Sex offender registration is still constitutional, says the Eighth Circuit

United States v. Anderson, No. 14-1165 (8th Cir. Nov. 17, 2014).

Back in 2006, Congress passed a law that requires sex offenders to register with the states where they reside. When they move to a new state, they have to re-register with that state. And it’s a federal crime for sex offenders not to re-register after they move. 

Sex offender Allon Anderson was convicted of moving to Arkansas and failing to re-register. Before the Eighth Circuit, he now argues that Congress lacked the power under the Constitution to enact the sex registration law and punish people for breaking it. 

There’s a problem, though: back in 2008 and 2009, the Eighth Circuit rejected the very same argument. But Anderson says that those earlier decisions are no longer good law because they conflict with the Supreme Court’s 2012 decision on the Affordable Care Act, a.k.a. Obamacare. 

Now, in those earlier decisions, the Eighth Circuit noted that Congress had done two separate things in its sex offender registration law. Number one, it had required sex offenders to register, period—even if they didn’t cross state lines. Number two, it made it a crime to not re-register after crossing state or tribal lines. As for this second part of the law, the Eighth Circuit had little trouble determining it was constitutional under the Commerce Clause—after all, interstate travel was involved. But what about the first part of the law—the part of the law requiring intrastate registration? The Eighth Circuit said that part of the law was constitutional too, because the intrastate registration requirement was a “necessary and proper” means of promoting Congress’s interest in punishing sex offenders who cross state lines and fail to re-register.

The Eighth Circuit says that its earlier reasoning is still good law. Treating Chief Justice Roberts’s opinion in the health care case as controlling, the court says that the Chief Justice “left intact” the principle that Congress may regulate intrastate activity when it’s a necessary component of larger interstate regulation. That is what makes the sex offender registration requirement constitutional, so Anderson’s conviction must stand.