     Case: 08-51185 Document: 00511383271 Page: 1 Date Filed: 02/15/2011




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                              FILED
                                                                  February 15, 2011

                                 No. 08-51185                      Lyle W. Cayce
                                                                        Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff - Appellee
v.

ANTHONY JAMES KEBODEAUX, also known as Anthony Kebodeaux,

                                           Defendant - Appellant




                Appeal from the United States District Court
                     for the Western District of Texas


Before STEWART, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:
      Defendant, Anthony Kebodeaux, a federally-adjudged sex offender, was
convicted of knowingly failing to update his sex offender registration after his
intra-state change of residence (from El Paso to San Antonio, Texas) as required
by the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C. §
2250(a)(2)(A) and 42 U.S.C. § 16913. He was sentenced to twelve months and one
day of imprisonment. On appeal, he argues that the Constitution does not grant
Congress the authority to enact § 2250(a)(2)(A) because that provision regulates
purely intra-state activities, rather than any aspect of Congress’s proper domain
of interstate commerce. We conclude that § 2250(a)(2)(A) is constitutional.
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                                     BACKGROUND
       In 1999, Kebodeaux, a twenty-one-year-old member of the United States
Air Force, was convicted under Article 120 of the Uniform Code of Military
Justice, 10 U.S.C. § 920, of Carnal Knowledge With a Child, and sentenced to
three months of confinement and a bad conduct discharge. The victim was a
fifteen-year-old with whom Kebodeaux had sexual relations to which the victim
assented in fact though she lacked the legal ability to consent. Kebodeaux served
his sentence and was dishonorably discharged from the military. No term of
supervised release was imposed.
       On August 8, 2007, Kebodeaux registered as a sex offender in El Paso,
Texas, and reported his residence at a street address in that city, in compliance
with SORNA. See 42 U.S.C. § 16913. On January 24, 2008, El Paso police were
unable to locate Kebodeaux at that address. On March 12, 2008, Kebodeaux was
found and arrested in San Antonio, Texas. Kebodeaux admits that he did not
update his registration or otherwise inform authorities of his relocation from El
Paso to San Antonio as required by SORNA.1 On April 2, 2008, a federal grand
jury indicted Kebodeaux on one count of violating of SORNA, 18 U.S.C.
§ 2250(a).
       Section 2250(a) makes it a crime punishable by up to ten years
imprisonment if a person who:




       1
         42 U.S.C. § 16913(a) provides: “A sex offender shall register, and keep the registration
current, in each jurisdiction where the offender resides, where the offender is an employee,
and where the offender is a student. For initial registration purposes only, a sex offender shall
also register in the jurisdiction in which convicted if such jurisdiction is different from the
jurisdiction of residence.” 42 U.S.C. § 16913(c) also provides, “A sex offender shall, not later
than 3 business days after each change of name, residence, employment, or student status,
appear in person in at least 1 jurisdiction involved pursuant to subsection (a) of this section
and inform that jurisdiction of all changes in the information required for that offender in the
sex offender registry. That jurisdiction shall immediately provide that information to all other
jurisdictions in which the offender is required to register.”

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            (1) is required to register under [SORNA];
            (2)(A) is a sex offender as defined for the purposes of [SORNA]
            by reason of a conviction under Federal law (including the
            Uniform Code of Military Justice), the law of the District of
            Columbia, Indian tribal law, or the law of any territory or
            possession of the United States; or
            (B) travels in interstate or foreign commerce, or enters or
            leaves, or resides in, Indian country; and
            (3) knowingly fails to register or update a registration as
            required by [SORNA].
Thus, “Section 2250 imposes criminal liability on two categories of persons who
fail to adhere to SORNA’s registration [and updating] requirements: any person
who is a sex offender ‘by reason of a conviction under Federal law, the law of the
District of Columbia, Indian tribal law, or the law of any territory or possession
of the United States, § 2250(a)(2)(A), and any other person required to register
under SORNA who ‘travels in interstate or foreign commerce, or enters or
leaves, or resides in, Indian country,’ § 2250(a)(2)(B).” Carr v. United States, 130
S. Ct. 2229, 2238 (2010) (alteration removed). Accordingly, “[f]or persons
convicted of sex offenses under federal or Indian tribal law, interstate travel is
not a prerequisite to § 2250 liability.” Id. at 2235 n.3 (citing § 2250(a)(2)(A)).
      In response to Kebodeaux’s pre-trial filings, the Government stated that
it was charging Kebodeaux solely because he fell under 18 U.S.C. § 2250(a)(2)(A),
as he qualified as a sex offender “for the purpose of” SORNA “by reason of a
conviction under . . . the Uniform Code of Military Justice” and knowingly failed
to update his registration when he moved intra-state, within Texas. The
Government also stated that it was not charging Kebodeaux under
§ 2250(a)(2)(B), for having traveled in interstate or foreign commerce or having
entered an Indian reservation and knowingly having failed to update his
registration. After a bench trial on the stipulated facts described above,
Kebodeaux was convicted and subsequently sentenced to twelve months and one



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day of imprisonment, with a five-year term of supervised release. Kebodeaux
timely appeals the constitutionality of his conviction and sentence.
                                       DISCUSSION
       We review challenges to the constitutionality of a conviction de novo.
United States v. Whaley, 577 F.3d 254, 256 (5th Cir. 2009).
                                               I.
       Kebodeaux narrowly focuses his challenge exclusively on § 2250(a)(2)(A)’s
punishment of a federal sex offender for knowingly failing to update his
registration after an intra-state relocation. He concedes the constitutional
validity of the balance of SORNA’s provisions.
       Under § 2250(a)(2)(B), SORNA makes it a federal offense for a sex offender
convicted under state or federal law to knowingly fail to update his SORNA
registration after traveling in interstate commerce. This court and others have
consistently held that § 2250(a)(2)(B) is a constitutional execution of Congress’s
power to regulate the channels of, and persons in, interstate commerce.2
Kebodeaux does not question those holdings or the constitutionality of §
2250(a)(2)(B).     He    argues     only    that    §   2250(a)(2)(A),     in   isolation,    is
unconstitutional because it is an invalid attempt by Congress to regulate intra-
state activities, rather than interstate commerce.
       Kebodeaux’s argument ignores the fact that § 2250(a)(2)(A) does not
require the “interstate commerce” jurisdictional hook. That section expressly
deals with persons convicted under federal sex offender statutes. Federal sex
offender statutes themselves are promulgated under various provisions of Article
I. See, e.g., 18 U.S.C. § 2243(a) (criminalizing “sexual abuse of a minor or ward”


       2
         Whaley, 577 F.3d at 258; accord United States v. George, — F.3d —, 2010 WL
4291497, at *4 (9th Cir. 2010); United States v. Guzman, 591 F.3d 83, 90 (2d Cir.), cert. denied,
130 S. Ct. 3487 (2010); United States v. Gould, 568 F.3d 459, 470-72 (4th Cir. 2009), cert.
denied, 130 S. Ct. 1686 (2010); United States v. Ambert, 561 F.3d 1202, 1210-11 (11th Cir.
2009); United States v. May, 535 F.3d 912, 921-22 (8th Cir. 2008).

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in United States “special maritime and territorial jurisdiction”, pursuant to
Congresses power Article 1 power “[t]o define and punish . . . felonies committed
on the high seas”). Here, Congress has the right to criminalize sexual abuse of
a minor by a member of the military, pursuant to its power to regulate the
military under Article 1, Section 8, Clauses 14 and 16 of the United States
Constitution. Kebodeaux does not suggest that Congress lacked the authority
to criminalize the conduct of which he was convicted or that the statute under
which he was convicted was unconstitutional.         The next question becomes
whether Congress’s power over federal sex offenses stretches far enough to
encompass a registration requirement. The Necessary and Proper Clause of the
Constitution gives Congress the power “[t]o make all laws which shall be
necessary and proper for carrying into Execution” the enumerated powers. U.S.
C ONST., art. 1, § 8, cl. 18. Specifically, in respect to effectuating the Commerce
Clause power, the Supreme Court has explained that the Necessary and Proper
Clause provides Congress the authority to enact “comprehensive legislation to
regulate the interstate market” even when that “regulation ensnares some
purely intrastate activity.” Gonzales v. Raich, 545 U.S. 1, 22 (2005). In Raich,
the Court held that under the Controlled Substances Act (“CSA”), through the
Necessary and Proper Clause power to effectuate the Commerce Clause
authority, Congress could regulate the intra-state production of marijuana as
“Congress could have rationally concluded that the aggregate impact on the
national market of all the” regulated intra-state activities “is unquestionably
substantial.” 545 U.S. at 32.
      The Supreme Court recently addressed Congress’s ability under Article 1,
Section 8, Clause 18 to promulgate statutes relating to federal crimes in United
States v. Comstock, 130 S. Ct. 1949 (2010). In that case, the Supreme Court held
that the Necessary and Proper Clause empowers Congress to enact legislation
that is “reasonably adapted” to effectuating an enumerated power. Id. at 1957,

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1961. Specifically, in Comstock, the Supreme Court upheld a federal
civil-commitment statute that “authorizes the Department of Justice to detain
a mentally ill, sexually dangerous federal prisoner beyond the date the prisoner
would otherwise be released[,] 18 U.S.C. § 4248.” Id. at 1954. The Court
concluded that Congress had such power based upon the Necessary and Proper
Clause’s authorization to implement the Commerce Clause and other
enumerated powers. It explained that to determine whether a statute was a
constitutional exercise of the Necessary and Proper Clause power “we look to see
whether the statute constitutes a means that is rationally related to the
implementation of a constitutionally enumerated power.” Id. at 1956 (emphasis
added); see also id. at 1962 (stating that the statute is constitutional under the
Clause if it “represent[s] a rational means for implementing a constitutional
grant of legislative authority”). The civil-commitment statute was constitutional,
therefore, as it was “‘reasonably adapted’ to Congress’s power to act as a
responsible federal custodian (a power that rests, in turn, upon federal criminal
statutes that legitimately seek to implement constitutionally enumerated
authority,” including the Commerce Clause power. Id. at 1961, 1964 (citations
omitted) (quoting United States v. Darby, 312 U.S. 100, 121 (1941)) (emphasis
added).
      In Comstock, the Court began its analysis of the statute by “assum[ing] for
argument’s sake that the Federal Constitution would permit a State to enact
this statute.” With that assumption, the Necessary and Proper Clause question
then is “whether the Federal Government, exercising its enumerated powers,
may enact such a statute as well.” 130 S. Ct. at 1956. Analyzed this way,
Kebodeaux’s suggestion that the fact that he no longer is in custody or on
supervised release renders the federal government powerless over him is
inapposite. No one challenges that a state may require registration of a state
sex offender who has been released from custody and parole. So, too, may the

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federal government require a federal sex offender to register even if he is no
longer in custody or on supervised release.
      The Comstock Court described five factors it considered in holding that the
civil-commitment statute was constitutional: “(1) the breadth of the Necessary
and Proper Clause, (2) the long history of federal involvement in [legislating in
relation to ‘prison-related mental health statutes,’ like the one at issue in
Comstock], (3) the sound reasons for the statute’s enactment . . . , (4) the
statute’s accommodation of state interests, and (5) the statute’s narrow scope.”
Id. at 1965.
      These factors implement the notion that Congress may pass laws
rationally related or reasonably adapted to the effectuation of enumerated
powers. For example, in discussing the first factor, the Court wrote: “We have
. . . made clear that, in determining whether the Necessary and Proper Clause
grants Congress the legislative authority to enact a particular federal statute,
we look to see whether the statute constitutes a means that is rationally related
to the implementation of a constitutionally enumerated power.” Id. at 1956.
Regarding the second factor, the Court explained that the history of federal
involvement in an area could not on its own “demonstrate a statute’s
constitutionality”; instead, the Court stated it was a means of analyzing “the
reasonableness of the relation between the new statute and pre-existing federal
interests.” Id. at 1958. Similarly, in expounding the third factor, the Court stated
that a court should find the reasons for a statute sound if they “satisf[y] the
Constitution’s insistence that a federal statute represent a rational means for
implementing a constitutional grant of legislative authority.” Id. at 1962.
      The Eleventh Circuit has construed Comstock as holding that a statute
that is “rationally related” or “reasonably adapted” to an enumerated power is
a constitutional expression of the Necessary and Proper Clause power. See
United States v. Belfast, 611 F.3d 783, 804 (11th Cir. 2010) (stating that

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Comstock holds that to determine whether “the Necessary and Proper Clause
grants Congress the legislative authority to enact a particular federal statute,
we look to see whether the statute constitutes a means that is rationally related
to the implementation of a constitutionally enumerated power” (quoting
Comstock, 130 S. Ct. at 1956) (emphasis in original) (internal quotation marks
omitted).
      Reviewing the Comstock factors in light of the Court’s analysis, we
conclude that the SORNA registration requirement for registration of federal sex
offenders is rationally related to the original goals of the criminal statutes under
which persons such as Kebodeaux were convicted. We conclude that interstate
travel does not have to be part of the analysis.
                                 CONCLUSION
      Accordingly, we conclude that § 2250(a)(2)(A)’s application to intra-state
violations of SORNA by sex offenders convicted under federal law is
constitutional.   For these reasons, the judgment of the district court is
AFFIRMED.




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DENNIS, Circuit Judge, concurring in the judgment and assigning reasons:
       Defendant Anthony Kebodeaux, a federally-adjudged sex offender, was
convicted of knowingly failing to update his sex offender registration after his
intra-state change of residence (from El Paso to San Antonio, Texas) as required
by the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C.
§ 2250(a)(2)(A) and 42 U.S.C. § 16913. He was sentenced to twelve months and
one day of imprisonment. On appeal, he argues that the Constitution does not
grant Congress the authority to enact § 2250(a)(2)(A) because that provision
regulates purely intra-state activities, rather than any aspect of Congress’s
proper domain of interstate commerce. I conclude, however, that § 2250(a)(2)(A)
is constitutional because it is not a stand-alone statute, but is part of SORNA
and necessary to make SORNA effective in regulating the channels of, and
persons in, interstate commerce.
       Under § 2250(a)(2)(B), SORNA makes it a federal offense for a sex offender
convicted under state or federal law to knowingly fail to update his SORNA
registration after traveling in interstate commerce. This court and others have
consistently held that § 2250(a)(2)(B) is a constitutional execution of Congress’s
power to regulate the channels of, and persons in, interstate commerce.1
Kebodeaux does not question those holdings or the constitutionality of
§ 2250(a)(2)(B). He argues only that § 2250(a)(2)(A), in isolation, is
unconstitutional because it is an invalid attempt by Congress to regulate intra-
state activities, rather than interstate commerce.
       Kebodeaux’s challenge is without merit because § 2250(a)(2)(A) is an
integral part of SORNA, rather than a stand-alone provision, and, as such, it is
a constitutional regulation of intra-state activities that is necessary and proper

       1
        United States v. Whaley, 577 F.3d 254, 258 (5th Cir. 2009); accord United States v.
Guzman, 591 F.3d 83, 90 (2d Cir. 2010); United States v. Gould, 568 F.3d 459, 470-72 (4th Cir.
2009); United States v. Ambert, 561 F.3d 1202, 1210-11 (11th Cir. 2009); United States v. May,
535 F.3d 912, 921-22 (8th Cir. 2008).

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to make § 2250(a)(2)(B) effective as a regulation of interstate commerce. As
structured, SORNA recognizes that “‘every state ha[s] enacted’ some type of [sex
offender] registration system”2 and that “Congress . . . conditioned certain
federal funds on States’ adoption of ‘criminal penalties’ on any person ‘required
to register under a State program who knowingly fails to so register and keep
such registration current.’”3 In this manner, SORNA gave “the States primary
responsibility for supervising and ensuring compliance among state sex
offenders.”4 Congress did not delegate to the states, however, the additional
responsibility of prosecuting sex offenders convicted under federal law who fail
to update their registrations after in-state residence changes. Rather, SORNA
makes such an intra-state re-registration failure a federal offense amenable to
prosecution by the federal government. Section 2250(a)(2)(A) helps to make
SORNA’s regulation of interstate commerce effective by obviating potential
sources of interference or disruption of that objective. For example, had Congress
not criminalized federal sex offenders’ undocumented, intra-state residence
changes, there would no deterrence to their moving intra-state without re-
registering. This would have caused disparate and delayed enforcement of
SORNA against federal sex offenders, allowing them to establish residences in
some states as apparent law abiders, which would have made them difficult to
monitor either in-state or in interstate commerce.




       2
         Carr v. United States, 130 S. Ct. 2229, 2239 n.7 (2010) (quoting Smith v. Doe, 538 U.S.
84, 90 (2003)) (alteration in original omitted).
       3
         Id. at 2238-39 (quoting Jacob Wetterling Crimes Against Children and Sexually
Violent Offender Registration Act, Pub. L. 103-322, tit. XVII, § 170101(c), 108 Stat. 2041
(1994), codified at 42 U.S.C. § 14072(d)) (alteration in original omitted).
       4
           Id. at 2238.

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                                               I.
       On April 2, 2008, a federal grand jury indicted Kebodeaux on one count of
violating SORNA, 18 U.S.C. § 2250(a).5 Section § 2250(a) makes it a crime
punishable by up to ten years imprisonment for:
       Whoever—
           (1) is required to register under the Sex Offender Registration
           and Notification Act;
           (2)(A) is a sex offender as defined for the purposes of the Sex
           Offender Registration and Notification Act by reason of a
           conviction under Federal law (including the Uniform Code of
           Military Justice), the law of the District of Columbia, Indian
           tribal law, or the law of any territory or possession of the
           United States; or
           (B) travels in interstate or foreign commerce, or enters or
           leaves, or resides in, Indian country; and
           (3) knowingly fails to register or update a registration as
           required by the Sex Offender Registration and Notification
           Act.
Thus, “Section 2250 imposes criminal liability on two categories of persons who
fail to adhere to SORNA’s registration [and updating] requirements: any person
who is a sex offender ‘by reason of a conviction under Federal law, the law of the
District of Columbia, Indian tribal law, or the law of any territory or possession
of the United States,’ § 2250(a)(2)(A), and any other person required to register
under SORNA who ‘travels in interstate or foreign commerce, or enters or
leaves, or resides in, Indian country,’ § 2250(a)(2)(B).” Carr, 130 S. Ct. at 2238



       5
         42 U.S.C. § 16913(a) requires, “A sex offender shall register, and keep the registration
current, in each jurisdiction where the offender resides, where the offender is an employee,
and where the offender is a student. For initial registration purposes only, a sex offender shall
also register in the jurisdiction in which convicted if such jurisdiction is different from the
jurisdiction of residence.” 42 U.S.C. § 16913(c) also provides, “A sex offender shall, not later
than 3 business days after each change of name, residence, employment, or student status,
appear in person in at least 1 jurisdiction involved pursuant to subsection (a) of this section
and inform that jurisdiction of all changes in the information required for that offender in the
sex offender registry. That jurisdiction shall immediately provide that information to all other
jurisdictions in which the offender is required to register.”

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(alteration in original omitted). Accordingly, “[f]or persons convicted of sex
offenses under federal or Indian tribal law, interstate travel is not a prerequisite
to § 2250 liability.” Id. at 2235 n.3 (citing § 2250(a)(2)(A)).
      Kebodeaux narrowly focuses his challenge exclusively on § 2250(a)(2)(A)’s
punishment of a federal sex offender for knowingly failing to update his
registration after an intra-state relocation. He concedes the constitutional
validity of the balance of SORNA’s provisions.
                                         II.
      Yet, as the Supreme Court recently explained in Carr v. United
States—holding that “[l]iability under § 2250[(a)(2)(B)] . . . cannot be predicated
on pre-SORNA travel,” 130 S. Ct. at 2233—“Section 2250 is not a stand-alone
response to the problem of missing sex offenders; it is embedded in [the] broader
statutory scheme” of the Adam Walsh Child Protection and Safety Act of 2006,
Pub. L. No. 109-248, 120 Stat. 587, which was “enacted to address the
deficiencies in prior law that had enabled sex offenders to slip through the
cracks” of sex offender registration systems. Carr, 130 S. Ct. at 2240 (citing 42
U.S.C. § 16901 for the proposition that “Congress in this chapter establishes a
comprehensive national system for the registration of [sex] offenders” (alteration
in original)).
      Accordingly, in Carr, the Supreme Court described how SORNA’s various
sections work together to further the joint state-federal goals of comprehensive
identification and registration of all state and federal sex offenders and
punishing those who knowingly avoid updating their registrations:
      Among its many provisions, SORNA instructs States to maintain
      sex-offender registries that compile an array of information about
      sex offenders, [42 U.S.C.] § 16914; to make this information publicly
      available online, § 16918; to share the information with other
      jurisdictions and with the Attorney General for inclusion in a
      comprehensive national sex-offender registry, §§ 16919-16921; and
      to “provide a criminal penalty that includes a maximum term of

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      imprisonment that is greater than 1 year for the failure of a sex
      offender to comply with the requirements of this subchapter,”
      § 16913(e). Sex offenders, in turn, are required to “register, and keep
      the registration current, in each jurisdiction where the offender
      resides, where the offender is an employee, and where the offender
      is a student,” § 16913(a), and to appear in person periodically to
      “allow the jurisdiction to take a current photograph, and verify the
      information in each registry in which that offender is required to be
      registered,” § 16916.

Id. at 2240-41. The Court continued, “By facilitating the collection of
sex-offender information and its dissemination among jurisdictions, these
provisions, not § 2250, stand at the center of Congress’ effort to account for
missing sex offenders.” Id. at 2241. Therefore, 28 U.S.C. § 2250(a)(2)(A), a
subsection of that same statute, clearly was not enacted as a stand-alone
provision, but rather as a complement to the Act’s other provisions. Cf. Whaley,
577 F.3d at 259 (citing United States v. Dixon, 551 F.3d 578, 582 (7th Cir. 2008))
(stating that § 2250 is “complementary” to SORNA’s registration requirements
in § 16913).
                                       III.
      The Necessary and Proper Clause of the Constitution gives Congress the
power “[t]o make all Laws which shall be necessary and proper for carrying into
Execution” the enumerated powers. U.S. Const. art. 1, § 8, cl. 18. Specifically, in
respect to effectuating the Commerce Clause power, the Supreme Court has
explained that the Necessary and Proper Clause provides Congress the authority
to enact “comprehensive legislation to regulate the interstate market” even when
that “regulation ensnares some purely intrastate activity.” Gonzales v. Raich,
545 U.S. 1, 22 (2005). In Raich, the Court held that under the Controlled
Substances Act (“CSA”), through the Necessary and Proper Clause power to
effectuate the Commerce Clause authority, Congress could regulate the intra-
state production of marijuana as “Congress could have rationally concluded that


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the aggregate impact on the national market of all the” regulated intra-state
activities “is unquestionably substantial.” 545 U.S. at 31.
      In Raich, Justice Scalia concurred in the judgment and wrote separately
to explain that, although he “agree[d] with the Court’s holding that the [CSA]
may validly be applied to respondents’ [intra-state] cultivation, distribution, and
possession of marijuana for personal, medicinal use,” his “understanding of the
doctrinal foundation on which that holding rests is, if not inconsistent with that
of the Court, at least more nuanced.” Id. at 33 (Scalia, J., concurring in the
judgment). He explained that the combination of the Necessary and Proper
Clause power and the Commerce Clause authority means that “Congress’s
authority to enact laws necessary and proper for the regulation of interstate
commerce is not limited to laws directed against economic activities that have
a substantial effect on interstate commerce. . . . [Congress can] regulate[] [non-
economic activities] as ‘an essential part of a larger regulation of economic
activity, in which the regulatory scheme could be undercut unless the intrastate
activity were regulated.’” Id. at 36 (quoting United States v. Lopez, 514 U.S. 549,
561 (1995)). “The relevant question is simply whether the means chosen are
‘reasonably adapted’ to the attainment of a legitimate end under the commerce
power.” Id. at 37 (emphasis added) (citing United States v. Darby, 312 U.S. 100,
121 (1941)).
      Justice Scalia based his interpretation on a long line of Supreme Court
precedents. Id. at 34 (citing Katzenbach v. McClung, 379 U.S. 294, 301-02,
(1964); United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942);
Shreveport Rate Cases, 234 U.S. 342, 353 (1914); United States v. E.C. Knight
Co., 156 U.S. 1, 39-40 (1895) (Harlan, J., dissenting); United States v. Coombs,
37 U.S. (12 Pet.) 72, 78 (1838)). Moreover, he explained, “[W]e implicitly
acknowledged in Lopez . . . Congress’s authority to enact laws necessary and
proper for the regulation of interstate commerce is not limited to laws directed

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against economic activities that have a substantial effect on interstate
commerce. Though the conduct in Lopez was not economic, the Court
nevertheless recognized that it could be regulated as ‘an essential part of a
larger regulation of economic activity, in which the regulatory scheme could be
undercut unless the intrastate activity were regulated.’ 514 U.S. at 561.” Id. at
36. “This statement referred to those cases permitting the regulation of
intrastate activities ‘which in a substantial way interfere with or obstruct the
exercise of the granted power.’” Id. (quoting Wrightwood Dairy Co., 315 U.S. at
119) (citing Darby, 312 U.S. at 118-19; Shreveport Rate Cases, 234 U.S. at 353).
“As the Court put it in Wrightwood Dairy, where Congress has the authority to
enact a regulation of interstate commerce, ‘it possesses every power needed to
make that regulation effective.’ 315 U.S. at 118-19.” Id. “Although this power ‘to
make . . . regulation effective’ commonly overlaps with the authority to regulate
economic activities that substantially affect interstate commerce, and may in
some cases have been confused with that authority, the two are distinct. The
regulation of an intrastate activity may be essential to a comprehensive
regulation of interstate commerce even though the intrastate activity does not
itself ‘substantially affect’ interstate commerce. Moreover, as the passage from
Lopez quoted above suggests, Congress may regulate even noneconomic local
activity if that regulation is a necessary part of a more general regulation of
interstate commerce.” Id. at 37 (alteration in original) (footnote omitted) (citing
Lopez, 514 U.S. at 561). “The relevant question is simply whether the means
chosen are ‘reasonably adapted’ to the attainment of a legitimate end under the
commerce power.” Id. (emphasis added) (quoting Darby, 312 U.S. at 121).
      In Comstock v. United States, 130 S. Ct. 1949 (2010), the majority of the
Supreme Court confirmed Justice Scalia’s view that the Necessary and Proper
Clause empowers Congress to enact legislation that is “reasonably adapted” to
effectuating an enumerated power. Specifically, in Comstock, the Supreme Court

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                                  No. 08-51185

upheld a federal civil-commitment statute that “authorizes the Department of
Justice to detain a mentally ill, sexually dangerous federal prisoner beyond the
date the prisoner would otherwise be released, 18 U.S.C. § 4248.” 130 S. Ct. at
1954. The Court concluded that Congress had such power based upon the
Necessary and Proper Clause’s authorization to implement the Commerce
Clause and other enumerated powers. It explained that to determine whether
a statute was a constitutional exercise of the Necessary and Proper Clause
power “we look to see whether the statute constitutes a means that is rationally
related to the implementation of a constitutionally enumerated power.” Id. at
1956 (emphasis added); see also id. at 1962 (stating that the statute is
constitutional under the Clause if it “represent[s] a rational means for
implementing     a   constitutional   grant   of   legislative   authority”).   The
civil-commitment statute was constitutional, therefore, as it was “‘reasonably
adapted’ to Congress’s power to act as a responsible federal custodian[,] a power
that rests, in turn, upon federal criminal statutes that legitimately seek to
implement constitutionally enumerated authority,” including the Commerce
Clause power. Id. at 1961, 1964 (emphasis added) (citations omitted) (quoting
Darby, 312 U.S. at 121).
      In Comstock, the majority described five factors it considered in holding
that the civil-commitment statute was constitutional: “(1) the breadth of the
Necessary and Proper Clause, (2) the long history of federal involvement in
[legislating in relation to‘prison-related mental health statutes,’ like the one at
issue in Comstock, id. at 1958], (3) the sound reasons for the statute’s enactment
. . ., (4) the statute’s accommodation of state interests, and (5) the statute’s
narrow scope.” Id. at 1965. However, the majority opinion demonstrates that
these factors are merely ways of rephrasing or implementing the notion that
Congress may pass laws rationally related or reasonably adapted to the
effectuation of enumerated powers. For example, in discussing the first factor,

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                                   No. 08-51185

the Court wrote: “We have . . . made clear that, in determining whether the
Necessary and Proper Clause grants Congress the legislative authority to enact
a particular federal statute, we look to see whether the statute constitutes a
means that is rationally related to the implementation of a constitutionally
enumerated power.” Id. at 1956. Regarding the second factor, the Court
explained that the history of federal involvement in an area could not on its own
“demonstrate a statute’s constitutionality”; instead, the Court stated that it was
a means of analyzing “the reasonableness of the relation between the new
statute and pre-existing federal interests.” Id. at 1958. Similarly, in expounding
the third factor, the Court stated that a court should find the reasons for a
statute sound if they “satisf[y] the Constitution’s insistence that a federal statute
represent a rational means for implementing a constitutional grant of legislative
authority.” Id. at 1962.
      Other jurists and commentators have also read the Comstock majority as
holding that a statute that is “rationally related” or “reasonably adapted” to an
enumerated power is a constitutional expression of the Necessary and Proper
Clause power. See id. at 1966 (Kennedy, J., concurring in the judgment) (“The
Court concludes that, when determining whether Congress has the authority to
enact a specific law under the Necessary and Proper Clause, we look ‘to see
whether the statute constitutes a means that is rationally related to the
implementation of a constitutionally enumerated power.’” (quoting id. at 1956
(majority opinion))); United States v. Belfast, 611 F.3d 783, 804 (11th Cir. 2010)
(stating that Comstock holds that to determine whether “the Necessary and
Proper Clause grants Congress the legislative authority to enact a particular
federal statute, we look to see whether the statute constitutes a means that is
rationally related to the implementation of a constitutionally enumerated power”
(quoting Comstock, 130 S. Ct. at 1956) (internal quotation marks omitted));
Al-Bihani v. Obama, 619 F.3d 1, 25 n.11 (D.C. Cir. 2010) (Kavanaugh, J.,

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concurring in the denial of rehearing en banc) (suggesting the same reading of
Comstock); Virginia ex rel. Cuccinelli v. Sebelius, 702 F. Supp. 2d 598, 611 (E.D.
Va. 2010) (“[T]he relevant inquiry is simply whether the means chosen are
reasonably adapted to the attainment of a legitimate end under the commerce
power or under other powers that the Constitution grants Congress the
authority to implement.” (alteration in original) (quoting Comstock, 130 S. Ct.
at 1957) (internal quotation marks omitted));6 16A Am. Jur. 2d Constitutional
Law § 343 (2010) (“In determining whether the Necessary and Proper Clause
grants Congress the legislative authority to enact a particular federal statute,
the court looks to see whether the statute constitutes a means that is rationally
related to the implementation of a constitutionally enumerated power.” (citing
Comstock, 130 S. Ct. 1949)); Robert R. Harrison, Health Care Reform in the
Federal Courts, 57 Fed. Law., Sept.–2010, at 52, 56 (“In Comstock, the Court
noted that the scope of the Necessary and Proper Clause is limited by the
inquiry ‘whether the means chosen are reasonably adapted to the attainment of
a legitimate end under the commerce power or other powers that the
Constitution grants Congress the authority to implement.’” (quoting Comstock,
130 S. Ct. at 1956-57)).7



       6
         See also Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 393 (D. Mass. 2010)
(stating that the second Comstock factor, history, is only a proxy to determine “the
reasonableness of the relation between the new statute and pre-existing federal interests”
(quoting Comstock, 130 S. Ct. at 1952) (internal quotation marks omitted)); Massachusetts v.
U.S. Dep’t of Health & Human Servs., 698 F. Supp. 2d 234, 250 (D. Mass. 2010) (same).
       7
         See also 16A Am. Jur. 2d Constitutional Law § 107 (2010) (stating that the second
Comstock factor, history, is a proxy for determining “the reasonableness of the relation
between the new statute and pre-existing federal interests”); Michael C. Dorf, The Supreme
Court’s Decision About Sexually Dangerous Federal Prisoners: Could It Hold the Key to the
Constitutionality of the Individual Mandate To Buy Health Insurance? Findlaw.com (May 19,
2010), http://writ.news.findlaw.com/dorf/20100519.html (“[T]he seven Justices in the
[Comstock] majority [] were fully comfortable with federal power extending to areas that are
not independently regulable, so long as regulation in those areas is reasonably related to
regulation that is within the scope of congressional power.”).

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                                        IV.
      Accordingly, I conclude that § 2250(a)(2)(A)’s application to intra-state
violations of SORNA by sex offenders convicted under federal law is necessary
and proper to, that is, rationally related and reasonably adapted to, § 2250(a)’s
other subsection, § 2250(a)(2)(B), which we have already upheld as a proper
exercise of the Commerce Clause power. Whaley, 577 F.3d at 258. For these
reasons, I agree that the judgment of the district court must be affirmed.
      Although I agree with the majority in affirming the judgment of the
district court, I cannot join the majority opinion because it departs from the
doctrinal framework established by the Supreme Court for analyzing commerce
clause legislation such as SORNA and its provisions that are at issue in the
present case. Contrary to the clear teachings of the Supreme Court in Carr and
this court in Whaley, the majority interprets § 2250(a)(2)(A) as a stand-alone
statute that is rationally related only to a pre-existing military penal statute,
rather than as a necessary and integral part of the commerce-clause-based
SORNA. By trying to justify SORNA’s § 2250(a)(2)(A) as rationally related to the
military law under which Kebodeaux was convicted and imprisoned, rather than
reasonably adapted to SORNA’s regulation of interstate commerce, with which
§2250(a)(2)(A) was enacted and made an integral part, the majority relies upon
an altogether different legislative power that is, at best, only tangentially related
to SORNA’s registration requirement. Consequently, I believe that the majority
has fallen into serious error in reading Comstock to arrogate vast revisionary
powers to judges, allowing them to uphold as necessary and proper any piece of
legislation, regardless of the vehicle by which Congress enacted it, so long as the
judges can in retrospect see a rational relationship between that law and some
enumerated power.




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