UNITED STATES v. KEBODEAUX
Anthony Kebodeaux was a registered sex offender. He served three years in prison in for his offense. After his release Congress enacted the Sex Offender Registration and Notification Act (SORNA). When Kebodeaux moved from San Antonio, Texas to El Paso, Texas, he failed to update his residence in the registry within three days, as required, and was charged and convicted under SORNA. He appealed, arguing that the law was unconstitutional as it applied to him because regulating a sex offender’s intrastate travel after being released from custody exceeds Congress’ powers. The U.S. Court of Appeals for the Fifth Circuit reversed, holding that past commission of a federal crime is insufficient to permit the federal government to have unending criminal authority over Kebodeaux. While SORNA was unconstitutional under the circumstances of this case, the court did not question Congress’ ability to place restrictions on federal prisoners after release, including requiring sex offenders convicted after SORNA to register intrastate changes of residence.
Did the court of appeals err in conducting its constitutional analysis on the premise that Kebodeaux was not under a federal registration obligation until SORNA was enacted, when pre SORNA federal law also obligated him to register as a sex offender?
Did the court of appeals erred in holding that Congress lacks the Article I authority to provide for criminal penalties as applied to a person who was convicted of a sex offense under federal law and completed his criminal sentence before SORNA was enacted?
Legal provision: Sex Offender Registration and Notification Act
Yes, yes. Justice Stephen G. Breyer delivered the opinion of the 5-4 majority. The Court held that the Necessary and Proper Clause grants Congress the power to enact SORNA and apply it in this case, despite the fact that Kebodeaux was convicted and served his time prior to SORNA’s enactment. Although SORNA was not in effect when Kebodeaux was sentenced, his release was not conditional. Rather, he was subject to the Wetterling Act, a federal act that entailed similar registration requirements later enacted under SORNA. Because Kebodeaux was subject to federal requirements at the time of his release, it is within Congress’ power to modify those requirements through SORNA and apply them to Kebodeaux. The Court also held that the Necessary and Proper Clause granted Congress the power to create federal crimes and regulate their punishment, so SONRA did not represent Congress overstepping its bounds.
Chief Justice John G. Roberts, Jr. wrote an opinion concurring in the judgment in which he argued that the Constitution grants Congress the power to regulate the conduct of members of the military and impose penalties if those regulations are disobeyed. This power, in addition to the Necessary and Proper Clause, gave Congress the authority to act in this case. However, he argued that the majority’s opinions analysis of the benefits of the registration requirement are unnecessary to reach the decision in the case and stray too far into justification for a federal police power. In his separate opinion concurring in the judgment, Justice Samuel A. Alito, Jr. wrote that the Necessary and Proper Clause grants Congress the power to require the registration of members of the military who have been convicted of sex crimes as the gap between military and state laws often does not allow the state to do so.
Justice Antonin Scalia wrote a dissenting opinion in which he argued that an act intended to execute a power of Congress is only necessary and proper if the power is as well. Because it is not clear that the Wetterling Act’s registration requirement is a valid Congressional power, SORNA’s modification and execution of that power is equally unsure. In his separate dissent, Justice Clarence Thomas argued that SORNA’s registration requirements are unconstitutional because they do not execute any Congressional powers explicitly granted by the Constitution. Instead, SORNA represents an unconstitutional usurpation of state powers regarding sex offender registration. Although Congress has the power to regulate the conduct of members of the military, once Kebodeaux became a civilian, there is no justification for the involvement of the federal government. Justice Antonin Scalia partially joined in the dissent.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
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 Breyer delivered the opinion of the Court.
In 1999 a special court-martial convicted Anthony Kebodeaux, a member of the United States Air Force, of a sex offense. It imposed a sentence of three months’ imprisonment and a bad conduct discharge. In 2006, several years after Kebodeaux had served his sentence and been discharged, Congress enacted the Sex Offender Registration and Notification Act (SORNA), 120Stat. 590, 42 U. S. C. §16901 et seq., a federal statute that requires those convicted of federal sex offenses to register in the States where they live, study, and work. §16913(a); 18 U. S. C. §2250(a). And, by regulation, the Federal Government made clear that SORNA’s registration requirements apply to federal sex offenders who, when SORNA became law, had already completed their sentences. 42 U. S. C. §16913(d) (Attorney General’s authority to issue regulations); 28 CFR §72.3 (2012) (regulation specifying application to pre-SORNA offenders).
We here must decide whether the Constitution’s Necessary and Proper Clause grants Congress the power to enact SORNA’s registration requirements and apply them to a federal offender who had completed his sentence prior to the time of SORNA’s enactment. For purposes of answering this question, we assume that Congress has complied with the Constitution’s Ex Post Facto and Due Process Clauses. See Smith v. Doe, 538 U. S. 84 –106 (2003) (upholding a similar Alaska statute against ex post facto challenge); Supp. Brief for Kebodeaux on Rehearing En Banc in No. 08–51185 (CA5) (not raising any Due Process challenge); Brief for Respondent (same). We conclude that the Necessary and Proper Clause grants Congress adequate power to enact SORNA and to apply it here.I
As we have just said, in 1999 a special court-martial convicted Kebodeaux, then a member of the Air Force, of a federal sex offense. He served his 3-month sentence; the Air Force released him with a bad conduct discharge. And then he moved to Texas. In 2004 Kebodeaux registered as a sex offender with Texas state authorities. Brief for Respondent 6–7. In 2006 Congress enacted SORNA. In 2007 Kebodeaux moved within Texas from San Antonio to El Paso, updating his sex offender registration. App. to Pet. for Cert. 167a–168a. But later that year he returned to San Antonio without making the legally required sex-offender registration changes. Id., at 169a. And the Federal Government, acting under SORNA, prosecuted Kebodeaux for this last-mentioned SORNA registration failure.
A Federal District Court convicted Kebodeaux of having violated SORNA. See 687 F. 3d 232, 234 (CA5 2012) (en banc). On appeal a panel of the United States Court of Appeals for the Fifth Circuit initially upheld the conviction. 647 F. 3d 137 (2011) (per curiam). But the Circuit then heard the appeal en banc and, by a vote of 10 to 6, reversed. 687 F. 3d, at 234. The court stated that, by the time Congress enacted SORNA, Kebodeaux had “fully served” his sex-offense sentence; he was “no longer in federal custody, in the military, under any sort of supervised release or parole, or in any other special relationship with the federal government.” Ibid.
The court recognized that, even before SORNA, federal law required certain federal sex offenders to register. Id., at 235, n. 4. See Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, §170101, 108Stat. 2038–2042. But it believed that the pre-SORNA federal registration requirements did not apply to Kebodeaux. 687 F. 3d, at 235, n. 4. Hence, in the Circuit’s view, Kebodeaux had been “unconditionally let . . . free.” Id., at 234. And, that being so, the Federal Government lacked the power under Article I’s Necessary and Proper Clause to regulate through registration Kebodeaux’s intrastate movements. Id., at 234–235. In particular, the court said that after “the federal government has unconditionally let a person free . . . the fact that he once committed a crime is not a jurisdictional basis for subsequent regulation and possible criminal prosecution.” Ibid.
The Solicitor General sought certiorari. And, in light of the fact that a Federal Court of Appeals has held a federal statute unconstitutional, we granted the petition. See, e.g., United States v. Morrison, 529 U. S. 598, 605 (2000) ; United States v. Edge Broadcasting Co., 509 U. S. 418, 425 (1993) .II
We do not agree with the Circuit’s conclusion. And, in explaining our reasons, we need not go much further than the Circuit’s critical assumption that Kebodeaux’s release was “unconditional,” i.e., that after Kebodeaux’s release, he was not in “any . . . special relationship with the federal government.” 687 F. 3d, at 234. To the contrary, the Solicitor General, tracing through a complex set of statutory cross-references, has pointed out that at the time of his offense and conviction Kebodeaux was subject to the federal Wetterling Act, an Act that imposed upon him registration requirements very similar to those that SORNA later mandated. Brief for United States 18–29.
Congress enacted the Wetterling Act in 1994 and updated it several times prior to Kebodeaux’s offense. Like SORNA, it used the federal spending power to encourage States to adopt sex offender registration laws. 42 U. S. C. §14071(i) (2000 ed.); Smith, supra, at 89–90. Like SORNA, it applied to those who committed federal sex crimes. §14071(b)(7)(A). And like SORNA, it imposed federal penalties upon federal sex offenders who failed to register in the States in which they lived, worked, and studied. §§14072(i)(3)–(4).
In particular, §14072(i)(3) imposed federal criminal penalties upon any “person who is . . . described in section 4042(c)(4) of title 18, and knowingly fails to register in any State in which the person resides.” The cross-referenced §4042(c)(4) said that a “person is described in this paragraph if the person was convicted of” certain enumerated offenses or “[a]ny other offense designated by the Attorney General as a sexual offense for purposes of this subsection.” 18 U. S. C. §4042(c)(4). In 1998 the Attorney General “delegated this authority [to designate sex offenses] to the Director of the Bureau of Prisons.” Dept. of Justice, Bureau of Prisons, Designation of Offenses Subject to Sex Offender Release Notification, 63 Fed. Reg. 69386. And that same year the Director of the Bureau of Prisons “designate[d]” the offense of which Kebodeaux was convicted, namely the military offense of “carnal knowledge” as set forth in Article 120(B) of the Code of Military Justice. Id., at 69387 See 28 CFR §571.72(b)(2) (1999). A full reading of these documents makes clear that, contrary to Kebodeaux’s contention, the relevant penalty applied to crimes committed by military personnel.
Moreover, a different Wetterling Act section imposed federal criminal penalties upon any “person who is . . . sentenced by a court martial for conduct in a category specified by the Secretary of Defense under section 115(a)(8)(C) of title I of Public Law 105–119, and knowingly fails to register in any State in which the person resides.” 42 U. S. C. §14072(i)(4) (2000 ed.). The cross-referenced section, §115(a)(8)(C), said that the “Secretary of Defense shall specify categories of conduct punishable under the Uniform Code of Military Justice which encompass a range of conduct comparable to that described in [certain provisions of the Violent Crime Control and Law Enforcement Act of 1994], and such other conduct as the Secretary deems appropriate.” 1998 Appropriations Act, §115(a)(8)(C)(i), 111Stat. 2466. See note following 10 U. S. C. §951 (2000 ed.). The Secretary had delegated certain types of authority, such as this last mentioned “deem[ing]” authority, to an Assistant Secretary of Defense. DoD Directive 5124.5, p. 4 (Oct. 31, 1994). And in December 1998 an Assistant Secretary, acting pursuant to this authority, published a list of military crimes that included the crime of which Kebodeaux was convicted, namely Article 120(B) of the Uniform Code of Military Justice. App. to Pet. for Cert. 171a–175a. The provision added that “[c]onvictions . . . shall trigger requirements to notify state and local law enforcement agencies and to provide information to inmates concerning sex offender registration requirements.” Id., at 175a. And, the provision says (contrary to Kebodeaux’s reading, Brief for Respondent 57), that it shall “take effect immediately.” It contains no expiration date. App. to Pet. for Cert. 175a.
We are not aware of any plausible counterargument to the obvious conclusion, namely that as of the time of Kebodeaux’s offense, conviction and release from federal custody, these Wetterling Act provisions applied to Kebodeaux and imposed upon him registration requirements very similar to those that SORNA later imposed. Contrary to what the Court of Appeals may have believed, the fact that the federal law’s requirements in part involved compliance with state-law requirements made them no less requirements of federal law. See generally United States v. Sharpnack, 355 U. S. 286 –294 (1958) (Congress has the power to adopt as federal law the laws of a State and to apply them in federal enclaves); Gibbons v. Ogden, 9 Wheat. 1, 207–208 (1824) (“Although Congress cannot enable a State to legislate, Congress may adopt the provisions of a State on any subject. . . . The act [adopts state systems for regulation of pilots] and gives [them] the same validity as if its provisions had been specially made by Congress”).III
Both the Court of Appeals and Kebodeaux come close to conceding that if, as of the time of Kebodeaux’s offense, he was subject to a federal registration requirement, then the Necessary and Proper Clause authorized Congress to modify the requirement as in SORNA and to apply the modified requirement to Kebodeaux. See 687 F. 3d, at 234–235, and n. 4; Tr. of Oral Arg. 38–39. And we believe they would be right to make this concession.
No one here claims that the Wetterling Act, as applied to military sex offenders like Kebodeaux, falls outside the scope of the Necessary and Proper Clause. And it is difficult to see how anyone could persuasively do so. The Constitution explicitly grants Congress the power to “make Rules for the . . . Regulation of the land and naval Forces.” Art. I, §8, cl. 14. And, in the Necessary and Proper Clause itself, it grants Congress the power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers” and “all other Powers” that the Constitution vests “in the Government of the United States, or in any Department or Officer thereof.” Id., cl. 18.
The scope of the Necessary and Proper Clause is broad. In words that have come to define that scope Chief Justice Marshall long ago wrote:
“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 with the letter and spirit of the constitution, are constitutional.” McCulloch v. Maryland, 4 Wheat. 316, 421 (1819).
As we have come to understand these words and the provision they explain, they “leav[e] to Congress a large discretion as to the means that may be employed in executing a given power.” Lottery Case, 188 U. S. 321, 355 (1903) . See Morrison, 529 U. S., at 607. The Clause allows Congress to “adopt any means, appearing to it most eligible and appropriate, which are adapted to the end to be accomplished and consistent with the letter and spirit of the Constitution.” James Everard’s Breweries v. Day, 265 U. S. 545, 559 (1924) .
The Constitution, for example, makes few explicit references to federal criminal law, but the Necessary and Proper Clause nonetheless 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. See United States v. Comstock, 560 U. S. 126 –137 (2010).
Here, under the authority granted to it by the Military Regulation and Necessary and Proper Clauses, Congress could promulgate the Uniform Code of Military Justice. It could specify that the sex offense of which Kebodeaux was convicted was a military crime under that Code. It could punish that crime through imprisonment and by placing conditions upon Kebodeaux’s release. And it could make the civil registration requirement at issue here a consequence of Kebodeaux’s offense and conviction. This civil requirement, while not a specific condition of Kebodeaux’s release, was in place at the time Kebodeaux committed his offense, and was a consequence of his violation of federal law.
And Congress’ decision to impose such a civil requirement that would apply upon the release of an offender like Kebodeaux is eminently reasonable. 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. See Smith, 538 U. S., at 102–103 (sex offender registration has “a legitimate nonpunitive purpose of ‘public safety, which is advanced by alerting the public to the risk of sex offenders in their community’ ”). There is evidence that recidivism rates among sex offenders are higher than the average for other types of criminals. See Dept. of Justice, Bureau of Justice Statistics, P. Langan, E. Schmitt, & M. Durose, Recidivism of Sex Offenders Released in 1994, p. 1 (Nov. 2003) (reporting that compared to non-sex offenders, released sex offenders were four times more likely to be rearrested for a sex crime, and that within the first three years following release 5.3% of released sex offenders were rearrested for a sex crime). There is also conflicting evidence on the point. Cf. R. Tewsbury, W. Jennings, & K. Zgoba, Final Report on Sex Offenders: Recidivism and Collateral Consequences (Sept. 2011) (concluding that sex offenders have relatively low rates of recidivism, and that registration requirements have limited observable benefits regarding recidivism). But the Clause gives Congress the power to weigh the evidence and to reach a rational conclusion, for example, that safety needs justify postrelease registration rules. See Lambert v. Yellowley, 272 U. S. 581 – 595 (1926) (upholding congressional statute limiting the amount of spirituous liquor that may be prescribed by a physician, and noting that Congress’ “finding [regarding the appropriate amount], in the presence of the well-known diverging opinions of physicians, cannot be regarded as arbitrary or without a reasonable basis”). See also Gonzales v. Raich, 545 U. S. 1, 22 (2005) (“In assessing the scope of Congress’ authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a ‘rational basis’ exists for so concluding”). See also H. R. Rep. No. 109–218, pt. 1, pp. 22, 23 (2005) (House Report) (citing statistics compiled by the Justice Department as support for SORNA’s sex offender registration regime).
At the same time, “it is entirely reasonable for Congress to have assigned the Federal Government a special role in ensuring compliance with SORNA’s registration requirements by federal sex offenders—persons who typically would have spent time under federal criminal supervision.” Carr v. United States, 560 U. S. 438 , ___ (2010) (slip op., at 12). The Federal Government has long kept track of former federal prisoners through probation, parole, and supervised release in part to prevent further crimes thereby protecting the public against the risk of recidivism. See Parole Act, 36Stat. 819; Probation Act, ch. 521, 43Stat. 1259; Sentencing Reform Act of 1984, ch. II, 98Stat. 1987. See also 1 N. Cohen, The Law of Probation and Parole §§7:3, 7:4 (2d ed. 1999) (principal purposes of postrelease conditions are to rehabilitate the convict, thus preventing him from recidivating, and to protect the public). Neither, as of 1994, was registration particularly novel, for by then States had implemented similar requirements for close to half a century. See W. Logan, Knowledge as Power: Criminal Registration and Community Notification Laws in America 30–31 (2009). Moreover, the Wetterling Act took state interests into account by, for the most part, requiring released federal offenders to register in accordance with state law. At the same time, the Wetterling Act’s requirements were reasonably narrow and precise, tying time limits to the type of sex offense, incorporating state-law details, and relating penalties for violations to the sex crime initially at issue. See 42 U. S. C. §14071(b) (2000 ed.).
The upshot is that here Congress did not apply SORNA to an individual who had, prior to SORNA’s enactment, been “unconditionally released,” i.e., a person who was not in “any . . . special relationship with the federal government,” but rather to an individual already subject to federal registration requirements that were themselves a valid exercise of federal power under the Military Regulation and Necessary and Proper Clauses. But cf. post, at 1 (Scalia, J., dissenting).
SORNA, enacted after Kebodeaux’s release, somewhat modified the applicable registration requirements. In gen-eral, SORNA provided more detailed definitions of sex offenses, described in greater detail the nature of the information registrants must provide, and imposed somewhat different limits upon the length of time that registration must continue and the frequency with which offenders must update their registration. 42 U. S. C. §§16911, 16913–16916 (2006 ed. and Supp. V). But the statute, like the Wetterling Act, used Spending Clause grants to encourage States to adopt its uniform definitions and requirements. It did not insist that the States do so. See §§16925(a), (d) (2006 ed.) (“The provisions of this subchapter that are cast as directions to jurisdictions or their officials constitute, in relation to States, only conditions required to avoid the reduction of Federal funding under this section”).
As applied to an individual already subject to the Wetterling Act like Kebodeaux, SORNA makes few changes. In particular, SORNA modified the time limitations for a sex offender who moves to update his registration to within three business days of the move from both seven days before and seven days after the move, as required by the Texas law enforced under the Wetterling Act. Compare 42 U. S. C. §16913(c) with App. to Pet. for Cert. 167a–168a. SORNA also increased the federal penalty for a federal offender’s registration violation to a maximum of 10 years from a maximum of 1 year for a first offense. Compare 18 U. S. C. §2250(a) with 42 U. S. C. §14072(i) (2000 ed.). Kebodeaux was sentenced to one year and one day of imprisonment. For purposes of federal law, SORNA reduced the duration of Kebodeaux’s registration requirement to 25 years from the lifetime requirement imposed by Texas law, compare 42 U. S. C. §16915(a) (2006 ed.) with App. to Pet. for Cert. 167a, and reduced the frequency with which Kebodeaux must update his registration to every six months from every 90 days as imposed by Texas law, compare 42 U. S. C. §16916(2) with App. to Pet. for Cert. 167a. And as far as we can tell, while SORNA punishes violations of its requirements (instead of violations of state law), the Federal Government has prosecuted a sex offender for violating SORNA only when that offender also violated state-registration requirements.
SORNA’s general changes were designed to make more uniform what had remained “a patchwork of federal and 50 individual state registration systems,” Reynolds v. United States, 565 U. S. ___, ___ (2012) (slip op., at 2), with “loopholes and deficiencies” that had resulted in an estimated 100,000 sex offenders becoming “missing” or “lost,” House Report 20, 26. See S. Rep. No. 109–369, pp. 16–17 (2006). See also Jinks v. Richland County, 538 U. S. 456 –463 (2003) (holding that a statute is authorized by the Necessary and Proper Clause when it “provides an alternative to [otherwise] unsatisfactory options” that are “obviously inefficient”). SORNA’s more specific changes reflect Congress’ determination that the statute, changed in respect to frequency, penalties, and other details, will keep track of more offenders and will encourage States themselves to adopt its uniform standards. No one here claims that these changes are unreasonable or that Congress could not reasonably have found them “necessary and proper” means for furthering its pre-existing registration ends.
We conclude that the SORNA changes as applied to Kebodeaux fall within the scope Congress’ authority under the Military Regulation and Necessary and Proper Clauses. The Fifth Circuit’s judgment to the contrary is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
SUPREME COURT OF THE UNITED STATES
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 offender 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 enumerated 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 registration” 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 Airman 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 general 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 argument 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 funding 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]onstitution.” 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, however, 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 enumerated 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 founding”). 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.
1 A “sex offender” is defined as “an individual who was convicted” of an offense that falls within the statute’s defined offenses. 42 U. S. C. §§16911(1) and (5)–(7).
2 All 50 States have used their general police powers to enact sex offender registration laws. See, e.g., Ala. Code §§13A–11–200 to 13A–11–202, 13A–11–1181 (2006); Alaska Stat. §§11.56.840, 12.63.010 to 12.63.100, 18.66.087, 28.05.048, 33.30.035 (2006); Ariz. Rev. Stat. Ann. §§13–3821 to 13–3825 (2001 and Supp. 2007); Ark. Code Ann. §§12–12–901 to 12–12–909 (2003 and Supp. 2007); Cal. Penal Code Ann. §§290 to 290.4 (2008); Colo. Rev. Stat. Ann. §§16–22–103 to 16–22–104, 18–3–412.5 (2007); Conn. Gen. Stat. §§54–251 to 54–254 (2008 Supp.); Del. Code Ann., Tit. 11, §4120 (2007); Fla. Stat. Ann. §§775.13, 775.21 (2007); Ga. Code Ann. §42–1–12 (Supp. 2007); Haw. Rev. Stat. §§846E–1, 846E–2 (2006 Cum. Supp.); Idaho Code §§18–8304 to 18–8311 (Supp. 2008); Ill. Comp. Stat., ch. 730, §§150/1 to 150/10, 152/101 to 152/121 (West 2006); Ind. Code §§11–8–8–1 to 11–8–8–7 (Supp. 2007); Iowa Code §§692A.1 to 692A.16 (2003 and Supp. 2008); Kan. Stat. Ann. §§22–4901 to 22–4910 (1995); Ky. Rev. Stat. Ann. §§17.500 to 17.540 (Lexis 2003 and Supp. 2007); La. Rev. Stat. Ann. §§15:540 to 15:549 (2005 and Supp. 2008); Me. Rev. Stat. Ann., Tit. 34–A, §§11201 to 11204, 11221 to 11228 (2007 Supp. Pamphlet); Md. Crim. Proc. Code Ann. §§11–701 to 11–721 (Lexis 2001 and Supp. 2007); Mass. Gen. Laws, ch. 6, §§178D to 178T (West 2006 and Supp. 2008); Mich. Comp. Laws §§28.721 to 28.731 (West 2004 and Supp. 2008); Minn. Stat. Ann. §243.166 (West 2003 and Supp. 2008); Miss. Code Ann. §§45–33–21 to 45–33–59 (West 1999 and Supp. 2007); Mo. Rev. Stat. §§589.400 to 589.425 (2003 and Supp. 2008), §211.45 (2004); Mont. Code Ann. §§46–23–501 to 46–23–507 (2007); Neb. Rev. Stat. §§29–4001 to 29–4013 (2003 and Supp. 2007); Nev. Rev. Stat. §§179B.010 to 179B.250 (2007); N. H. Rev. Stat. Ann. §§651–B:1 to 651–B:7 (West 2007 and Supp. 2007); N. J. Stat. Ann. §§2C:7–1 to 2C:7–20 (West 2005 and Supp. 2008); N. M. Stat. Ann. §§29–11A–1 to 29–11A–8 (2004 and Supp. 2008); N. Y. Correc. Law Ann., Art. 6–C, §§168 to 168–V (West 2003 andSupp. 2008); N. C. Gen. Stat. Ann. §§14–208.5 to 14–208.26 (Lexis 2007); N. D. Cent. Code Ann. §12.1–32–15 (Lexis 1997 and Supp. 2007); Ohio Rev. Code Ann. §§2950.01 to 2950.11 (West 2006 and Supp. 2008); Okla. Stat., Tit. 57, §§581 to 585 (West 2001), Tit. 57, §§591 to 594 (West 2007 Supp.); Ore. Rev. Stat. §§181.585 to 181.606, 181.826 (2007); 42 Pa. Cons. Stat. §§9791 to 9799.9 (2006); R. I. Gen. Laws §§11–37.1–1 to 11–37.1–12 (2002 and Supp. 2007); S. C. Code Ann. §§23–3–430 to 23–3–490 (2007 and Supp. 2007); S. D. Codified Laws §§22–24B–1 to 22–24B–15 (2006 and Supp. 2008); Tenn. Code Ann. §§40–39–201 to 40–39–212 (2006 and Supp. 2007); Tex. Crim. Proc. Code Ann., Arts. 62.001 to 62.002, 62.051 to 62.059 (Vernon 2006 and Supp. 2008); Utah Code Ann. §77–27–21.5 (2003 and 2008 Supp.); Vt. Stat. Ann., Tit. 13, §§5401 to 5414 (1998 and Supp. 2007); Va. Code Ann. §§9.1–900 to 9.1–921 (2006 and Supp. 2007); Wash. Rev. Code §§4.24.550, 9A.44.130, 9A.44.140, 10.01.200, 70.48.470, 72.09.830 (2006); W. Va. Code Ann. §§15–12–1 to 15–12–10 (Lexis 2004 and Supp. 2007); Wis. Stat. §§301.45 to 301.48 (2005 and Supp. 2007); Wyo. Stat. Ann. §§7–19–301 to 7–19–307 (2005).
3 The Chief Justice wrongly asserts that the differences between the Wetterling Act and SORNA are “insignificant.” Ante, at 2 (opinion concurring in judgment). SORNA increases the federal penalty for fail-ing to register from a misdemeanor punishable by no more than one year to a felony punishable by up to 10 years for a first offense. Compare 18 U. S. C. §2250(a) with 42 U. S. C. §14072(i) (2000 ed.). It is simply incorrect to minimize that change by saying that Kebodeaux received only a day more than he could have received for failing to register under the Wetterling Act. Ante, at 2 (Roberts, C. J., concurring in judgment). The “legally prescribed range is the penalty affixed to the crime,” Alleyne v. United States, ante, at 11, and SORNA increased that range significantly. SORNA also requires that a sex offender who moves update his registration within three days of moving, instead of seven. Compare 42 U. S. C. §16913(c) with App. to Pet. for Cert. 167a–168a. Thus, a person can be convicted under SORNA for conduct that would have complied with the Wetterling Act.
4 The Chief Justice contends that Congress has authority to impose registration as a consequence of Kebodeaux’s conviction because “[a] servicemember will be less likely to violate a relevant military regulation if he knows that, having done so, he will be required to register as a sex offender years into the future.” Ante, at 2. But SORNA could not possibly have deterred Kebodeaux from violating any military regulation because it was enacted after he left the military. Justice Alito contends that, by trying members of the military in a military court, Congress exacerbated “the possibility that a convicted sex offender may escape [the state] registration [system],” and that SORNA is necessary and proper to correct this problem. Ante, at 3 (opinion concurring in judgment). But Justice Alito has not identified any enumerated power that gives Congress authority to address this supposed problem, and there is no evidence that such a problem exists. Indeed, Texas has indicated that SORNA undermines its registration system, rather than making it more effective. See Letter from Jeffrey S. Boyd, General Counsel and Acting Chief of Staff, Texas Office of the Governor, to Linda Baldwin, Director, SMART Office 1 (Aug. 17, 2011) (“Although we in Texas certainly appreciate and agree with the stated goals of SORNA, the adoption of this ‘one-size-fits-all’ federal legislation in Texas would in fact undermine the accomplishment of those objectives in Texas, just as it would in most other states”), onlineat http://www.ncleg.net/documentsites/committees/JLOCJPS/October%2013,%202011%20Meeting/RD_SORNA_General_Information_2011-10-13.pdf (as visited June 21, 2013, and available in Clerk of Court’s case file).
SUPREME COURT OF THE UNITED STATES
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 Scalia, dissenting.
I join Parts I, II, and III–B of Justice Thomas’s dissent. I do not join Part III–A because I do not agree that what is necessary and proper to enforce a statute validly enacted pursuant to an enumerated power is not itself necessary and proper to the execution of an enumerated power. It is my view that if “Congress has the authority” to act, then it also “ ‘possesses every power needed’ ” to make that action “ ‘effective.’ ” Gonzales v. Raich, 545 U. S. 1, 36 (2005) (Scalia, J., concurring in judgment) (quoting United States v. Wrightwood Dairy Co., 315 U. S. 110 –119 (1942)). If I thought that SORNA’s registration requirement were “ ‘reasonably adapted,’ ” Raich, supra, at 37, to carrying into execution some other, valid enactment, I would sustain it.
But it is not. The lynchpin of the Court’s reasoning is that Kebodeaux was “subject to a federal registration requirement”—the Wetterling Act—at the time of his offense, and so the Necessary and Proper Clause “authorized Congress to modify the requirement as in SORNA and to apply the modified requirement to Kebodeaux.” Ante, at 6. That does not establish, however, that the Wetterling Act’s registration requirement was itself a valid exercise of any federal power, or that SORNA is designed to carry the Wetterling Act into execution. The former proposition is dubious, the latter obviously untrue.
SUPREME COURT OF THE UNITED STATES
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 Alito, concurring in the judgment.
I concur in the judgment solely on the ground that the registration requirement at issue is necessary and proper to execute Congress’ power “[t]o make Rules for the Government and Regulation of the land and naval Forces.” U. S. Const., Art. I, §8, cl. 14. Exercising this power, Congress has enacted provisions of the Uniform Code of Military Justice (UCMJ) that authorize members of the military to be tried before a military tribunal, rather than a state court, for ordinary criminal offenses, including sex crimes, that are committed both within and outside the boundaries of a military installation. See, e.g., UCMJ Art. 2 (persons subject to UCMJ); Art. 5 (“This chapter applies in all places”); Art. 120 (rape by a person subject to UCMJ); Solorio v. United States, 483 U. S. 435 –438 (1987) (servicemember may be court-martialed for off-base crime without “service connection”). States usually have concurrent jurisdiction over such crimes when they are committed off base and sometimes possess jurisdiction over such offenses when committed on base. 1 These offenses, however, are rarely prosecuted in both a military and a state court, and therefore when a servicemember is court-martialed for a sex offense over which the State had jurisdiction, this is usually because the State has deferred to the military. 2 Where the offense in question is a sex crime, a consequence of this handling of the case is that the offender, if convicted, may fall through the cracks of a state registration system. For example, if the servicemember is convicted of a sex offense in a state court, the state court may be required by state law to provide that information to the state registry. See, e.g., Colo. Rev. Stat. Ann. §16–22–104(1)(a)(I) (2012). State law may also require the state corrections department to notify both state and local police of the offender’s release. See, e.g., §16–22–107(3). Provisions such as these are designed to prevent sex offenders from avoiding registration, as many have in the past. See H. R. Rep. No. 109–218, pt. 1, p. 26 (2005) (despite pre-SORNA registration efforts, “[t]he most significant enforcement issue in the sex offender program [was] that over 100,000 sex offenders, or nearly one-fifth in the Nation are ‘missing,’ meaning that they have not complied with sex offender registration requirements”). When a servicemember is convicted by a military tribunal, however, the State has no authority to require that tribunal to notify the state registry, nor does it have the authority to require the officials at a military prison to notify state or local police when the servicemember is released from custody. Because the exercise of military jurisdiction may have this effect—in other words, may create a gap in the laws intended to maximize the registration of sex offenders—it is necessary and proper for Congress to require the registration of members of the military who are convicted of a qualifying sex offense in a military court. When Congress, in validly exercising a power expressly conferred by the Constitution, creates or exacerbates a dangerous situation (here, the possibility that a convicted sex offender may escape registration), Congress has the power to try to eliminate or at least diminish that danger. See United States v. Comstock, 560 U. S. 126 –158 (2010) (Alito, J., concurring in judgment). I accordingly concur in the judgment only.
1 See 1 F. Gilligan & F. Lederer, Court-Martial Procedure §2–40.00, p. 2–47 (3d ed. 2006) (hereinafter Gilligan & Lederer). This depends on the circumstances under which the Federal Government acquires the land in question. See Morrison, State Property Tax Implications for Military Privatized Family Housing Program, 56 Air Force L. Rev. 261, 269–270 (2005). See generally Manual for Courts-Martial, United States, Rule for Court-Martial 201(d)(3) (2012) (Rule) (discussing situations “[w]here an act or omission is subject to trial by court-martial and by one or more civil tribunals”); D. Schlueter, Military Criminal Justice: Practice & Procedure §4–12(A), p. 231 (8th ed. 2012) (hereinafter Schlueter).
2 “Where an act or omission is subject to trial by court-martial and by one or more civil tribunals,” “the determination which nation, state, or agency will exercise jurisdiction is a matter for the nations, states, and agencies concerned, and is not a right of the suspect or accused.” Rule 201(d)(3). And as the commentary to Rule 201(d) explains, “the determination which agency shall exercise jurisdiction should normally be made through consultation or prior agreement between appropriate military officials . . . and appropriate civilian authorities.” See Discussion following Rule 201(d), p. 2–10; see also Secretary of Air Force, Air Force Instruction 51–201, §§2.6.1–2.6.3 (June 6, 2013); Schlueter§4-12(B), at 231–232. “[I]t is constitutionally permissible to try a personby court-martial and by a State court for the same act,” Discussion following Rule 201(d), at 2–10; see Schlueter §4–12(B), at 232, §13–3(F), at 691; however, “as a matter of policy a person who is pending trial or has been tried by a State court should not ordinarily be triedby court-martial for the same act,” Discussion following Rule 201(d), at 2–10; Air Force Instruction 51–201, §§2.6.1, 2.6.2; Gilligan & Lederer §7–50.00, at 7–17.
SUPREME COURT OF THE UNITED STATES
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]
Chief Justice Roberts, concurring in the judgment.
I agree with the Court that Congress had the power, under the Military Regulation and Necessary and Proper Clauses of Article I, to require Anthony Kebodeaux to register as a sex offender. The majority, having established that premise and thus resolved the case before us, nevertheless goes on to discuss the general public safety benefits of the registration requirement. Ante, at 8–10. Because that analysis is beside the point in this case, I concur in the judgment only.
While serving in the Air Force, Kebodeaux violated the Uniform Code of Military Justice by having sexual relations with a minor. A special court-martial convicted him. As relevant here, that conviction had two consequences: First, Kebodeaux was sentenced to confinement for three months. And second, as the majority describes, he was required to register as a sex offender with the State in which he resided and keep that registration current; failure to do so would subject him to federal criminal penalties. Ante, at 4–6.
In the same way that Congress undoubtedly had the authority to impose the first consequence for a violation of military rules, it also had the authority to impose the second. The Constitution gives Congress the power “[t]o make Rules for the Government and Regulation of the land and naval Forces.” Art. I, §8, cl. 14. And, under the Necessary and Proper Clause, Congress can give those rules force by imposing consequences on members of the military who disobey them. See McCulloch v. Maryland, 4 Wheat. 316, 416 (1819) (“All admit that the government may, legitimately, punish any violation of its laws; and yet, this is not among the enumerated powers of Congress.”). A servicemember will be less likely to violate a relevant military regulation if he knows that, having done so, he will be required to register as a sex offender years into the future.
It is this power, the power to regulate the conduct of members of the military by imposing consequences for their violations of military law, that supports application of the federal registration obligation to Kebodeaux. As the Court explains, the Wetterling Act was in force when Kebodeaux committed the original offense, and applied to him as soon as the special court-martial rendered its verdict. See ante, at 5–6. Congress later, in enacting the Sex Offender Registration and Notification Act (SORNA), modified the registration regime in place under the Wetterling Act. But as applied to Kebodeaux here (the relevant inquiry in this as-applied challenge), those changes were insignificant; their only effect was that Kebodeaux received a day more than he could have received for the same conduct had the Wetterling Act remained in force. See ante, at 11 (describing SORNA’s effect on Kebodeaux’s registration obligations); compare post, at 10, n. 3 (Thomas, J., dissenting) (discussing changes that did not affect Kebodeaux). Whatever other constitutional concerns might attach to such a change, as a question of Article I power it was permissible. Just as the Federal Government may, under the Necessary and Proper Clause, alter the conditions of a federal prisoner’s confinement or adjust the timing and location of drug tests required of a federal convict, so too could it make slight modifications to a previously imposed registration obligation.
The majority says, more or less, the same thing. Ante, at 8, 11–12. But sandwiched between its discussion of the basis for Congress’s power and its discussion of the inconsequential nature of the changes is a discussion of benefits from the registration system. Along with giving force to military regulations, the majority notes, Congress could also have “reasonably conclude[d] that registration requirements . . . help protect the public from . . . federal sex offenders and alleviate public safety concerns.” Ante, at 8.
Maybe so, but those consequences of the registration requirement are irrelevant for our purposes. Public safety benefits are neither necessary nor sufficient to a proper exercise of the power to regulate the military. What matters—all that matters—is that Congress could have rationally determined that “mak[ing] the civil registration requirement at issue here a consequence of Kebodeaux’s offense” would give force to the Uniform Code of Military Justice adopted pursuant to Congress’s power to regulate the Armed Forces. Ibid.
Ordinarily such surplusage might not warrant a separate writing. Here, however, I worry that incautious readers will think they have found in the majority opinion something they would not find in either the Constitution or any prior decision of ours: a federal police power. The danger of such confusion is heightened by the fact the Solicitor General adopted something very close to the police power argument, contending that “the federal government has greater ties to former federal sex offenders than it does to other members of the general public,” and can therefore impose restrictions on them even years after their unconditional release simply to “serve[ ] . . . public-protection purposes.” Brief for United States 34–35.
I write separately to stress not only that a federal police power is immaterial to the result in this case, but also that such a power could not be material to the result in this case—because it does not exist. See United States v. Morrison, 529 U. S. 598 –619 (2000) (“ ‘[W]e always have rejected readings of . . . the scope of federal power that would permit Congress to exercise a police power’ ” (quoting United States v. Lopez, 514 U. S. 549 –585 (1995) (Thomas, J., concurring))).
Our resistance to congressional assertions of such a power has deep roots. From the first, we have recognized that “the powers of the government are limited, and that its limits are not to be transcended.” McCulloch, 4 Wheat., at 420–421. Thus, while the Necessary and Proper Clause authorizes congressional action “incidental to [an enumerated] power, and conducive to its beneficial exercise,” Chief Justice Marshall was emphatic that no “great substantive and independent power” can be “implied as incidental to other powers, or used as a means of executing them.” Id., at 418, 411; see also Gibbons v. Ogden, 9 Wheat. 1, 195 (1824) (“The enumeration presupposes something not enumerated”).
It is difficult to imagine a clearer example of such a “great substantive and independent power” than the power to “help protect the public . . . and alleviate public safety concerns,” ante, at 8. I find it implausible to suppose—and impossible to support—that the Framers intended to confer such authority by implication rather than expression. A power of that magnitude vested in the Federal Government is not “consist[ent] with the letter and spirit of the constitution,” McCulloch, supra, at 421, and thus not a “proper [means] for carrying into Execution” the enumerated powers of the Federal Government, U. S. Const., Art. I, §8, cl. 18. See United States v. Comstock, 560 U. S. 126, 153 (2010) (Kennedy, J., concurring in judgment) (“It is of fundamental importance to consider whether essential attributes of state sovereignty are compromised by the assertion of federal power under the Necessary and Proper Clause”).
It makes no difference that the Federal Government would be policing people previously convicted of a federal crime—even a federal sex crime. The fact of a prior federal conviction, by itself, does not give Congress a freestanding, independent, and perpetual interest in protecting the public from the convict’s purely intrastate conduct.
But as I have said, I do not understand the majority’s opinion to be based on such a power. The connection to the Military Regulation Clause on which the majority relies, ante, at 8, is less attenuated, and the power it produces less substantial, than would be true of a federal police power over prior federal offenders; the power to threaten and impose particular obligations as a result of a violation of military law is not such a “great substantive and independent power” that the Framers’ failure to enumerate it must imply its absence.
Nevertheless, I fear that the majority’s discussion of the public-safety benefits of the registration requirement will be mistaken for an endorsement of the Solicitor General’s public-safety basis for the law. I accordingly concur in the judgment only.
ORAL ARGUMENT OF MICHAEL R. DREEBEN ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: We'll hear argument first this morning in Case 12-418, United States v. Kebodeaux.
Michael R. Dreeben: Mr. Chief Justice, and may it please the Court:
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.
The Fifth Circuit in this case applied a per se rule that once Respondent had completed his military sentence, Congress lost authority to apply a civil sanction for that violation of Federal law.
That per se rule is wrong.
Nothing in Article I prevents Congress from legislating retroactively with respect to civil remedies for past violations of Federal law.
The Ex Post Facto Clause, the Due Process Clause, and Article I analysis under the Necessary and Proper Clause all provide some degree of protection against retroactive provisions, but no per se rule bars Congress from applying sex offender registration requirements, which this Court has held to be civil remedies not barred by the Ex Post Facto Clause to past Federal criminal convictions.
Justice Sonia Sotomayor: What's the limit of that power?
How -- for any Federal conviction, whether it's related to sex offense or anything else, Congress could impose any kind of registration requirement?
Michael R. Dreeben: --Well, certainly, Justice Sotomayor--
Justice Sonia Sotomayor: Could it ask every convicted Federal felon to come in for a DNA test, because we know that people who have been convicted of a crime are more likely to be recidivists?
Michael R. Dreeben: --Well, Justice Sotomayor, there are independent constitutional limits both outside of Article I and within Article I that mean that I will answer your question no, it's not the case that my position today means there are no limits.
There are limits.
Justice Sonia Sotomayor: So what -- what is the limit?
Is it just safety?
It can't be just safety of the public, because you just said that it doesn't apply to recidivist Federal offenders, generally.
Michael R. Dreeben: --The -- the principal limitation on retroactive legislation is the Ex Post Facto Clause.
Indeed, there would have been no need for an Ex Post Facto Clause if the Fifth Circuit were correct.
Justice Sonia Sotomayor: I don't understand.
I just posited a civil registration for Federal offenders of any kind.
That's not ex post facto under your theory, so--
Michael R. Dreeben: So if -- if the Court agrees that it's not a punitive measure and it is a remedial measure--
Justice Sonia Sotomayor: --Well, I don't know if I agree with that, but accept -- accepting that hypothetical.
Michael R. Dreeben: --Well, if you don't agree with it, then you'll be going on the Ex Post Facto Clause, and you won't be getting to Article I.
Justice Sonia Sotomayor: No, you know, that's settled law.
Whether it's right or wrong is a different issue.
Michael R. Dreeben: It is settled law, and that means that sex offender registration provisions aren't punitive.
The question here is, are they within Article I.
And the Court in United States v. Comstock went through an elaborate Necessary and Proper Clause analysis--
Chief Justice John G. Roberts: Well, in Comstock, it was very different than the situation here, because the analysis was that the Federal Government basically was the source of the problem in incarcerating sex offenders away from the State so that no State felt an obligation to do something with the problem of their release.
You don't have anything of that sort here.
Michael R. Dreeben: --No.
This provision, Mr. Chief Justice, rests on a different analysis than Comstock.
In Comstock, the problem was caused by Federal custody that, as Your Honor has said, broke the relationship between the individual and some State that might take cognizance of him for purposes of sex offender civil commitment.
The basis for the statute in Comstock was that people in Federal custody, regardless of the nature of their prior convictions, might pose threats if released.
The basis for the statute in this case is not that the individual was in Federal custody.
Federal custody is irrelevant to it.
The basis for the statute in this case is that this is a sex offender in violation of Federal law, and Congress has the authority to impose, as was done in this case, criminal punishment, but it also has the authority to impose civil regulatory sanctions.
Justice Antonin Scalia: So I assume that applies to all Federal crimes, right?
Anyone convicted of any Federal crime can thereafter be subjected to whatever civil restraints Congress later decides are -- are a good idea in order to prevent that crime, that type of crime from reoccurring, right?
I mean, nothing peculiar here about sex crimes.
Any -- any crime Congress can later decide, you know, it would be a good idea if when -- when a person has committed, I don't know, crime with the use of a gun, we -- we impose retroactively all sorts of different civil limitations.
Michael R. Dreeben: Well, Justice Scalia, there is no per se rule in Article I that forbids retroactive civil regulations imposed on a Federal offender.
So the question--
Justice Antonin Scalia: No, no, that's not the point, that it's -- that it's retroactive.
The point is that it is not in execution of a Federal power.
Michael R. Dreeben: --Well, I think the whole point in this case is that it's retroactive, because there isn't any serious dispute that if somebody commits a Federal sex offense they can be placed on supervised release for life so--
Justice Antonin Scalia: That would be an execution of a Federal power--
Michael R. Dreeben: --Well, so is this.
Justice Antonin Scalia: --the power -- the power to prevent that crime and to punish it.
Michael R. Dreeben: Well, but Congress's power is not limited to preventing and punishing crimes through criminal law.
Except for a brief interlude under United States v. Halper where this Court viewed double jeopardy as precluding multiple criminal and civil sanctions, the Court has recognized that when someone violates Federal law they're exposed both to criminal punishment and to civil sanctions.
The criminal punishment has to comply with the Ex Post Facto Clause; the civil sanctions do not.
So what the--
Justice Antonin Scalia: But they have to be imposed simultaneously as -- as the punishment for the crime of which the individual has been convicted.
Here, the trial is over, the conviction is over, and then some years later the Federal Government decides, oh, it would be a good idea if people who have committed sex crimes are -- are subjected to these limitations.
That's quite different from imposing that simultaneously as -- as a punishment for the crime.
This is not a punishment for the crime, right?
Michael R. Dreeben: --That's precisely--
Justice Antonin Scalia: Yes.
Michael R. Dreeben: --what makes it a civil sanction.
But, Justice Scalia, Your Honor is presupposing that Congress can only react to a sex crime through the criminal law and that it must have those laws in place at the time of the punishment, and there is no such Article I precept.
Chief Justice John G. Roberts: So your argument depends in no way on the fact that he was convicted of a Federal offense or -- or incarcerated for that offense, nothing at all?
We're just here arguing about the retroactivity under -- whether they have the authority under Article I to impose punishment for not registering under State law?
Michael R. Dreeben: This case turns entirely on the fact that the defendant is a Federal offender.
The source of power in question was the power to regulate the armed forces.
This is an individual who committed a sex crime while in the armed forces.
And Congress's power to address that and to prescribe remedies for it both civil and criminal is entirely tied to the Federal nature of the offense.
Justice Samuel Alito: Well, we start out with the power under the Constitution to make rules to regulate the military and we end up with a registration requirement that applies to someone who's not in the military and perhaps is not even living anywhere near any military installation.
So what would be helpful for me is to start out with the constitutional provision, identify a purpose of that that is served by this civil registration that is imposed later, and trace this whole progress through the Necessary and Proper Clause.
Michael R. Dreeben: Justice Alito, I think the most helpful way to do that would be for me to progress through a series of examples that illustrate how protecting the public against a Federal sex offender is a legitimate aim under the Necessary and Proper Clause to implement the underlying constitutional authority.
Justice Samuel Alito: Yes.
Michael R. Dreeben: So start with a sex offender who commits a sex offense in the military, is tried, court-martialed and sentenced.
Subject to cruel and unusual punishment limitations, due process limitations, et cetera, that individual can be incarcerated, placed on supervised release potentially up to life.
A condition of supervised release, well-recognized and now mandated by Federal law, is that that individual register as a sex offender.
And the reason that that is tied to Federal law is that when an individual violates Federal law it is a legitimate purpose of Congress to protect the public against recidivism by that individual.
So that's the criminal example that I believe is undisputed.
Now, suppose that the Federal Government didn't actually get the sex offender while he was in the military.
It missed the crime, but later information comes to light still within the statute of limitations that shows that while this person was in the military they committed a sex offense.
This court in United States ex rel. Toth v. Quarles made clear that that individual can be tried in an Article III court for his criminal violation even though he's out of the military.
It's enforcing the rules that were impressed upon him at the time while he was in the military.
Now let me give a civil example and then I will bring it right back to this case.
Suppose that Congress concludes that sex offenses in the military are a very serious problem and that there are a lot of people who have escaped prosecution because of lax interest in pursuing those crimes.
And after a period of years, it sets up a board of inquiry and it says this board of inquiry is going to look into sex offenses that were committed at the time that people were in the military, even if they're out of the military, and we're going to subpoena people to testify, and if individuals are determined in a civil proceeding to have committed sex offenses they may have their military records revised, they may lose military benefits, and they may have other civil sanctions imposed upon them.
Justice Samuel Alito: When you say in a civil proceeding, you mean?
Michael R. Dreeben: Yes, noncriminal.
Justice Antonin Scalia: So it's just by a preponderance of the evidence we think this guy probably, you know, 51/49, committed a sex crime.
Michael R. Dreeben: Not going to be a criminal punishment that's imposed at the end of the day.
Justice Antonin Scalia: So just -- just more -- more likely than not is the test.
Michael R. Dreeben: That's an acceptable level of proof for the civil law.
And if Congress can do that in order to protect the integrity of the military and to promote confidence in the military, then it's a very small step, if any step at all, to SORNA.
Chief Justice John G. Roberts: Yes, but if they can do that.
But that's not what they've done here.
Your argument, as you told me a while ago, is linked to the Federal offense and the incarceration.
Michael R. Dreeben: Yes, absolute -- well, Mr. Chief Justice, it's not linked to the incarceration.
This is the difference between this case and Comstock, and this is why the Solicitor General's concession in Comstock on which the Fifth Circuit heavily relied has no applicability here.
In Comstock, it was irrelevant what offense the individual had been committed.
The problem was he was in Federal custody, he was sexually dangerous at the time he would be released.
Ties had been broken between him and the community, and if he were released it would pose a threat to public safety that the Federal Government had power to protect against.
Chief Justice John G. Roberts: Because the States were not doing anything about it.
Michael R. Dreeben: Right.
Chief Justice John G. Roberts: Here you have a situation where I think at the time every State dealt with the issue of whether the sex offenders should have to register or not.
Michael R. Dreeben: That's correct.
But Federal law did as well and Federal law provided encouragement.
This is actually a primary example of partnership between State governments and the Federal Government.
The Federal Government offers financial support, it offers logistical assistance, it offers tremendous resources of the U.S. marshals to track down sex offenders.
And as this Court said in Carr v. United States, it was entirely reasonable for Congress to have assigned a special responsibility for prosecuting Federal sex offenders who failed to register.
This was integral to this Court's reasoning in Carr, where the Court was confronted with two provisions of 2250, the criminal sex offense provision under SORNA.
For State offenders, there had to be travel in interstate commerce; for Federal offenders there didn't.
The Government argued that the provisions ought to be given as co-extensive a reach as possible so that the coverage of the statute would be equally comprehensive for both State and Federal.
And this Court--
Justice Anthony Kennedy: The discussion so far has assumed, your discussion primarily, that there's this line between civil and criminal, we don't need to worry about ex post facto.
Is that line made clear in our precedents or is there some room to argue that if the line is somewhat blurred that there may be ex post facto concerns here and that that in turn is a reason for constitutional avoidance when we evaluate your argument?
Is that -- is the civil -- a criminal distinction with reference to ex post facto clause absolutely foreclosed and clear in the facts of this case?
Michael R. Dreeben: --Yes, it is, I believe, Justice Kennedy.
In an opinion that you wrote for the Court, Smith v. Doe, which considered the retroactivity of Alaska's sex offender registration and notification provisions, which are similar but not identical, to the Federal provisions, the Court went through the established analysis to determine whether the legislature had intended a punitive effect and if it didn't, whether there was the clearest proof that it was punishment in purpose and effect.
Notwithstanding the legislature's intent, the Court upheld the retroactive applicability of sex offender registration and notification, making clear that it is not governed by the Ex Post Facto Clause.
Now, that's not to say that an individual couldn't argue that SORNA is different or an individual couldn't argue that the Due Process Clause makes it either irrational or substantively off limits to impose this kind of civil remedy.
The individual can also argue that running this through the Comstock factors, it's not reasonably adapted to fulfilling Congress's aim.
But what the Fifth Circuit did is apply a per se rule that it drew, I think, from the Solicitor General's statement in Comstock that once an individual got out of custody and was back in the control of the State and within its jurisdiction and population, then the Federal Government couldn't reach out and commit him as a sex offender.
And there are two main distinctions between that concession and this case.
The first is, as I've already alluded to, the Government's argument in Comstock was based on custody.
This case is based on the consequences of the conviction itself.
The second distinction is that committing somebody civilly is a massive intrusion on that individual's relationship with the State.
The individual has been brought within Federal custody; they have no relationship with the State anymore.
Whereas sex offender notification is far more accommodating of State interests.
Justice Sonia Sotomayor: Mr. Dreeben--
Justice Antonin Scalia: To -- to what does this civil -- civil-criminal line apply?
Suppose instead of a registration requirement, Congress just decided, you know, our past punishments for sex offenses have not been -- have not been severe enough, and so we are now going to impose a civil fine on all -- all persons who have been convicted in Federal court of sex crimes.
It's a civil -- it's a civil penalty, not a criminal penalty.
Michael R. Dreeben: It's not per se barred by Article I, Justice Scalia.
The question of whether it's constitutional is really a question of individual rights analysis and whether it passes through the necessary and proper gate under the considerations similar to what the Court looked at in Comstock.
Justice Antonin Scalia: I find that difficult to believe that--
Michael R. Dreeben: Well, there's no--
Justice Antonin Scalia: --that whether it's ex post facto and impermissible or not is simply eliminated, that issue was eliminated by simply calling it civil.
Michael R. Dreeben: --Well, it's not eliminated.
It still is available for an individual to argue, as Respondent did in this case in the district court but abandoned long before he got to the court of appeals, that it violates due process, that it violates ex post facto.
Justice Antonin Scalia: I'm talking about the -- ex post facto.
Michael R. Dreeben: He can argue that.
I submit that he will lose.
Justice Antonin Scalia: Because it's civil.
Michael R. Dreeben: If it in fact is civil and passes through this Court's analysis, then yes.
Justice Antonin Scalia: I -- I find that difficult to grasp.
Michael R. Dreeben: Well, it's actually quite well established as a principle of double jeopardy law in cases like Hudson v. United States and United States v. Ursery.
It's established in ex post facto law as a consequence of Smith v. Doe.
It's the foundation for deciding whether a proceeding requires preponderance of the evidence versus proof beyond a reasonable of doubt.
The Court has articulated this line in a variety of contexts.
Chief Justice John G. Roberts: Your argument based -- your argument based on Congress's authority with respect to the military, your Article I argument, and you say it doesn't make a difference that he's no longer in the military, does that -- do you come out differently if the basis for jurisdiction is asserted to be inter -- interstate commerce?
Michael R. Dreeben: No.
Chief Justice John G. Roberts: The fact that somebody at some time in their life traveled across State lines means that the Federal Government can go back, even though their activity that's challenged in the particular instance is only intrastate, and still assert jurisdiction over them?
Michael R. Dreeben: --Well, that would probably fail a Necessary and Proper Clause analysis, in which there has to be a showing that the measure is plainly adapted to furthering the underlying power.
This is not a difficult problem that the Court has never confronted before.
It has resulted in difficult permutations on particular facts, but the Court has always recognized that there is broad Necessary and Proper Clause authority subject to limits.
Justice Sonia Sotomayor: --As broad as that authority is, perhaps I'm going back to Justice Alito's question, which is if you put aside that it's part of the punishment because you say it's not part of the punishment, you want us not to look at it as punishment because otherwise you'd run into the ex post facto problem, you're saying we have a need today.
Outside of protecting the public from a recidivist, what's the interest?
Because that wasn't enough in Comstock.
We made it very clear that wasn't enough.
So if you take out all of the punishment aspects of this, which you should have done at the time he was sentenced and not now, what remains in terms of the Federal interest?
Michael R. Dreeben: --Justice Sotomayor--
Justice Sonia Sotomayor: What's promoted?
Michael R. Dreeben: --There is a sufficient Federal interest in protecting the public from someone who committed a Federal crime.
Supervised release essentially performs that function.
Justice Sonia Sotomayor: But that was -- why did we even bother going through anything in Comstock?
If that stands alone as a Federal interest, then anything we do at any point with respect to any person who's violated a Federal law would stand in the same shoes.
Michael R. Dreeben: It's a valid--
Justice Sonia Sotomayor: You could do whatever civil penalties you want for as long as you want.
We go back to my initial question and Justice--
Michael R. Dreeben: --Justice Sotomayor, really, the answer to your question is the same.
The answer to all of your questions is the same, which is that there is an analysis that the Court went through in Comstock where it took into consideration history, it took into consideration the nature of the fit between the purpose of Congress and the activity that it was regulated.
It took into account the degree to which the State interests were accommodated, and it took into account the degree of attenuation between the regulation and the underlying offense.
And it -- it didn't open up Congress to say any offense you've ever committed means Congress owns you for life, it can do whatever you want.
It has to pass through an analysis.
But the Fifth Circuit never conducted that analysis except for believing that once the individual had completed military service, once the individual had completed his criminal sentence, Congress lost all authority.
Chief Justice John G. Roberts: I'm getting confused between two different assertions of a Federal interest.
Earlier you talked about the integrity of the military forces.
They go back later, they think they should address the fact that people were engaging in criminal activities when in the military, they weren't -- they weren't found out, they weren't prosecuted.
Later on they can go back.
But then you say that the interest that's at issue here is preventing recidivism, and that doesn't seem to have anything to do with the integrity of the military force.
Michael R. Dreeben: Well, it does because when the criminal law finds someone who has violated Federal law, many of the purposes of the sanctions that are imposed on that individual are public protection purposes and anti-recidivism purposes.
Most of the things that are done on supervised release fulfill those purposes.
If those purposes were not validly connected to taking someone who's violated criminal law and imposing a suite of sanctions on them, then supervised release would apparently be beyond Congress's authority.
Justice Antonin Scalia: It -- it seems to me that when -- when you say that as your answer to the Chief Justice, you're -- you're no longer relying on -- on the power to regulate the military.
You're relying on -- on some general Federal power to protect citizens against people who have committed any Federal crimes.
And I -- I don't see that enumerated power in the Constitution.
Yes, I see a power to regulate the military, but your description, it has nothing to do with regulating the military.
It has to do with protecting the -- the public at large from people who have committed Federal crimes, military or not.
Michael R. Dreeben: As the Court has pointed out numerous times, including in Comstock, there is very little authority in the Constitution in an enumerated way for criminal law at all.
All of criminal law, with the exception of a handful of instances that are specified in the Constitution, comes in by virtue of the Necessary and Proper Clause.
Justice Antonin Scalia: That's right, because it protects Federal functions.
The Federal -- the criminal applicability to the armed forces protects the function of regulating the armed forces.
But how does protecting the public at large from people who have committed a crime in the armed forces, how does that have anything to do with regulating the armed forces.
Michael R. Dreeben: That is inherent in taking somebody who violated Federal law and imposing appropriate sanctions on them for that violation.
Justice Elena Kagan: Mr. Dreeben, it would help me in answering some of these questions if you went through the analysis on the assumption that this was instead a Commerce Clause case.
So take the military out of it; what would the necessary and proper analysis look like?
Michael R. Dreeben: It would look essentially the same, Justice Kagan.
Somebody who violates a Federal law that's premised on the Commerce Clause, say a sex offender who travels in interstate commerce with the intent to commit a sex offense, has placed himself within the regulatory authority of the Federal Government.
Now, that individual can be criminally prosecuted for that violation, and that violation furthers Congress's interests in regulating interstate commerce.
Congress could also decide, you know, for some of these sex offenders, criminal punishment is not the right approach.
The right approach is mandate sex offender rehabilitative counseling.
And it might discover that that's so effective for a class of offenders that it's going to apply that even to people whose offenses were committed before the law in question is passed.
It can't punish those people based on retroactive legislation, but it can reach them with a civil remedial measure so long as it passes through the Comstock-type analysis of the Necessary and Proper Clause.
Justice Ruth Bader Ginsburg: Mr. Dreeben, you say nothing about the -- what was the opening argument in -- in your brief, that the assumption that SORNA is something new added after is wrong because there were these predecessor laws that established a Federal requirement to register.
Michael R. Dreeben: Justice Ginsburg, I believe that the Fifth Circuit was wrong on that too.
As we describe in our brief, Title 42 Section 14072(i)(3) and (4) did, in our view, impose criminal punishment on Respondent for failing to register as a sex offender at the time he was in the military.
We think the Fifth Circuit was wrong on that statutory analysis, but, more fundamentally, the Fifth Circuit was wrong in thinking that it mattered whether he was under some sort of Federal criminal jurisdiction at the time that he was released from Federal custody.
And if I could reserve the rest of my time.
Chief Justice John G. Roberts: Thank you, Mr. Dreeben.
ORAL ARGUMENT OF M. CAROLYN FUENTES ON BEHALF OF THE RESPONDENT
M. Carolyn Fuentes: Yes.
Mr. Chief Justice, and may it please the Court:
The Government asks this Court to go beyond its holding in United States v. Comstock to allow the Federal Government to reach back, after a Federal sentence has expired, to bring back into Federal control a person who has returned to the authority of the State.
And I'm quite surprised to hear the Government say that this is not a Comstock analysis.
I'm not sure they stuck with that throughout the argument, but I think the Comstock factors are factors that this Court looks at quite frequently in doing any kind of a necessary and proper analysis.
Justice Sonia Sotomayor: Going back to -- to a prior question, are you challenging -- you didn't on appeal, but it seems as if you're accepting that the Federal Government has the power to impose this requirement as part of a Federal sentence.
M. Carolyn Fuentes: I think that's correct.
Justice Sonia Sotomayor: All right.
Are you -- if it's not part of a Federal sentence but part of release, it's not announced at the sentence but it's announced at the time the prisoner is put into supervised release or release from jail, do you think the Government has the power to impose it then?
M. Carolyn Fuentes: In this case, on these facts and based on the Federal statutes that exist today, the answer is yes.
And the illustration, I think, is the way that SORNA works today.
As the Government mentioned--
Justice Sonia Sotomayor: Well, SORNA today becomes part of the supervised relief terms.
M. Carolyn Fuentes: --Correct.
Justice Sonia Sotomayor: I'm not talking about SORNA today.
M. Carolyn Fuentes: Okay.
Justice Sonia Sotomayor: I'm talking about just any prisoner who has been in jail but it's not made, has not been paid, part of the punishment.
M. Carolyn Fuentes: I think the law permits a sentencing judge -- I'm not talking about Congress, but a sentencing judge -- to go back and impose additional conditions of supervised release.
Justice Sonia Sotomayor: I -- I don't know of that power, but do you have a statutory--
M. Carolyn Fuentes: It's 18 -- 18 United States Code Section 3583.
And 3583 permits the sentencing judge to change conditions of supervised release based on the factors that are considered important in sentencing in 18 United States Code Section 3583.
Justice Sonia Sotomayor: --All right.
So that power -- I guess then what the Government is saying, as I understand their argument, if you have the power to do it at that point, why can't you have the power to do it later?
M. Carolyn Fuentes: Well--
Justice Sonia Sotomayor: Are the same factors that compel permission for the Government to do it then?
M. Carolyn Fuentes: --It's because the way the statute works, even though it wasn't announced at sentence, supervised release is considered to be part of the sentence.
So if I understand the question correctly, the reason the court can go back and impose those conditions and possibly the reason that Congress can go back and do it is because those statutes that I've mentioned, 3583 and 3553, have given notice to the individual.
Justice Samuel Alito: We are not talking -- I'm sorry.
M. Carolyn Fuentes: That's all right.
Justice Samuel Alito: I didn't mean to interrupt your question.
M. Carolyn Fuentes: It's all right.
Justice Samuel Alito: We're not talking about statutory authorization.
We are talking about constitutional power.
So if we start out with the example of registration for life being imposed as part of supervised release, part of the criminal sentence, then we go to an example where it is not part of the criminal sentence but it is a civil requirement triggered by a separate civil proceeding for every Federal -- every person convicted of a sex offense under Federal law.
Now, if that were the setup statutorily, would that fall within Congress's power under Article I?
M. Carolyn Fuentes: I think not, but I want to qualify that because it depends on what powers Congress is relying on.
And let me give an example.
I know the Government was -- a lot of the Government's argument relies on this difference between criminal and civil consequences.
Justice Samuel Alito: Well, we know what -- and we know what power they are relying on.
Let's just look at the power that they're relying on here: It's the power to make rules for the regulation of the military.
So part of their -- in the exercise of their power to make rules for the regulation of the military, they impose a civil sex offender registration requirement for someone convicted of a sex offense under the Uniform Code of Military Justice.
That does not, in your judgment, fall within Article I?
M. Carolyn Fuentes: It does if the person is still in the military or if he has been -- or if he has committed a criminal offense and the prosecutorial power, the Federal power to prosecute him for that offense, has not been exhausted, yes, that can be done.
Justice Elena Kagan: How about if he is on supervised release?
He is not in the military, but his entire sentence has not been completed.
M. Carolyn Fuentes: I think if he is still being supervised by the military, then I think it's likely that power exists.
Justice Stephen G. Breyer: Okay.
Then why not this?
M. Carolyn Fuentes: Because Mr. Kebodeaux was not on supervised release.
Justice Stephen G. Breyer: Well -- why not?
I mean, look, this is -- Thomas Reed Powell once said,
"If you can think of a thing that is inextricably related to another thing without thinking of the other thing, then you have the legal mind. "
and that seems to be this case.
M. Carolyn Fuentes: Yes, but--
Justice Stephen G. Breyer: So somehow I have to get out of my mind the ex post facto part, the potential violation of due process part, the equal protection part, take that aside.
Now I've got to just think about whether it has, the Congress has the power under the provision that Justice Alito said.
I'm trying to do that, and I've dissented in other cases on other grounds.
But in -- in just trying to do that, I think, well, the military, suppose they found a certain number of -- of individuals, men or women, have unfortunate problems in the military.
They discover there is a mental illness problem; the person's out of the military.
But the law says you can go and tell the local mental health authorities about this person even though he's no longer there.
And suppose the person had a criminal problem in the military and was in prison and suppose the law said, you know, you're the ones who got the situation where he unfortunately got into that problem, and you, later on, can -- can go and tell authorities about his problems so they can take appropriate action.
Now, if they can do that, why can't they have the power under Article I to say really, you all have to register.
Now, maybe there are other things, but you got this problem in the military.
You were convicted in the military.
You did it in the military.
We turned you loose and there you are, and we want, as part of our military regulation, to be able to tell authorities about you and to make you register according to State law.
Now, no due process problem; I have to assume that away.
No punishment, bad punishment problem, none of those.
But it's a power, all right?
M. Carolyn Fuentes: --Well, the power can't go to both of the examples that you've given.
I don't see any problem with them giving notice.
That does not impose a Federal obligation on an individual.
So there is no power being exerted on the individual.
They can have a public -- a public protection purpose and they can tell -- tell authorities who need to deal with the individual, and those authorities may have the power through State power--
Justice Stephen G. Breyer: Where you're leading me, because I'm not so worried about this case, but where you're leading me is down in Commerce Clause cases and all kinds of other cases, suddenly a distinction arises that Congress can, in fact, do all kinds of things having Federal authorities do this and that, but you couldn't make someone in a State -- you know, you can imagine a few that are coming into my mind -- and so what I'm worried about is following this distinction into other areas.
M. Carolyn Fuentes: --I don't think that is a problem, and I think the reason is I disagree fundamentally with the Government.
I think necessary and proper analysis is important in each case and it does bear similarities in each case.
But depending on the power being relied upon, the analysis can be quite different.
Commerce Clause is a very broad power.
I can't say whether this sort of thing, depending on the Commerce Clause, would be right or would be wrong.
Look at the power to make a uniform rule of naturalization.
Justice Samuel Alito: Well, let me -- let me try this chain of reasoning out on you and -- and get your reaction.
We're starting out with the power of Congress to make rules for the regulation of the military.
And one of the things that they want to do in making those rules is to make military installations acceptable to the local communities where they are located.
They know from experience, for example, it's happened in Okinawa, that when have you military personnel who go -- who commit sex offenses with people off base, it can cause tremendous opposition.
And this is what happened here; not the opposition, but an offense involving a 15-year-old girl who lived off the base.
So in order to ensure that there -- we don't have excessive civilian opposition to the location of military bases, we are going to do a number of things.
One thing is we're going to criminally prosecute members of the military who commit these offenses.
This will deter; this will incapacitate.
But also, to provide further assurance to the community that these people are not going to be dangerous, we are going to require them to register.
Now, maybe that's too attenuated, but I'd like to get your reaction.
Why could Congress not do that under the Necessary and Proper Clause?
M. Carolyn Fuentes: Well, I think while that person is still within the criminal jurisdiction, or any Federal jurisdiction, it could be done.
I think that once that jurisdiction has been exhausted, once the criminal prosecution power has been exhausted, once the person has returned to the authority of the State, and I think that analysis is important always.
Justice Antonin Scalia: You don't have to go that far though to -- to distinguish the example that Justice Alito just gave.
This is not a statute which only requires him to registrate -- to register if he hangs around the military installation.
This requires him to registrate anywhere, you know, in the -- in the wilds of Alaska where -- it's just not this case.
And even -- even if you would allow that, and say it is a reasonable -- it has a reasonable connection to the power to regulate the military, to say wherever he goes he has to register is -- is a different question, isn't it?
M. Carolyn Fuentes: I think it may well be.
Justice Stephen G. Breyer: But yet, now that's exactly the problem for me, because the -- the wilds of Alaska you think I think, and I think I think, that -- that sure, if there's a post office there -- there's a post office there, then what -- the military is all right, they can mail a letter to the -- to be delivered to the local doctor to say, look, he has a problem.
That seems to be okay.
But you say it's not going to be okay to tell him he has to go and make that registration.
At that point what you've done is like Madison.
I mean, it's an interpretation of the Commerce Clause that I think Madison might have wanted, which is you're reading a lack of power because of a civil rights problem.
I mean, it's -- the difference between the two cases is really not the need because we have to assume the need.
The difference is the restriction on the individual.
And it's that part that I'm suddenly worried about the Commerce Clause and every power in Article I being read with exceptions in the civil rights area even though we have the amendments to protect the civil rights problems.
M. Carolyn Fuentes: I haven't thought of it that way and that really isn't the argument that I'm making.
I think that the military has jurisdiction.
It's gotten information about this individual when it had power over him and they can talk to whomever they care to about him, or whether--
Justice Antonin Scalia: We've never -- we've never held, have we, that what the Federal Government can itself do under the Necessary and Proper Clause it can impose upon individuals to do under the Necessary and Proper Clause?
Aren't there two different -- what is necessary and proper for the Federal Government itself to do is not necessarily necessary and proper for the Federal Government to require private individuals to do.
M. Carolyn Fuentes: --I absolutely agree with that.
And I think that this goes back to something that the Government -- well, it gives me an opportunity to address something the Government has said about the Fifth Circuit's opinion.
That it is a per se rule, and that is just incorrect.
I -- I have to disagree with that.
And I have to disagree with it because the -- everything the Fifth Circuit said was limited by these facts.
These facts are what controls the case.
And the Fifth Circuit took great care to make a very narrow ruling.
And that ruling, the Fifth Circuit said, is that it's unconstitutional, SORNA's requirements, as applied to Mr. Kebodeaux and others like him.
It has no effect on Congress's ability to impose conditions on a prisoner's release from custody or on Congress's ability to effect the registration requirements for anyone who has been convicted after SORNA's enactment.
So really, it is not a per se rule.
It is a rule, maybe you call it per se as it -- as it affects people in Mr. Kebodeaux's position, but I think that is very different from what the Government is arguing.
Justice Elena Kagan: I guess, Ms. Fuentes, what I don't quite understand about the argument, this goes back to Justice Alito's original question.
You seem to say that if this -- if Congress passed a civil statute like this one within the time that Mr. Kebodeaux was in custody or within the time that he was under supervised release, that that would be appropriate.
But I guess what I don't get is why the Federal interests change, whether it's the day before he gets out of supervised release or the day after he gets out of supervised release.
What in the Federal interests shift based on that?
M. Carolyn Fuentes: I'll answer that question first, then come back to another.
It's not a question, I don't think, of Federal interest.
It's a question of Federal power.
And you have to look at the individual power being exercised.
And so the way I look at it is what's the difference if the Federal Government makes a rule for a person in the military before -- when he's in the military or after he gets out of the military?
That's all the difference in the world.
In -- in -- that's our argument.
That is all the difference in the world.
Justice Elena Kagan: Well, I wasn't assuming that he was in the military while he was on supervised release.
M. Carolyn Fuentes: I'm sorry.
I didn't hear.
Justice Elena Kagan: I was assuming that he was out of the military in both these cases, but that you said while he was still serving his sentence, it would be appropriate for Congress to add this additional thing, but not after.
M. Carolyn Fuentes: I think--
Justice Elena Kagan: In both cases, he's not in the military anymore.
M. Carolyn Fuentes: --Constitutionally, it -- it can be all right constitutionally, depending on the statutory procedures that govern it.
And the way that the Federal law operates now, the statutes that I mentioned, 3583 and 3553, the way those statutes -- statutes operate is they -- they give someone notice that their conditions of supervised release can be -- can be changed.
And so there isn't an ex post facto problem with that.
And there isn't a power problem with that, because the criminal -- the power to make the criminal offense and punish it still exists while that person is on supervised release.
It has expired with respect to Mr. Kebodeaux, and I think that is one of the most important points in this case, and it goes along with the Comstock analysis.
Justice Samuel Alito: Is it your argument that Congress lacks the power to impose supervised release after the date when the person leaves the military?
M. Carolyn Fuentes: No.
After the criminal sentence is served.
Maybe I didn't understand the question.
Justice Samuel Alito: Someone is sentenced to prison--
M. Carolyn Fuentes: Right.
Justice Samuel Alito: --under the UCMJ, released, dishonorably discharged from the military.
Can Congress say the person has to remain on supervised release for a longer period of time after he is returned to civilian status?
M. Carolyn Fuentes: Not if -- not unless it was -- that provision was imposed as part of the sentence or while he was still within the Federal power, before the Federal criminal jurisdiction expires.
Justice Samuel Alito: See, I understand -- I can understand why that might create -- that might raise all sorts of constitutional arguments about notice and so forth.
But I don't see how that -- how that connects with the question whether Congress has the power to do it under -- under Article I--
M. Carolyn Fuentes: Well, I'm not sure--
Justice Samuel Alito: --under the power to regulate the military.
M. Carolyn Fuentes: --Yes.
I'm not sure I'm answering the question correctly, but that power doesn't last forever.
The powers -- there are some powers in the Constitution which may last longer than others, and the example I raised before was the rule of making uniform naturalization.
That's a broader power, I think, than the military power.
And we see that in the cases the Government's mentioned and we've mentioned, the Toth case and the Kinsella case.
Justice Samuel Alito: Well, you could be making the argument that the power to make rules for the military applies only to people who are in the military, and that once you're out of the military that power does not permit Congress to do anything special to you.
But you're not making that argument, I gather.
M. Carolyn Fuentes: No.
No, I'm not making that argument.
And again, it goes to the individual facts and the power asserted and the way the power operates always makes a difference.
The example that the Government gave with that board of inquiry and being able to bring people back in, I find that whole scenario very questionable.
But there -- there were people who were -- were receiving military benefits, if I understood it.
Justice Sonia Sotomayor: How would you write this opinion if you wanted to protect against what Justice Breyer was concerned about, constricting the Commerce Clause, which has been since Madison more broadly defined than he did, or Justice Alito's example of ensuring that you're not closing off other things that can be done after someone leaves, that might be related to, like punishing a crime that you find out about afterwards.
How would you write this opinion?
M. Carolyn Fuentes: Just the way the Fifth Circuit did in its en banc opinion.
Justice Sonia Sotomayor: Well, it wasn't really helpful, because it -- it doesn't give us a limiting principle like -- I don't know if it's possible -- that if you're relying on just recidivism, Congress has to have an independent basis, a power for the imposition of -- of criminal or civil sanctions on someone.
M. Carolyn Fuentes: I'm not certain an opinion like that could be written.
I think that the limits, the limitations that exist, are on the narrowness of the way the opinion is written.
But future cases I don't think can be decided that way.
Certainly, principles can be articulated which help to limit.
And I think the -- the best you can say in terms of limiting principles is it's going to depend on the enumerated power upon which the government relies to impose this obligation.
Chief Justice John G. Roberts: Well, how -- I'm not sure that makes much sense.
You're saying if they're relying on the enumerated power with respect to the military, they can do more than if they're relying on the enumerated power over interstate commerce?
M. Carolyn Fuentes: No.
And if that's your understanding--
Chief Justice John G. Roberts: So in what sense--
M. Carolyn Fuentes: --I -- I apologize.
I did not mean that.
Chief Justice John G. Roberts: --Well, in what sense does it then depend on which enumerated power they're invoking?
M. Carolyn Fuentes: Well, let -- let me give an example that goes to the collateral consequence cases that the Government raised.
The Government raises, for example, the Hudson case, where a person who is convicted of bank fraud both can be punished criminally and then can be debarred civilly from participating any more with Federal Government contracts.
I think the words that were used in the Hudson case were
"no longer may have business doings with an insured bank. "
Okay, that has to be, I think, the spending power.
The Government can decide with whom it wants to do business.
If it's dealing with an insured bank, then it can impose that civil consequence.
And it can do it -- I don't want to use the word “ independently ” of.
They may do it by reason of the criminal conviction, but there is an independent power to do it.
That power doesn't exist here, and so it would have to be--
Chief Justice John G. Roberts: They say -- they say it exists by virtue of the enumerated power to regulate the military forces.
M. Carolyn Fuentes: --Well, I don't think it does.
Perhaps I don't understand the--
Chief Justice John G. Roberts: Well, I'm trying to see why you're saying the enumerated power under the Spending Clause allows them to take this subsequent action, but the enumerated power under the Military Clause does not.
M. Carolyn Fuentes: --Well, because the -- I'm sorry.
Chief Justice John G. Roberts: I would have thought that if you're arguing under the Necessary and Proper Clause, that you need an enumerated power that the Necessary and Proper Clause is going to serve.
But I don't see how it makes a difference which enumerated power you're talking about.
M. Carolyn Fuentes: I think it all -- I think it does turn on the nature of the power.
I mean, could you use the military power to say you, Mr. Bank Fraud Client, cannot contract with the Government any more?
Chief Justice John G. Roberts: I get to ask the questions.
M. Carolyn Fuentes: Sorry.
You are so correct on that.
Justice Stephen G. Breyer: No, but it's the military -- look, it's the military that they are mostly -- that they're relying on.
M. Carolyn Fuentes: Yes.
Justice Stephen G. Breyer: So they say -- I mean, the famous statement -- I looked it up --
"Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate and not forbidden are -- fall within the Necessary and Proper Clause. "
The end is to protect the communities from those individuals in respect to those matters that they became dangerous with when they were in the military; okay?
That's the end.
And is the means appropriate?
They say yes.
They say, after all, the means here is, notify them when we're -- you're moving around.
And therefore, is it forbidden?
Well, we're not supposed to consider that part, but -- so leave that out.
But the -- the others, they say is okay.
So that's the basic.
Do you think maybe we should send this back to the -- to the Fifth Circuit?
The Government suggests that--
M. Carolyn Fuentes: --Well--
Justice Stephen G. Breyer: --because they didn't get it right in respect to what the previous statutes require.
What about all that?
M. Carolyn Fuentes: --Well, the Fifth Circuit did get it right with respect to the previous statute.
And the reason that the Government wants to send it back is because they say that the Fifth Circuit relied on the fact that Mr. Kebodeaux was unconditionally released.
And as a matter of fact, he was unconditionally released.
But they equate unconditional release with release free from a registration requirement.
We have gone over that in great length in our brief.
The Government is simply wrong about that, for the reasons that we state in our brief.
And I can go into those, if you want, if you'd like.
Justice Stephen G. Breyer: I just want to know what to do if I end up thinking they are right.
M. Carolyn Fuentes: Yes.
Justice Stephen G. Breyer: What's your recommendation there on that assumption?
I'm not saying I would, but I'm just saying on that assumption.
M. Carolyn Fuentes: --I -- I guess it depends on which assumption.
The Fifth Circuit would not have changed its opinion in this case because Mr. Kebodeaux, as a matter of fact, whether the Government agrees or not, was not released on condition that he comply with sex offender registration requirements.
You can see the difference between Mr. Kebodeaux's release and the release of a person who is released on conditions that he comply with requirements, and that is in 35--
Justice Sonia Sotomayor: Your argument is he was released on condition of State registration.
Isn't your argument dependent only on that there was no Federal registration requirement?
M. Carolyn Fuentes: --No.
It is dependent on whether that release was conditioned on his registration, and it wasn't.
Today, when a person is released from custody on supervised release, it is a condition of that release under 3583 that he comply with sex offender registration requirements.
What happens if he doesn't comply?
He can go back to prison on the original conviction, because he was released on condition that he comply with Federal sex offender requirements.
It just goes to -- to the judge.
It's by preponderance of the evidence.
That is not what happened here.
Mr. Kebodeaux was released, not on any conditions.
Now, the State may have imposed an independent obligation to register, but that was not a condition of his release.
And so it is not the case, as a matter of fact, that he was released on condition.
Justice Sonia Sotomayor: The bottom line is you don't think the Wetterling Act applied to him.
Is that your point?
M. Carolyn Fuentes: I'm sorry?
Justice Sonia Sotomayor: The Wetterling Act didn't apply to him; is that--
M. Carolyn Fuentes: No.
I don't think the Wetterling Act applied to him.
Justice Sonia Sotomayor: --At all?
M. Carolyn Fuentes: Correct.
But even if it did, it was -- it's far removed from a registration requirement.
It is a penalty, not a registration requirement.
The State imposed a registration requirement.
Wetterling did not.
And if you'd just read -- and I think that's what the Fifth Circuit did.
They just read the statute, 14072(i)(3) and (i)(4).
It doesn't say a person who is required to register will follow -- will suffer the following punishment.
It says a person described in 4042(d), a person who's been into a court-martial.
If you look at the rest of 14072 and parts of 14071, there are provisions that say such and such person shall register.
That is a registration requirement.
Justice Elena Kagan: I -- I guess what I'm not understanding, Ms. Fuentes, is -- I understand the difference between a requirement of registration and a penalty for failing to register, but it's a little bit cutting -- slicing the baloney thin.
And if you think that he was in any event while he was undergoing his sentence subject to a penalty, it's a pretty minor exercise of Federal power, isn't it, to say that, instead of making you just subject to a penalty for doing something, we're going to tell you, you have to do it?
M. Carolyn Fuentes: I guess I don't.
And the reason is it's not the degree of power exerted, it's whether the power exists.
And once Mr. Kebodeaux completed his Federal sentence, the military power, which permitted him to be prosecuted and punished, had expired.
And so in some ways it's like there's Federal enclave jurisdiction on this side of the street where the base exists, where the Navy yard exists, and things that happened here can be punished by the Federal Government, but just across the street the exact same things can occur and the Federal Government cannot punish it.
So I think it is very careful to draw those fine lines, and I think it is essential when discussing issues of the enumerated powers, because they are limited.
I don't mean to move on fast.
I did want to mention -- I know my time is almost up -- that we have offered an alternative ground for deciding the constitutional questions here: The effective date argument.
I know we didn't raise it in the Fifth Circuit, but this Court has the authority to consider it, and we have put into our brief all the reasons that Mr. Kebodeaux is not covered by SORNA to begin with.
In the Sixth, Ninth and Third Circuits, he could not be prosecuted under SORNA, and so that is an alternative basis that I think the Court can decide this case on.
And if there are no other questions, I will cede the rest of my time.
Chief Justice John G. Roberts: Thank you, counsel.
Mr. Dreeben, you have three minutes remaining.
REBUTTAL ARGUMENT OF MICHAEL R. DREEBEN ON BEHALF OF THE PETITIONER
Michael R. Dreeben: Thank you, Mr. Chief Justice.
As I understand Respondent's argument, Respondent concedes that he could have been put under a lifetime requirement to register with State authorities and punished federally if he did not, if only that requirement had been imposed on him either at the time of sentencing or in a parallel civil proceeding that occurred while he was in the military.
This case, therefore, reduces to a question of timing.
The essential argument that Respondent is making is that Congress had its -- had its authority expire because it didn't exercise it.
There's some sort of notion that Congress must speak now or forever hold its peace.
Justice Antonin Scalia: But that's not unusual.
When you're released from the military, for example, you're no longer subject to -- to Congress's jurisdiction over the military.
That's a matter of timing too, isn't it?
Michael R. Dreeben: Well, that's just wrong, Justice Scalia, because this Court made clear in United States ex rel Toth v. Quarles that if an individual has left the military but hasn't been prosecuted, they can't be court-martialed, but they can be prosecuted in an Article III clause.
Justice Antonin Scalia: Not for something that they've done after they left the military.
That's a question of timing.
Had they left the military when they committed this crime?
If so, they can't be prosecuted under -- under that power of the Federal Government.
Michael R. Dreeben: But sex offender registration is a consequence of the military crime.
That was committed while they were in the military.
It's a civil remedy that may, consistent with other constitutional provisions, be imposed retroactively.
And this case comes down not to whether any member of the Court agrees with the Ex Post Facto Doctrine analysis in Smith v. Doe or whether there might be due process or other concerns out there, it comes down to whether Congress has Article I authority to say--
Chief Justice John G. Roberts: And that's not limited.
You've limited it to sex offenses, but the -- Congress could say it's important to us that people who serve in the military behave correctly even after they're released.
So it is a Federal offense to do anything that violates State law for the rest of their lives, and your argument would say, well, that's part of their authority to regulate the military and so it's okay.
Michael R. Dreeben: --Let me make two points about that, Mr. Chief Justice.
First of all, a standard condition of Federal supervised release is that the individual shall not violate any Federal, State or local law, and for many sex offenders, supervised release runs for life.
Justice Antonin Scalia: That's part of his sentence.
That's part of the punishment imposed.
You assert that this is not part of the punishment imposed.
Michael R. Dreeben: I don't see any relevance that has to Article I authority; it has relevance to other constitutional provisions.
So, insofar as supervised release does contemplate this longstanding, continuous jurisdiction, that's a feature of Federal law that the Court ought to keep in mind in the way that it writes this opinion.
But second, if Congress passed such a law, it's not that it has carte blanche to do that, it's just that there's no per se rule that says it can't.
The Court would--
Chief Justice John G. Roberts: So your answer to my question is yes, Congress can do that.
It can say anyone in the military is subject for the rest of their life to Federal jurisdiction.
Whatever is a State law crime is a Federal crime.
Michael R. Dreeben: --Mr. Chief Justice, I'm not going to say no to that question, because I don't want to foreclose options that Congress may decide it's appropriate to pass, but the Court--
Justice Antonin Scalia: Right.
Who knows what they'll do, right?
Michael R. Dreeben: --But the Court does not have to agree that that is constitutional -- may I complete my sentence?
Chief Justice John G. Roberts: Sure.
Michael R. Dreeben: --in order to uphold this narrowly focused, tailored law that looks at a specific crime and imposes a specific requirement that's directly tied to the nature of that crime.
Chief Justice John G. Roberts: Thank you, counsel, counsel.
The case is submitted.
Chief Justice John G. Roberts: Justice Breyer has our opinion this morning in case 12-418 United State versus Kebodeaux.
Justice Stephen G. Breyer: In 1999 a Special Court Martial convicted Anthony Kebodeaux, who's a member of the Air Force of a sex offense.
In 2006, after he served his sentence and had been discharged from the Air Force, Congress enacted a new law called SORNA to Registration Act, which requires those convicted of federal sex offenses to register in States where they live, work or study.
And subsequently, Kebodeaux failed to satisfy that law.
He didn't register properly.
He was convicted of violating SORNA, but the Fifth Circuit held that the Constitution did not give Congress the power to apply SORNA to Kebodeaux.
In that circuit's view, Kebodeaux, having completed his sentence and left the Air Force before the act was passed, was henceforth, no different no different from any other person in America, and Congress could not enact SORNA and apply to him simply because he once violated the Federal Law.
We do not agree with the Fifth Circuit's conclusion.
At the time, Kebodeaux committed his crime, and well before he was released, he was subject to a different federal registration law namely, the Wetterling Act.
That act imposed civil registration requirements upon him that were really the same or virtually the same as those that the later-enacted SORNA applied.
So, Congress possessed adequate constitutional authority to pass Wetterling Act under Article I, military regulation and the broad necessary and proper clauses.
So, when Kebodeaux was released, he was not the same as every other American.
He was different from most other Americans, because he was subject to the requirements of the Wetterling Act and that difference in our view, means that at a minimum, that the same constitutional clauses that gave Congress the power to continue to subject Kebodeaux to the same requirements or basically the same, that were in SORNA.
We explain our reasons more fully in our opinion.
We reverse of this circuit's judgment.
The Chief Justice and Justice Alito have each filed an opinion concurring in the judgment.
Justice Scalia has filed the dissenting opinion and Justice Thomas has filed the dissenting opinion in which he is joined by Justice Scalia.