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*

Federalism Challenges to the Adam Walsh Act

August 2009:

Abstract:
This Note addresses two provisions of the Adam Walsh Act that have been 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 possible sources of constitutional authority for these provisions, the Commerce Clause and the Necessary and Proper Clause. This Part explains that these two clauses provide the basis for most of the federal criminal law, and describes how they might be invoked to justify the Adam Walsh Act provisions at issue.

Part III argues that neither provision is justified independently by the Commerce Clause. Finally,

Part IV argues that neither provision is justified as a law necessary and proper for carrying into execution Congress’s power to enact federal criminal laws. This is the chief rationale that the government has relied on in cases challenging the constitutionality of the civil commitment provision.

Interestingly, the government has argued that the civil commitment provision is a law necessary and proper for carrying into execution Congress’s power to criminalize both federal offenders’ past federal crimes and possible future federal crimes. This Note argues that neither provision is a law necessary and proper for carrying into execution the federal government’s power to prosecute, punish, or imprison individuals for past federal offenses.

Furthermore, neither provision is a law necessary and proper for carrying into execution the federal government’s power to prevent future federal crimes. Because the provisions at issue exceed Congress’s constitutional authority, they are invalid and must be struck down. The Note concludes by suggesting how the provisions might be revised to pass constitutional muster. ..Source.. by Robin Morse, Boston University Law Review, Forthcoming