In U.S. v. Ambert, No. 08-13139 (March 6, 2009), the Court rejected a defendant’s challenge to his conviction for failing to register under the Sex Offender Registration and Notification Act ("SORNA").
The Court rejected Ambert’s argument that his travel in interstate commerce occurred before the Attorney General determined that SORNA’s registration requirements applied on February 28, 2007 to previously convicted sex offenders, and therefore did not subject him to criminal liability for failing to register. First, he also traveled after February 28. Second, the violation consists of a failure to register, which accrued after February 28.
The Court rejected an ex post facto challenge to the SORNA statute, noting that the registration violation occurs after the effective date of the Attorney General’s retroactivity determination.
The Court also rejected a substantive due process to the SORNA statute, finding that strict scrutiny did not apply because the right of a person convicted of sex offenses to refuse registration was not deeply rooted in the Nation’s history, and, applying rational basis scrutiny, the registration requirement was reasonably related to the goal of protecting the public from recidivist sex offenders.
Overruling the district court decision in U.S. v. Myers, the Court rejected a Commerce Clause challenge. The Court found that "when a sex offender travels from one state to another, he is an instrumentality of interstate commerce, and by regulating these persons in SORNA, Congress has acted under its commerce clause power to regulate an instrumentality."
Finally, the Court rejected a non-delegation challenge, finding that Congress laid down an adequate "intelligible principle" to guide the Attorney General’s retroactivity determination for SORNA violators.
