FEDERALISM CHALLENGES TO THE ADAM WALSH ACT

2009:

INTRODUCTION

One of the fundamental features of our government’s structure is that the states have a general police power, while the federal government is limited by its enumerated powers.1 Over the past fifty years, Congress has vastly expanded the federal criminal law via the Commerce Clause.2 Because regulating criminal activity is primarily the responsibility of the states,3 many scholars perceive the rapid expansion of the federal criminal law as clashing with federalism values.4 The Adam Walsh Child Protection and Safety Act of 20065 ("the Adam Walsh Act"), once described as "the most comprehensive child crimes and protection bill in our nation’s history,"6 is an example of this conflict.


This Note addresses two provisions of the Adam Walsh Act that scholars have challenged as violating principles of federalism: 18 U.S.C. § 4248, which provides for federal civil commitment of sexually violent predators, and 18 U.S.C. § 2250(a)(2)(A), which creates a new federal "failure to register" crime for federal sex offenders. Part I provides background information on the Adam Walsh Act and these two provisions. Part II examines the Commerce Clause and the Necessary and Proper Clause as the possible sources of constitutional authority for these provisions. Part II also explains that these two clauses provide the basis for most of federal criminal law, and describes how they might be and have been invoked to justify the Adam Walsh Act provisions at issue. Part III argues that neither provision is justified independently by the Commerce Clause.

For the remainder of this paper: by Robin Morse*