Opinion analysis: A modest ruling, or vast federal authority?

The Supreme Court ruled today that Congress can require a former member of the Air Force to register as a sex offender, and to punish his failure to register, for a sex crime he committed while he was in the Air Force.  The case, United States v. Kebodeaux, tested congressional authority to require Kebodeaux to register under the Sex Offender Registration and Notification Act, or SORNA, even after he was discharged from the military and after he completed his military sentence for the crime.  In other words, the case tested whether Congress could require Kebodeaux to register even after the federal government may have severed its relationship with him and released him from federal authority.

The Fifth Circuit ruled that Congress lacked this power.  That court held that Kebodeaux was released “unconditionally” when he was released from military custody for his original sex crime, and that he therefore lacked “any . . . special relationship with the federal government.”  Without that relationship, the court said, Congress could not require him to register.

But the Supreme Court today reversed.  The Court ruled that Kebodeaux was under federal authority at the time of his release from military custody, because he was required to register under SORNA’s precursor, the federal Wetterling Act, which was on the books at the time of Kebodeaux’s original offense.  (The Court said that the Fifth Circuit was wrong to hold that his release was “unconditional,” without a federal registration requirement.  The Wetterling Act applied.)  Moreover, the Court held that SORNA simply modified and replaced the registration requirement in the Wetterling Act, and created a valid and continuing federal registration obligation over him.

The Court held that the registration requirement – first in the Wetterling Act, later under SORNA – was a valid exercise of congressional authority under the Necessary and Proper Clause.  That is, the requirement was necessary and proper to execute the military regulation under which Kebodeaux was originally charged for his sex crime.  That military regulation, in turn, was a valid exercise of congressional authority under its Military Regulation power – an enumerated power in Article I, Section 8 of the Constitution.

Stated the other way around, the federal government exerted an uninterrupted line of authority over Kebodeaux, from the time it charged him and convicted him as an airman (under congressional power to set military regulations) to the time it required him to register upon his release pursuant to the Wetterling Act (under the Necessary and Proper Clause) to the time it required him to register under the modified requirement in SORNA (also under the Necessary and Proper Clause).  This steady line of authority was the linchpin to the Court’s ruling.

This line-tracing is also a familiar way of analyzing congressional authority under the Necessary and Proper Clause.  We saw the Court adopt this same approach three years ago in United States v. Comstock, in which the Court upheld congressional authority to authorize federal district courts to order the civil commitment of a “sexually dangerous” federal prisoner even beyond the term of his sentence.  Comstock played a prominent role in the arguments and briefs in this case.  It also divided the Court exactly the same: seven to two, with only Justices Scalia and Thomas dissenting.  And it had the same author, Justice Breyer.

In these ways, coming on the heels of Comstock, Kebodeaux may not be a particularly surprising or notable decision.  After all, so long as the Court could establish that Kebodeaux was required to register under the Wetterling Act, Comstock’s Necessary-and-Proper analysis falls right into place to establish a line of continuing federal authority and to uphold SORNA.  Kebodeaux then reduces to a case on mere statutory construction: did the Wetterling Act apply to Kebodeaux?

But in other ways, Kebodeaux, like Comstock, is a critically important ruling that illustrates the vast sweep of congressional authority.  To see this, consider Justice Thomas’s dissents, joined largely by Justice Scalia, in both cases.  Justice Thomas argued in both cases that the particular congressional act at issue, viewed in isolation and divorced from the larger scheme of congressional regulation, lacked ultimate support in the enumerated powers of Congress.  In particular, in Kebodeaux, Justice Thomas argued that SORNA’s after-enacted registration requirement, viewed alone, could not apply to Kebodeaux.

The majority in both Comstock and Kebodeaux rejected Justice Thomas’s narrow view.  Instead, a comfortable majority in both cases – seven Justices, even if two of them in each case had some reservations – signed on to Justice Breyer’s power-upon-power approach, which reads the Necessary and Proper Clause as authorizing congressional action so long as it stands on only the last-enacted valid congressional act (which itself may be enacted pursuant to the Necessary and Proper Clause).  This approach gives Congress vast power, allowing it to build a potentially huge tower of authority, block by block, so long as the foundation is ultimately grounded in Article I, Section 8.

Next, consider the concurrences.  Chief Justice Roberts and Justice Alito concurred in the judgment only, and each wrote separately, in Kebodeaux.  Chief Justice Roberts wrote to emphasize that congressional authority to enact SORNA was rooted in the Military Regulation power, and to disassociate himself with anything in Justice Breyer’s opinion that might be read to grant Congress a general police power.  Justice Alito wrote to argue that Congress had the power to enact SORNA because Congress helped create the problem that SORNA was designed to address.  (Justices Kennedy and Alito similarly concurred in the judgment, and each wrote separately, in Comstock, in order to argue for two different limiting principles to the Court’s ruling in that case.)

But still the concurring Justices signed on to Justice Breyer’s basic approach to the Necessary and Proper Clause and to the Court’s judgments in these cases.  And to the extent that the concurrences represent limiting principles to the Court’s approach, they are distinctly minority views: these concurrences only garnered one vote – their own – and even the authors did not sign on to the other’s concurrence.  The most we can say about these concurrences is that they represent a single Justice’s views on the theoretical limits to the Court’s approach.

Finally, consider Justice Breyer’s majority opinion, joined in full by four other Justices.  It contains muscular language on the power of Congress, and references to rarely cited cases that themselves contain even more muscular language on the power of Congress.  (Justice Breyer resurrects the likes of James Everard’s Breweries v. Day (1924) and Lambert v. Yellowly (1926), two cases on congressional authority to regulate liquor under the Eighteenth Amendment, to make points about congressional authority.  These cases, in addition to standing for vast congressional authority, all but write out any federalism restraints on congressional authority.)  Justice Breyer also writes at length on why SORNA is reasonable (and therefore valid under the Necessary and Proper Clause, under Chief Justice Marshall’s famous formulation in McCulloch v. Maryland).  As Chief Justice Roberts argues in concurrence, this language is quite broad, even pointing toward a generalized police power, and he argues against it.  Still, five Justices signed on.

As broad as the Court’s ruling is, however, it did not say that Congress would have had authority to require registration if Kebodeaux were not required to register under the Wetterling Act – that is, if Kebodeaux fell outside federal authority when SORNA was enacted.  But it did not say the opposite, either.  That ruling, one way or the other, simply was not necessary to resolve the case.  The Court reasonably took a minimalist approach, resolving the constitutional question on the application of a statute, the Wetterling Act.  (On this point, it is worth recalling that the Court held just last Term in National Federation of Independent Business v. Sebelius that Congress lacked authority to enact the universal coverage provision of the Affordable Care Act under the Commerce Clause.  Chief Justice Roberts’s controlling opinion turned on his view that individuals subject to the so-called “individual mandate” fell outside the reach of the Commerce Clause, because they were not part of the market or otherwise under congressional Commerce Clause authority.  That theory looked very much like Kebodeaux’s core argument here – that Congress could not require him to register, because he fell outside federal authority.  The Court dodged that question today, by holding that Kebodeaux fell within congressional authority, and did not even cite NFIB.)

Kebodeaux is on the one hand a very narrow, unremarkable case.  It simply says that Congress can modify registration requirements for a person already under a continuing federal registration obligation.  But on the other hand, the language and line-up in the Court’s opinions suggests that Kebodeaux, like Comstock before it, represents potentially vast congressional authority.  Like Comstock, Kebodeaux is well suited to provide fodder to both sides in the ongoing debates over the scope of congressional authority.