjoys state-like exclusive or concurrent legislative

jurisdiction.

Federal Crimes: Travel is only one of Section 2250(a)’s jurisdictional elements; prior conviction

of a federal qualifying offense will also suffice. An individual need only have a knowing failure

to register and a prior conviction for a qualifying sex offense under federal law or the law of the

District of Columbia, the UCMJ, tribal law, or the law of a United States territory or possession.

Federal jurisdiction flows from the jurisdictional basis for the underlying qualifying offense.

Knowing Failure to Register

Section 2250(a)’s third element, after the jurisdictional element and an obligation to register or

update, is a knowing failure to register or to maintain current registration information as required

by SORNA. The government must show that the defendant knew of his obligation and failed to

honor it. The prosecution need not show that he knew he was bound to do so by federal law

generally or by SORNA specifically.

Affirmative Defense

SORNA insists that convicted sex offenders register with state authorities, even when state law

does not require registration. Prior to SORNA, more than a few state sex offender registration

laws applied only to convictions occurring subsequent to their enactment, or only to a narrower

range of offenses than contemplated in the Walsh Act. As a consequence of SORNA and the

Attorney General’s determination to cover pre-SORNA convictions, states must often adjust their

registration laws to come into full compliance. Conscious of the delays and difficulties that might

attend this process, Section 2250(c) affords offenders an affirmative defense when they seek to

“In a prosecution for a violation under subsection (a), it is an affirmative defense that (1) uncontrollable circumstances prevented the individual from complying; (2) the individual did

not contribute to the creation of such circumstances in reckless disregard of the requirement to

comply; and (3) the individual complied as soon as such circumstances ceased to exist.”

Other Attributes

Venue: Although some courts remain to be convinced, it seems that a Section 2250 prosecution

involving interstate travel may be brought in either the state of departure or the state of arrival.

Bail: Federal bail laws permit the prosecution to request a pre-trial detention hearing prior to the

pre-trial release of anyone charged with a violation of Section 2250. The individual may only be

released prior to trial under conditions, which may include among others, that he be electronically

monitored; be subject to restrictions on his personal associations, residence, or travel; report

regularly to authorities; and be subject to a curfew.

Fine and Imprisonment: Upon conviction, the individual may be sentenced to imprisonment for

a term of not more than 10 years and/or fined not more than $250,000. Section 2250(d) also sets

an additional penalty of imprisonment for not more than 30 years, but not less than 5 years, for

the commission of a federal crime of violence when the offender has also violated Section 2250.

Section 16(a) defines “crime of violence” for purposes of title 18 as “[a]n offense that has as an

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element the use, attempted use, or threatened use of physical force against the person or property

of another.”

Sentencing Guidelines: The Sentencing Guidelines heavily influence the sentences imposed for

violations of Section 2250. A district court must begin by calculating the sentencing range

recommended by the Sentencing Guidelines. The court must then consider the recommendation

along with the general statutory sentencing principles. The defendant, as well as the prosecution,

may appeal the sentence imposed, which the appellate courts may overturn if it is either

procedurally or substantively unreasonable. A sentence is procedurally unreasonable when it is

the product, among other things, of an erroneous Guidelines calculation. It is substantively

unreasonable when it is “[dis]proportionate to the seriousness of the circumstances of the offense

[or] offender, [or] [in]sufficient or greater than necessary to comply with the purposes of the

federal sentencing statute.”

Sections 2A3.5 and 2A3.6 of the Sentencing Guidelines provide the initial guidelines for Section

2250 offenses. Section 2A3.5 applies to cases other than those under the aggravated sentencing

provisions of 18 U.S.C. § 2250(d), and sets a defendant’s base offense level according to

SORNA’s tier classifications. A SORNA Tier III sex offender for sentencing purposes is:

[A] sex offender whose offense is punishable by imprisonment for more than 1 year and(A) is comparable to or more severe than the following offenses, or an attempt or

conspiracy to commit such an offense:

(i) aggravated sexual abuse or sexual abuse (as described in sections 2241 and 2242

of title 18); or

(ii) abusive sexual contact (as described in section 2244 of title 18) against a minor

who has not attained the age of 13 years;

(B) involves kidnapping of a minor (unless committed by a parent or guardian); or

A SORNA Tier II sex offender is:

[A] sex offender other than a tier III sex offender whose offense is punishable by

imprisonment for more than 1 year and(A) is comparable to or more severe than the following offenses, when committed

against a minor, or an attempt or conspiracy to commit such an offense against a minor:

(i) sex trafficking (as described in section 1591 of title 18);

(ii) coercion and enticement (as described in section 2422(b) of title 18);

(iii) transportation with intent to engage in criminal sexual activity (as described in

section 2423(a) of title 18);

(iv) abusive sexual contact (as described in section 2244 of title 18);

(B) involves(i) use of a minor in a sexual performance;

(ii) solicitation of a minor to practice prostitution; or

(iii) production or distribution of child pornography; or

A SORNA Tier I sex offender is any sex offender who is not a Tier II or III sex offender.

As noted, the courts use a “categorical approach” to determine whether a prior state, military, or

foreign conviction qualifies a defendant as a Tier I, II, or III sex offender. Under the categorical

approach, courts examine the elements of the state offense. Here, too, courts favor the categorical

approach when SORNA describes the qualifying state statute of conviction by reference to a

particular federal statute or statutes; or when it refers to “elements” rather than “conduct”; or to

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“convictions” rather than “conduct committed.” Under the categorical approach, the statutory

elements of the prior state offense must fit completely within the footprint created by the

elements of the federal statute or statutes. There is no match if the state statute sweeps more

broadly than its federal counterpart, in which case the state conviction may not serve as a SORNA

predicate for tier-classification purposes.

Section 2A3.6 of the Sentencing Guidelines applies to offenses under the aggravated sentencing

provisions of 18 U.S.C. § 2250(d). Section 2A3.6 sets the guideline sentence at the minimum

(imprisonment for 5 years), but acknowledges that upward departure may be warranted in a

particular case.

Section 2A3.6 also supplies the sentencing guidance for a second offense whose existence may

help to explain why section 2259(d) is so infrequently invoked. Regardless of whether a sex

offender has failed to register, a sex offender who is required to register under federal or any other

law faces a sentencing enhancement of 10 years’ imprisonment, 18 U.S.C. § 2260A, when he

commits any of a list of sex offenses. Moreover, recidivist federal sex offenders face the prospect

of mandatory life imprisonment.

Supervised Release: Generally, when a court sentences a defendant to prison, it may also sentence

him to a term of supervised release. Supervised release is a parole-like regime under which a

defendant is subject to the oversight of a probation officer following his release from prison. The

term of supervised release for most crimes is either 1, 3, or 5 years depending on the severity of

the crime of conviction.

The statute and the Sentencing Guidelines establish an array of mandatory and discretionary

conditions for those on supervised release.

A sentencing court may also impose any condition from the statutory inventory of discretionary

conditions for probation. In addition, the Sentencing Guidelines specify thirteen “standard”

conditions; eight “special” conditions; and “additional” special conditions. Finally, the district

court may impose any “specific” condition that, like the other discretionary conditions, meets the

following statutory standards: “(1) is reasonably related to the factors set forth in section

3553(a)(1); (2) involves no greater deprivation of liberty than is reasonably necessary for the

purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and (3) is consistent with

any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C.

994(a).”

The court may modify the conditions of supervised release at any time. It may also revoke the

defendant’s supervised release and sentence him to prison for violating the conditions of

supervised release.

Constitutional Considerations

Much of the litigation relating to Section 2250 and SORNA involves constitutional challenges

taking one of two forms. One argues that SORNA or Section 2250 operates in a manner that the

Constitution specifically forbids, for example in its clauses on Ex Post Facto laws, Due Process,

and Cruel and Unusual Punishment. The other argues that the Constitution does not grant

Congress the legislative authority to enact either Section 2250 or SORNA. These challenges

probe the boundaries of the Commerce Clause, the Necessary and Proper Clause, and the

Spending Clause, among others.

The Supreme Court addressed two of the most common constitutional issues associated with sex

offender registration laws before the enactment of SORNA. One addressed the Ex Post Facto

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Clause implications of sex offender registration, Smith v. Doe; the other addressed Due Process

Clause implications, Connecticut Department of Public Safety v. Doe.

Ex Post Facto

Neither the states nor the federal government may enact laws that operate Ex Post Facto. The

prohibition covers both statutes that outlaw conduct that was innocent when it occurred and

statutes that authorize imposition of a greater penalty for a crime than applied when the crime

occurred. The prohibitions, however, apply only to criminal statutes or to civil statutes whose

intent or effect is so punitive as to belie any but a penal characterization.

In Smith, the Supreme Court dealt with the Ex Post Facto issue in the context of the Alaska sex

offender registration statute. It found the statute civil in nature and effect, not punitive, and

consequently its retroactive application did not violate the Ex Post Facto Clause. Its analysis has

colored the lower federal courts’ treatment of Ex Post Facto challenges to Section 2250 and

SORNA. “Relying on Smith, circuit courts have consistently held that SORNA does not violate

the Ex Post Facto Clause,” with one apparently limited exception.

Due Process

The Supreme Court’s assessment of state sex offender registration statutes has been less

dispositive of due process issues because of the variety of circumstances in which they may arise.

Neither the federal nor state governments may deny a person of “life, liberty, or property, without

due process of law.” Due process requirements take many forms. They preclude punishment

without notice. They bar restraint of liberty or the enjoyment of property without an opportunity

to be heard. They proscribe any punishments or restrictions that are so fundamentally unfair as to

violate fundamental fairness, that is, substantive due process.

In Connecticut Dep’t of Public Safety v. Doe, the Court found no due process infirmity in the

Connecticut sex offender registration regime in spite of its failure to afford offenders an

opportunity to prove they were not dangerous. In Lambert v. California, the Court dealt with

sufficiency of notice. Since “by the time that Congress enacted SORNA, every state had a sex

offender registration law in place,” attempts to build on Lambert have been rejected, because the

courts concluded that offenders knew or should have known of their duty to register. Suggestions

that differences between state and federal requirements result in impermissible vagueness have

fared no better.

To qualify as a violation of substantive due process, a governmental regime must intrude upon a

right “deeply rooted in our history and traditions,” or “fundamental to our concept of

constitutionally ordered liberty.” Perhaps because the threshold is so high, Section 2250 and

SORNA have only infrequently been questioned on substantive due process grounds.

Right to Travel

“The ‘right to travel’ . . . embraces at least three different components. It protects the right of a

citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor

rather than an unfriendly alien when temporarily present in the second State, and, for those

travelers who elect to become permanent residents, the right to be treated like other citizens of

that State.”

Section 2250, it has been contended, violates the right to travel because it punishes those who

travel from one state to another yet fail to register, but not those who fail to register without

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leaving the state. The courts have responded, however, that the right must yield to compelling

state interest in the prevention of future sex offenses.

Cruel and Unusual Punishment

The Eighth Amendment bars the federal government from inflicting “cruel and unusual

punishment.” A punishment is cruel and unusual under the Eighth Amendment when it is grossly

disproportionate to the offense. Section 2250’s 10-year maximum has survived the claim that is

grossly disproportionate to the crime of failing to maintain current and accurate sex offender

registration information. The courts have also declined to hold that SORNA’s registration regime

itself violates the Eighth Amendment, either because they do not consider the requirements

punitive or because they do not consider them grossly disproportionate.

Legislative Authority

The most frequent constitutional challenge to SORNA and Section 2250 is that Congress lacked

the constitutional authority to enact them. Some of these challenges speak to the breadth of

Congress’s constitutional powers, such as those vested under the Tax and Spending Clause, the

Commerce Clause, or the Necessary and Proper Clause. Others address contextual limitations on

the exercise of those powers imposed by such things as the non-delegation doctrine or the

principles of separation of powers reflected in the Tenth Amendment.

Tenth Amendment: The federal government enjoys only such authority as may be traced to the

Constitution; the Tenth Amendment reserves to the states and the people powers not vested in

federal government. Challengers of Congress’s legislative authority to enact SORNA, or the

Justice Department’s authority to prosecute failure to comply with its demands, on Tenth

Amendment grounds have had to overcome substantial obstacles. First, several of Congress’s

constitutional powers are far reaching and SORNA appears within their grasp. Among them are

the powers to regulate interstate and foreign commerce, to tax and spend for the general welfare,

and to enact laws necessary and proper to effectuate the authority the Constitution provides.

Second, although a particular statute may implicate the proper exercise of more than one

constitutional power, only one is necessary for constitutional purposes. Third, “while SORNA

imposes a duty on the sex offender to register, it nowhere imposes a requirement on the State to

accept such registration.” Finally, until recently some courts have held that individual defendants

lacked standing to contest the statutory validity on the basis of constitutional provisions designed

to protect the institutional interests of governmental entities rather than to protect private

interests.

Standing: Several earlier courts rejected SORNA challenges under the Tenth Amendment on the

grounds that the defendants lacked standing. Standing refers to the question of whether a party in

litigation is asserting or “standing” on his or her own rights or only upon those of another. At one

time, there was no consensus among the lower federal appellate courts over whether individuals

had standing to present Tenth Amendment claims. More specifically, at least two circuits had held

that defendants convicted under Section 2250 lacked standing to challenge their convictions on

Tenth Amendment grounds.

Those courts, however, did not have the benefit of the Supreme Court’s Bond and Reynolds

decisions. In Bond, the Court pointed out that a defendant who challenges the Tenth Amendment

validity of the statute under which she was convicted “seeks to vindicate her own constitutional

rights.... The individual, in a proper case, can assert injury from governmental action taken in

excess of the authority that federalism defines. Her rights in this regard do not belong to the

State.” In Reynolds, the Court implicitly recognized the defendant’s standing when, at his behest,

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it held that SORNA did not apply to pre-enactment convictions until after the Attorney General

had exercised his delegated authority. Yet, the fact that a defendant’s Tenth Amendment challenge

may be heard does not mean it will succeed.

Spending for the General Welfare: “The Congress shall have Power To lay and collect Taxes ...

to pay the Debts and provide for the common Defence and general Welfare of the United

States....” “Objectives not thought to be within Article I’s enumerated legislative fields, may

nevertheless be attained through the use of the spending power and the conditional grant of

federal funds.” In the past, the Supreme Court has described the limits on Congress in general

terms:

[First,] the exercise of the spending power must be in pursuit of the general welfare....

Second, ... if Congress desires to condition the States’ receipt of federal funds, it must do

so unambiguously .... Third, ... conditions on federal grants ... [must be] []related to the

federal interest in particular national projects or programs.... Finally, ... other constitutional

provisions may provide an independent bar to the conditional grant of federal funds.

Moreover, at the end of its 2011 term in National Federation of Business v. Sebelius, seven

members of a divided Court found that the power of the Spending Clause may not be exercised to

coerce state participation in a federal program. Congress may use the spending power to induce

state participation; it may not present the choice under such circumstances that a state has no

realistic alternative but to acquiesce.

SORNA establishes minimum standards for the state sex offender registries and authorizes the

Attorney General to enforce compliance by reducing by up to 10% the criminal justice assistance

funds a non-complying state would receive. Some defendants have suggested that this

impermissibly commandeers state officials to administer a federal program and therefore exceeds

Congress’s authority under the Spending Clause. Generally, while Congress may encourage state

participation in a federal program, it is not constitutionally free to require state legislators or

executive officials to act to enforce or administer a federal regulatory program. To date, the

federal appellate courts have held that SORNA’s reduction in federal law enforcement assistance

grants for a state’s failure to comply falls on the encouragement, rather than the directive, side of

the constitutional line. The fact that most states do not feel compelled to bring their systems into

full SORNA compliance may lend credence to that assessment.

Commerce Clause: “The Congress shall have Power ... To regulate Commerce with foreign

Nations, and among the several States, and with the Indian Tribes.” The Supreme Court explained

in Lopez and again in Morrison that Congress’s Commerce Clause power is broad but not

boundless.

Modern Commerce Clause jurisprudence has identified three broad categories of activity

that Congress may regulate under its commerce power. First, Congress may regulate the

use of the channels of interstate commerce. Second, Congress is empowered to regulate

and protect the instrumentalities of interstate commerce, or persons or things in interstate

commerce, even though the threat may come only from intrastate activities. Finally,

Congress’ commerce authority includes the power to regulate those activities having a

substantial relation to interstate commerce ... i.e., those activities that substantially affect

interstate commerce.

The lower federal appellate courts have rejected Commerce Clause attacks on Section 2250 in the

interstate travel cases, because there they believe Section 2250 “fits comfortably with the first

two Lopez prongs[, i.e. the regulation of (1) the ‘channels’ of interstate commerce and (2) the

‘instrumentalities’ of interstate commerce].” They have also rejected Commerce Clause attacks

on SORNA in intrastate cases based on the strength of the Necessary and Proper Clause:

Congressional Research Service

SORNA: An Abridged Legal Analysis of 18 U.S.C. § 2250

Requiring sex offenders to update their registrations due to intrastate changes of address or

employment status is a perfectly logical way to help ensure that states will more effectively

be able to track sex offenders when they do cross state lines. To the extent that § 16913

regulates solely intrastate activity, its means are reasonably adapted to the attainment of a

legitimate end under the commerce power and therefore proper.

Necessary and Proper: The Supreme Court in Comstock described the breadth of Congress’s

authority under the Necessary and Proper Clause in the context of another Walsh Act provision.

The Walsh Act authorizes the Attorney General to hold federal inmates beyond their release date

to initiate federal civil commitment proceedings for the sexually dangerous. Comstock and others

questioned application of the statute on the grounds that it exceeded Congress’s legislative

authority under the Commerce and Necessary and Proper Clauses.

The Court pointed out that the Necessary and Proper Clause has long been understood to

empower Congress to enact legislation “rationally related to the implementation of a

constitutionally enumerated power.” Moreover, be the chain clear and unbroken, the challenged

statute need not necessarily be directly linked to a constitutionally enumerated power. The

Comstock “statute [18 U.S.C. § 4248] is a ‘necessary and proper’ means of exercising the federal

authority that permits Congress to create federal criminal laws [(to carry into effect its Commerce

Clause power for instance)], to punish their violation, to imprison violators, to provide

appropriately for those imprisoned, and to maintain the security of those who are not imprisoned

but who may be affected by the federal imprisonment of others.”

Separation of Powers/Non-Delegation: The first section of the first article of the Constitution

declares that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United

States.” This means that Congress “may not transfer to another branch ‘powers which are strictly

and exclusively legislative.’” This non-delegation doctrine, however, does not prevent Congress

from delegating the task of filling in the details of its legislative handiwork, as long as it provides

“intelligent principles” to direct the effectuation of its legislative will. In Reynolds, the Supreme

Court read SORNA to “require[] the Attorney General to apply SORNA to all pre-Act offenders

as soon as feasible.” The question later in Gundy was whether “Congress ma[de] an

impermissible delegation when it instructed the Attorney General to apply SORNA’s registration

requirements to pre-Act offenders as soon as feasible?” For a majority of the Court, “under [the]

Court’s long-established law, that question is easy, its answer is no.” Similarly, the U.S. Court of

Appeals for the Second Circuit concluded “that the Secretary [of Defense]’s discretion in

designating certain military offenses as sex offenses under § 20911(5)(A)(iv) [of SORNA] has

been clearly and intelligibly limited by Congress.

Author Information

Charles Doyle

Senior Specialist in American Public Law

Congressional Research Service

SORNA: An Abridged Legal Analysis of 18 U.S.C. § 2250

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Congressional Research Service

R42691 · VERSION 10 · UPDATED

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