Jon Katz at Underdog picked up a Florida decision in US v. Powers that goes through the many and varied laws named after tragedies to children that give rise to the sex offender registry offenses, and concludes that the federal Adam Walsh Act is unconstitutional as an exercise of federal power that cannot be justified under the commerce clause.

As Jon notes, this is a great decision, following in the footsteps of US v. Lopez relating to guns in school zones.

For those who don’t do federal practice, this is the problem.  The federal government’s authority to create crimes out of whole cloth comes from the commerce clause, based upon the theory that the offense impacts on interstate commerce.  If a law doesn’t “regulate activities that substantially affect interstate commerce,” then the federal government has no business getting involved.

This is a problem for most federal law-makers, who are thus left with fewer opportunities to prove how tough they are on crime and how the federal government matters in the lives of ordinary people by passing laws named after children.  This, of course, refers to the enjoyment of an opportunity to turn every tragedy into some political gain by hastily creating a law to fix a problem that likely doesn’t exist to solve a tragedy that will make the lawmaker more electable.  Does this description make me sound cynical?

The problem with use of the commerce clause is that it is almost entirely rhetorical.  If a lawmaker, or a prosecutor, has any imagination at all, coupled with even a small facility at expressing a point, it takes little effort to create a rationale that turns any and every act performed by humankind into something that affects interstate commerce.

For example, consider “chaos theory.”  That’s the one where a butterfly, flapping its wings in the Sea of China, causes a tornado in Texas.  The theory is perfectly logical, but it also obliterates any ability to separate acts that are local from having a broader impact.  If the flapping of a butterfly’s wings has a global impact, then there is no limit to what would affect interstate commerce.  This argument has been widely accepted and, as a result, federal criminal law has expanded to the point of making federal judges akin to the local magistrate.

Over the course of the past 25 years, the feds have assumed jurisdiction over “crimes” that would never have been considered in federal courts before that.  Part of the problem has been the public’s lack of understanding of the limits of federal authority.  Criminal justice was largely a local matter, to be handled by states under traditional views of federalism. 

But as the lines between state and federal governments blurred, and as people began demanding that “someone do something” about each and every oddball problem that happened, Congress kept reaching out to cover matters that were always considered local before.  Unfortunately, the courts allowed this to happen, adopting an expansive view of the Commerce Clause that would permit any conduct to be criminalized provided a half-way decent argument was made. 

The Lopez decision was a turning point, where the Supreme finally said enough.  But that was 1995, and while it presented a break from the ever-expanding scope of federal authority, few judges have been bold enough to revisit criminal laws to decide whether it has a real impact on interstate commerce or is one of those rhetorical arguments that would have every act subject to the commerce clause because of a butterfly.

The Powers decision, though dealing with an unpleasant and unpopular subject, is an important decision and really quite bold.  It does not absolve sex offenders, or eliminate registry.  It does, however, leave such matters to the state to handle since the law had nothing to do with interstate commerce and the federal government had no authority to get involved.