An en banc panel of the United States Court of Appeals for the Fifth Circuit recently ruled that the federal government has no constitutional basis to apply federal sex offender registry requirements to defendants released unconditionally prior to enactment of the federal sex offender laws and whose travel is purely intrastate.

The defendant in the case, U.S. v. Kebodeaux, served three months in a federal prison in 1999 for a sex offense. After serving his time, the federal government released him from custody without any conditions or post-release supervision. The opinion states that the federal government “severed all ties with him.” The defendant established residence in Texas and registered as a sex offender under the state requirements in effect. Thereafter, federal sex offender laws were enacted that included more heightened registration requirements than state law.

At some point after those federal sex offender registry laws went into effect, the defendant moved from San Antonio to El Paso—purely intrastate travel. He did not update his address on the registry within three days as the federal registration laws passed after his release from federal custody required him to do so, a requirement not found in state law. For this failure, the federal government convicted him for his failure to update his address as a violation of the federal registration law passed after his release from custody.

The Fifth Circuit found “no jurisdictional hook” for the charges against the defendant in this specific case. Only in this narrow set of circumstances, wherein an unconditional release from federal custody preceded enactment of the sex offender laws and no other jurisdictional basis (such as interstate travel) exists, is the application of the federal sex offender laws unconstitutional. States are still free to regulate and register these sex offenders, as is the federal government if the offender was in custody or under supervision at the time of enactment of the registry laws or at any time after.

The Fifth Circuit majority specifically rejected the federal government’s position that it could impose federal registry requirements on the defendant in this case due to the power given to Congress under the Commerce Clause of the United States Constitution. The Commerce Clause only permits Congressional regulation of the use of the channels of interstate commerce or things in or substantially affecting interstate commerce. Here, the federal government pointed to the possible effect the defendant’s intrastate travel could have on interstate commerce. The Fifth Circuit rejected this, stating that this interpretation is “so expansive that it would confer on the federal government plenary power to regulate all criminal activity” in contravention of Supreme Court precedent.

The opinion can be read here.