The Sex Offender Registration and Notification Act (SORNA) is an example of legislation that utilizes the constitutional mold, as it contains a jurisdictional hook that expressly limits its application to activities that affect interstate commerce. SORNA’s jurisdictional hook states that a sex offender is guilty of violating its provisions if, after that offender travels in interstate commerce, he or she fails to register or update a registration as required. This hook provides federal jurisdiction over sex offenders even though SORNA’s purpose is to regulate criminal conduct and thus traditionally within the states’ power to regulate. SORNA, therefore, exemplifies the way jurisdictional hooks have taken Congress beyond its traditional bounds.
Although much has been said about these topics separately, this Comment examines SORNA as an example of Congress’s ability to abuse jurisdictional hooks to invade the states’ police power. Part I will provide context to the discussion by examining the history and current scope of proper congressional authority, including Congress’s affirmative authority under the Commerce Clause, as well as the countervailing limitation of the Tenth Amendment. Part I also provides examples of proper jurisdictional hooks and identifies common characteristics that belong to those hooks. Part II describes SORNA’s jurisdictional hook in detail and evaluates it as an example of a superficial jurisdictional hook with the sole purpose of providing a basis for federal jurisdiction and infringing on the states’ police power. Part III presents a solution to the problem of Congress’s federal invasion of the states’ police power. That Part begins by asserting that the Supreme Court should take a stronger stance in ensuring that Congress’s constitutional mold adequately relates its legislation to interstate commerce. It then argues that the United States Supreme Court should address Congress’s pattern of creating legislation like SORNA by reviving the strength of the Tenth Amendment as last seen in the second era of the Court’s Commerce Clause jurisprudence.
The Sex Offender Registration and Notification Act: The Need to Break the Constitutional Mold, 41 Golden Gate U. L. Rev.