UNITED STATES v. KEBODEAUX
No. 12-418
SUPREME COURT OF THE UNITED STATES
June 24, 2013
570 U. S. ____ (2013)
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
Syllabus
UNITED STATES v. KEBODEAUX
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 12-418. Argued April 17, 2013—Decided June 24, 2013
Respondent Kebodeaux was convicted by a special court-martial of a federal sex offense. After serving his sentence and receiving a bad conduct discharge from the Air Force, he moved to Texas where he registered with state authorities as a sex offender. Congress subsequently enacted the Sex Offender Registration and Notification Act (SORNA), which requires federal sex offenders to register in the States where they live, study, and work,
Held: SORNA‘s registration requirements as applied to Kebodeaux fall within the scope of Congress’ authority under the Necessary and Proper Clause. Pp. 3–12.
(a) Contrary to the Fifth Circuit‘s critical assumption that Kebodeaux‘s release was unconditional, a full reading of the relevant statutes and regulations makes clear that at the time of his offense and conviction he was subject to the Wetterling Act, which imposed upon him registration requirements very similar to SORNA‘s. See,
(b) Congress promulgated the Wetterling Act under authority granted by the Military Regulation Clause, Art. I, §8, cl. 14, and the Necessary and Proper Clause. The same power that authorized Congress to promulgate the Uniform Code of Military Justice and punish Kebodeaux‘s crime also authorized Congress to make the civil registration requirement at issue here a consequence of his conviction. And its decision to impose a civil registration requirement that would apply upon the release of an offender like Kebodeaux is eminently reasonable. See Smith v. Doe, 538 U. S. 84, 102-103. It was also entirely reasonable for Congress to have assigned a special role to the Federal Government in ensuring compliance with federal sex offender registration requirements. See Carr v. United States, 560 U. S. 438, ____. Thus, Congress did not apply SORNA to an individual who had, prior to its enactment, been “unconditionally released,” but rather to an individual already subject to federal registration requirements enacted pursuant to the Military Regulation and Necessary and Proper Clauses. SORNA somewhat modified the applicable registration requirements to which Kebodeaux was already subject, in order to make more uniform what had remained “a patchwork of federal and 50 individual state registration requirements,” Reynolds v. United States, 565 U. S. ____. No one here claims that these changes are unreasonable or that Congress could not reasonably have found them “necessary and proper” means for furthering its preexisting registration ends. Pp. 6–12.
687 F. 3d 232, reversed and remanded.
BREYER, J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C. J., and ALITO, J., filed opinions concurring in the judgment. SCALIA, J., filed a dissenting opinion. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined as to Parts I, II, and III-B.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 12-418
UNITED STATES, PETITIONER v. ANTHONY JAMES KEBODEAUX
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
[June 24, 2013]
JUSTICE BREYER delivered the opinion of the Court.
In 1999 a special court-martial convicted Anthony Kebodeaux, a member of the United States Air Force, of a sex offense. It imposed a sentence of three months’ imprisonment and a bad conduct discharge. In 2006, several years after Kebodeaux had served his sentence and been discharged, Congress enacted the Sex Offender Registration and Notification Act (SORNA), 120 Stat. 590,
We here must decide whether the Constitution‘s Necessary and Prоper Clause grants Congress the power to enact SORNA‘s registration requirements and apply them
I
As we have just said, in 1999 a special court-martial convicted Kebodeaux, then a member of the Air Force, of a federal sex offense. He served his 3-month sentence; the Air Force released him with a bad conduct discharge. And then he moved to Texas. In 2004 Kebodeaux registered as a sex offender with Texas state authorities. Brief for Respondent 6-7. In 2006 Congress enacted SORNA. In 2007 Kebodeaux moved within Texas from San Antonio to El Paso, updating his sex offender registration. App. to Pet. for Cert. 167a-168a. But later that year he returned to San Antonio without making thе legally required sex-offender registration changes. Id., at 169a. And the Federal Government, acting under SORNA, prosecuted Kebodeaux for this last-mentioned SORNA registration failure.
A Federal District Court convicted Kebodeaux of having violated SORNA. See 687 F. 3d 232, 234 (CA5 2012) (en banc). On appeal a panel of the United States Court of Appeals for the Fifth Circuit initially upheld the conviction. 647 F. 3d 137 (2011) (per curiam). But the Circuit then heard the appeal en banc and, by a vote of 10 to 6, reversed. 687 F. 3d, at 234. The court stated that, by the
The court recognized that, even before SORNA, federal law required certain federal sex offenders to register. Id., at 235, n. 4. See Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, §170101, 108 Stat. 2038-2042. But it believed that the pre-SORNA federal registration requirements did not apply to Kebodeaux. 687 F. 3d, at 235, n. 4. Hence, in the Circuit‘s view, Kebodeaux had been “unconditionally let ... free.” Id., at 234. And, that being so, the Federal Government lacked the power under Article I‘s Necessary and Proper Clause to regulate through registration Kebodeaux‘s intrastate movements. Id., at 234-235. In particular, the court said that after “the federal government has unconditionally let a person free ... the fact that he once committed a crime is not a jurisdictional basis for subsequent regulation and possible criminal prosecution.” Ibid.
The Solicitor General sought certiorari. And, in light of the fact that a Federal Court of Appeals has held a federal statute unconstitutional, we granted the petition. See, e.g., United States v. Morrison, 529 U. S. 598, 605 (2000); United States v. Edge Broadcasting Co., 509 U. S. 418, 425 (1993).
II
We do not agree with the Circuit‘s conclusion. And, in explaining our reasons, we need not go much further than the Circuit‘s critical assumption that Kebodeaux‘s release was “unconditional,” i.e., that after Kebodeaux‘s release, he was not in “any ... special relationship with the federal government.” 687 F. 3d, at 234. To the contrary, the
Congress enacted the Wetterling Act in 1994 and updated it several times prior to Kebodeaux‘s offense. Like SORNA, it used the federal spending power to encourage States to adopt sex offender registration laws.
In particular,
Moreover, a different Wetterling Act section imposed federal criminal penalties upon any “person who is ... sentenced by a court martial for conduct in a category specified by the Secretary of Defense under section 115(a)(8)(C) of title I of Public Law 105–119, and knowingly fails to register in any State in which the person resides.”
We are not aware of any plausible counterargument to the obvious conclusion, namely that as of the time of Kebodeaux‘s offense, conviction and release from federal custody, these Wetterling Act provisions applied to Kebo-
III
Both the Court of Appeals and Kebodeaux come close to conceding that if, as of the time of Kebodeaux‘s offense, he was subject to a federal registration requirement, then the Necessary and Proper Clause authorized Congress to modify the requirement as in SORNA and to apply the modified requirement to Kebodeaux. See 687 F. 3d, at 234-235, and n. 4; Tr. of Oral Arg. 38–39. And we believe they would be right to make this concession.
No one here claims that the Wetterling Act, as applied to military sex offenders like Kebodeaux, falls outside the scope of the Necessary and Proper Clause. And it is difficult to see how anyone could persuasively do so. The Constitution explicitly grants Congress the power to “make Rules for the ... Regulation of the land and naval Forces.”
The scope of the Necessary and Proper Clause is broad. In words that have come to define that scope Chief Justice Marshall long ago wrote:
“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” McCulloch v. Maryland, 4 Wheat. 316, 421 (1819).
As we have come to understand these words and the provision they explain, they “leav[e] to Congress a large discretion as to the means that may be employed in executing a given power.” Lottery Case, 188 U. S. 321, 355 (1903). See Morrison, 529 U. S., at 607. The Clause allows Congress to “adopt any means, appearing to it most eligible and appropriate, which are adapted to the end to be accomplished and consistent with the letter and spirit of the Constitution.” James Everard‘s Breweries v. Day, 265 U. S. 545, 559 (1924).
The Constitution, for example, makes few explicit references to federal criminal law, but the Necessary and Proper Clause nonetheless authorizes Congress, in the implementation of other explicit powers, to create federal crimes, to confine offenders to prison, to hire guards and other prison personnel, to provide prisoners with medical care and educational training, to ensure the safety of those who may come into contact with prisoners, to ensure the public‘s safety through systems of parole and supervised release, and, where a federal prisoner‘s mental condition so requires, to confine that prisoner civilly after the expiration of his or her term of imprisonment. See United States v. Comstock, 560 U. S. 126, 136-137 (2010).
Here, under the authority granted to it by the Military
And Congress’ decision to impose such a civil requirement that would apply upon the release of an offender like Kebodeaux is eminently reasonable. Congress could reasonably conclude that registration requirements applied to federal sex offenders after their release can help protect the public from those federal sex offenders and alleviate public safety concerns. See Smith, 538 U. S., at 102-103 (sex offender registration has “a legitimate nonpunitive purpose of ‘public safety, which is advanced by alerting the public to the risk of sex offenders in their community‘“). There is evidence that recidivism rates among sex offenders are higher than the average for other types of criminals. See Dept. of Justice, Bureau of Justice Statistics, P. Langan, E. Schmitt, & M. Durose, Recidivism of Sex Offenders Released in 1994, p. 1 (Nov. 2003) (reporting that compared to non-sex offenders, released sex offenders were four times more likely to be rearrested for a sex crime, and that within the first three years following release 5.3% of released sex offenders were rearrested for a sex crime). There is also conflicting evidence on the point. Cf. R. Tewsbury, W. Jennings, & K. Zgoba, Final Report on Sex Offenders: Recidivism and Collateral Consequences (Sept. 2011) (concluding that sex offenders have relatively low rates of recidivism, and that registration
At the same time, “it is entirely reasonable for Congress to have assigned the Federal Government a special role in ensuring compliance with SORNA‘s registration requirements by federal sex offenders—persons who typically would have spent time under federal criminal supervision.” Carr v. United States, 560 U. S. 438, ____ (2010) (slip op., at 12). The Federal Government has long kept track of former federal prisoners through probation, parole, and supervised release in part to prevent further crimes thereby protecting the public against the risk of recidivism. See Parole Act, 36 Stat. 819; Probation Act, ch. 521, 43 Stat. 1259; Sentencing Reform Act of 1984, ch. II, 98 Stat. 1987. See also 1 N. Cohen, The Law of Probation and Parole §§7:3, 7:4 (2d ed. 1999) (principal purposes of postrelease conditions are to rehabilitate the convict, thus preventing
The upshot is that here Congress did not apply SORNA to an individual who had, prior to SORNA‘s enactment, been “unconditionally released,” i.e., a person who was not in “any ... special relationship with the federal government,” but rather to an individual already subject to federal registration requirements that were themselves a valid exercise of federal power under the Military Regulation and Necessary and Proper Clauses. But cf. post, at 1 (SCALIA, J., dissenting).
SORNA, enacted after Kebodeaux‘s release, somewhat modified the applicable registration requirements. In general, SORNA provided more detailed definitions of sex offenses, described in greater detail the nature of the information registrants must provide, and imposed somewhat different limits upon the length of time that registration must continue and the frequency with which offenders must update their registration.
As applied to an individual already subject to the Wetterling Act like Kebodeaux, SORNA makes few changes. In particular, SORNA modified the time limitations for a sex offender who moves to update his registration to within three business days of the move from both seven days before and seven days after the move, as required by the Texas law enforced under the Wetterling Act. Compare
SORNA‘s general changes wеre designed to make more uniform what had remained “a patchwork of federal and 50 individual state registration systems,” Reynolds v. United States, 565 U. S. ____, ____ (2012) (slip op., at 2), with “loopholes and deficiencies” that had resulted in an estimated 100,000 sex offenders becoming “missing” or
We conclude that the SORNA changes as applied to Kebodeaux fall within the scope Congress’ authority under the Military Regulation and Necessary and Proper Clauses. The Fifth Circuit‘s judgment to the contrary is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
SUPREME COURT OF THE UNITED STATES
No. 12-418
UNITED STATES, PETITIONER v. ANTHONY JAMES KEBODEAUX
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
[June 24, 2013]
CHIEF JUSTICE ROBERTS, concurring in the judgment.
I agree with the Court that Congress had the power, under the Military Regulation and Necessary and Proper Clauses of Article I, to require Anthony Kebodeaux to register as a sex offender. The majority, having established that premise and thus resolved the case before us, nevertheless goes on to discuss the general public safety benefits of the registration requirement. Ante, at 8-10. Because that analysis is beside the point in this case, I concur in the judgment only.
While serving in the Air Force, Kebodeaux violated the Uniform Code of Military Justice by having sexual relations with a minor. A special court-martial convicted him. As relevant here, that conviction had two consequences: First, Kebodeaux was sentenced to confinement for three months. And second, as the majority describes, he was required to register as a sex offender with the State in which he resided and keep that registration current; failure to do so would subject him to federal criminal penalties. Ante, at 4–6.
In the same way that Congress undoubtedly had the authority to impose the first consequence for a violation of military rules, it also had the authority to impose the second. The Constitution gives Congress the power “[t]o make Rules for the Government and Regulation of the
It is this power, the power to regulate the conduct of members of the military by imposing consequences for their violations of military law, that supports application of the federal registration obligation to Kebodeaux. As the Court explains, the Wetterling Act was in force when Kebodeaux committed the original offense, and applied to him as soon as the special court-martial rendered its verdict. See ante, at 5-6. Congress later, in enacting the Sex Offender Registration and Notification Act (SORNA), modified the registration regime in place under the Wetterling Act. But as applied to Kebodeaux here (the relevant inquiry in this as-applied challenge), those changes were insignificant; their only effect was that Kebodeaux received a day more than he could have received for the same conduct had the Wetterling Act remained in force. See ante, at 11 (describing SORNA‘s effect on Kebodeaux‘s registration obligations); compare post, at 10, n. 3 (THOMAS, J., dissenting) (discussing changes that did not affect Kebodeaux). Whatever other constitutional concerns might attach to such a change, as a question of Article I power it was permissible. Just as the Federal Government may, under the Necessary and Proper Clause, alter the conditions of a federal prisoner‘s confinement or adjust the timing and location of drug tests required of a federal convict, so too could it make
The majority says, more or less, the same thing. Ante, at 8, 11-12. But sandwiched between its discussion of the basis for Congress‘s power and its discussion of the inconsequential nature of the changes is a discussion of benefits from the registration system. Along with giving force to military regulations, the majority notes, Congress could also have “reasonably conclude[d] that registration requirements ... help protect the public from ... federal sex offenders and alleviate public safety concerns.” Ante, at 8.
Maybe so, but those consequences of the registration requirement are irrelevant for our purposes. Public safety benefits are neither necessary nor sufficient to a proper exercise of the power to regulate the military. What matters—all that matters—is that Congress could have rationally determined that “mak[ing] the civil registration requirement at issue here a consequence of Kebodeaux‘s offense” would give force to the Uniform Code of Military Justice adopted pursuant to Congress‘s power to regulate the Armed Forces. Ibid.
Ordinarily such surplusage might not warrant a separate writing. Here, however, I worry that incautious readers will think they have found in the majority opinion something they would not find in either the Constitution or any prior decision of ours: a federal police power. The danger of such confusion is heightened by the fact the Solicitor General adopted something very close to the police power argument, contending that “the federal government has greater ties to former federal sex offenders than it does to other members of the general public,” and can therefore impose restrictions on them even years after their unconditional release simply to “serve[ ] ... public-protection purposes.” Brief for United States 34–35.
I write separately to stress not only that a federal police power is immaterial to the result in this case, but also that
Our resistance to congressional assertions of such a power has deep roots. From the first, we have recognized that “the powers of the government are limited, and that its limits are not to be transcended.” McCulloch, 4 Wheat., at 420-421. Thus, while the Necessary and Proper Clause authorizes congressional action “incidental to [an enumerated] power, and conducive to its beneficial exercise,” Chief Justice Marshall was emphatic that no “great substantive and independent power” can be “implied as incidental to other powers, or used as a means of executing them.” Id., at 418, 411; see also Gibbons v. Ogden, 9 Wheat. 1, 195 (1824) (“The enumeration presupposes something not enumerated“).
It is difficult to imagine a clearer example of such a “great substantive and independent power” than the power to “help protect the public ... and alleviate public safety concerns,” ante, at 8. I find it implausible to suppose—and impossible to support—that the Framers intended to confer such authority by implication rather than expression. A power of that magnitude vеsted in the Federal Government is not “consist[ent] with the letter and spirit of the constitution,” McCulloch, supra, at 421, and thus not a “proper [means] for carrying into Execution” the enumerated powers of the Federal Government,
It makes no difference that the Federal Government would be policing people previously convicted of a federal crime—even a federal sex crime. The fact of a prior federal conviction, by itself, does not give Congress a freestanding, independent, and perpetual interest in protecting the public from the convict‘s purely intrastate conduct.
But as I have said, I do not understand the majority‘s opinion to be based on such a power. The connection to the Military Regulation Clause on which the majority relies, ante, at 8, is less attenuated, and the power it produces less substantial, than would be true of a federal police power over prior federal offenders; the power to threaten and impose particular obligations as a result of a violation of military law is not such a “grеat substantive and independent power” that the Framers’ failure to enumerate it must imply its absence.
Nevertheless, I fear that the majority‘s discussion of the public-safety benefits of the registration requirement will be mistaken for an endorsement of the Solicitor General‘s public-safety basis for the law. I accordingly concur in the judgment only.
SUPREME COURT OF THE UNITED STATES
No. 12-418
UNITED STATES, PETITIONER v. ANTHONY JAMES KEBODEAUX
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
[June 24, 2013]
JUSTICE ALITO, concurring in the judgment.
I concur in the judgment solely on the ground that the registration requirement at issue is necessary and proper to execute Congress’ power “[t]o make Rules for the Government and Regulation of the land and naval Forces.”
I join Parts I, II, and III-B of JUSTICE THOMAS‘s dissent. I do not join Part III-A because I do not agree that what is necessary and proper to enforce a statute validly enacted pursuant to an enumerated power is not itself necessary and proper to the execution of an enumerated power. It is my view that if “Congress has the authority” to act, then it also ““possesses every power needed” to make that action ““effective.” Gonzales v. Raich, 545 U. S. 1, 36 (2005) (SCALIA, J., concurring in judgment) (quoting United States v. Wrightwood Dairy Co., 315 U. S. 110, 118–119 (1942)). If I thought that SORNA‘s registration requirement were ““reasonably adapted,” Raich, supra, at 37, to carrying into execution some other, valid enactment, I would sustain it.
But it is not. The lynchpin of the Court‘s reasoning is that Kebodeaux was “subject to a federal registration requirement“—the Wetterling Act—at the time of his offense, and so the Necessary and Proper Clause “authorized Congress to modify the requirement as in SORNA and to apply the modified requirement to Kebodeaux.” Ante, at 6. That does not establish, however, that the Wetterling Act‘s registration requirement was itself a valid exercise of any federal power, or that SORNA is designed to carry the Wetterling Act into execution. The former proposition is dubious, the latter obviously untrue.
Anthony Kebodeaux was convicted under the
I
Congress enacted SORNA in 2006. SORNA requires that every “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.”
In March 1999, Anthony Kebodeaux had consensual sex with a 15-year-old girl when he was a 20-year-old Airman in the U. S. Air Force. He was convicted by a court-martial of carnal knowledge of a female under the age of 16, in violation of
II
A
The Constitution creates a Federal Government with limited powers. Congress has no powers except those specified in the Constitution. See Marbury v. Madison, 1 Cranch 137, 176 (1803) (Marshall, C. J.) (“The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution
A different default rule applies to the States. As the
The Constitution sets forth Congress’ limited powers in Article I. That Article begins by “vest[ing]” in Congress “[a]ll legislative Powers herein granted,” and then enumerates those powers in §8. The final clause of §8, the Necessary and Proper Clause, gives Congress power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
In McCulloch v. Maryland, 4 Wheat. 316 (1819), Chief
“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist[ent] with the letter and spirit of the constitution, are constitutional.” Id. at 421.
Under this formulation, a federal law is a valid exercise of Congress’ power under the Clause if it satisfies a two-part test. “First, the law must be directed toward a legitimate’ end, which McCulloch defines as one ‘within the scope of the [C]onstitution.‘” United States v. Comstock, 560 U. S. 126, 160 (2010) (THOMAS, J., dissenting) (quoting 4 Wheat., at 421). In other words, the law must be directed at “carrying into Execution” one or more of the powers delegated to the Federal Government by the Constitution.
Both parts of this test are critical. “[N]o matter how ‘necessary’ or ‘proper’ an Act of Congress may be to its objective, Congress lacks authority to legislate if the objective is anything other than ‘carrying into Execution’ one or more of the Federal Government‘s enumerated powers.” Comstock, supra, at 161 (THOMAS, J., dissenting). As applied to Kebodeaux, SORNA fails this test.
It is undisputed that no enumerated power in Article I, §8, gives Congress the power to punish sex offenders who fail to register, nor does any other provision in the Constitution vest Congress or the other branches of the Federal Government with such a power. Thus, SORNA is a valid exercise of congressional authority only if it is “necessary and proper for carrying into Execution” one or more of those federal powers enumerated in the Constitution.
In the course of this litigation, the Government has argued that Kebodeaux‘s conviction under
Nor does the Commerce Clause—the enumerated power that the Court has construed most broadly—support
Finally, Congress’ power “[t]o make Rules for the Government and Regulation of the land and naval Forces” does not support Kebodeaux‘s conviction under
Moreover, it is clear from the face of SORNA and from the Government‘s arguments that it is not directed at “carrying into Execution” any of the federal powers enumerated in the Constitution, Art. I, §8, cl. 18, but is instead aimed at protecting society from sex offenders and violent child predators. See
Protecting society from sex offenders and violent child predators is an important and laudable endeavor. See Kennedy v. Louisiana, 554 U. S. 407, 467 (2008) (ALITO, J., dissenting) (explaining that, for most Americans, sexual abuse of children is the “epitome of moral deрravity“). But “the Constitution does not vest in Congress the authority to protect society from every bad act that might befall it.” Comstock, 560 U. S., at 165 (THOMAS, J., dissenting). The power to protect society from sex offenders is part of the general police power that the Framers reserved to the States or the people. See Amdt. 10; Morrison, supra, at 617 (“[W]e can think of no better example of the police power, which the [Framers] denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims“); Lopez, supra, at 561, n. 3. (“[T]he ‘States possess primary authority for defining and enforcing the criminal law” (quoting Brecht v. Abrahamson, 507 U. S. 619, 635 (1993))).2 The Government has failed to identify any enumerated power that
In concluding otherwise, the Court entirely skips McCulloch‘s first step—determining whether the end served by SORNA is “within the scope of the [C]onstitution.” 4 Wheat., at 421. The Court appears to believe that Congress’ power “to make Rules for the ... Regulation of the land and naval Forces” justifies imposing SORNA‘s registration requirements on Kebodeaux. Ante, at 6. But not one line of the opinion explains how SORNA is directed at regulating the armed forces. Instead, the Court explains how SORNA and the Wetterling Act serve various ends that are not enumerated in the Constitution. Cf. ante, at 12 (explaining that SORNA was designed to “keep track of more offenders” and “encourage States ... to adopt its uniform standards“); ante, at 8 (explaining that the Wetterling Act was designed to “protect the public from ... federal sex offenders and alleviate public safety concerns“). The Court‘s failure to link SORNA to any enumerated power results in analysis that is untethered from the Constitution and disregards the admonition that “[t]he powers of the legislature are defined, and limited.” Marbury, 1 Cranch, at 176.
The Court‘s analysis is flawed at every step. It begins by explaining that “at the time of his offense Kebodeaux was subject to the federal Wetterling Act, an Act that imposed upon him registration requirements very similar to those that SORNA later mandated.”3 Ante, at 4. But that is beside the point. Kebodeaux was convicted of violating SORNA‘s registration requirements, not the Wetterling Act‘s, and so the relevant question is what enumerated power SORNA “carr[ies] into Execution.” “The Necessary and Proper Clause does not provide Congress with authority to enact any law simply because it furthers other laws Congress has enacted in the exercise of its incidental authority; the Clause plainly requires a showing that every federal statute ‘carr[ies] into Execution’ one or more of the Federal Government‘s enumerated powers.” Comstock, 560 U. S., at 168 (THOMAS, J., dissenting).
Nevertheless, apparently in an effort to bootstrap the Wetterling Act, the Court proceeds to determine whether the Wetterling Act (not SORNA) falls within Congress’
“authorizes Congress, in the implementation of other explicit powers, to create federal crimes, to confine offenders to prison, to hire guards and other prison personnel, to provide prisoners with medical care and educational training, to ensure the safety of those who may come into contact with prisoners, to ensure the public‘s safety through systems of parole and supervised release, and, where a federal prisoner‘s mental condition so requires, to confine that prisoner civilly after the expiration of his or her term of imprisonment.” Ante, at 7.
From these powers, the Court reasons that the Wetterling Act is valid because “Congress could reasonably conclude that registration requirements applied to federal sex offenders after their release can help protect the public from those federal sex offenders and alleviate public safety concerns.” Ante, at 8. As I explained in Comstock, however, this mode of analysis confuses the inquiry. 560 U. S. at 168-169 (THOMAS, J., dissenting). “Federal laws that criminalize conduct . . . , establish prisons for those who engage in that conduct, and set rules for the care and treatment of prisoners awaiting trial or serving a criminal sentence” are only valid if they ““Execut[e]” an enumerated power. Id., at 169. Here, for example, Congress has authority to enact Article 120(b) of the UCMJ, to enforce that provision against military personnel who violate it, and to confine them in a military prison while they are awaiting trial and serving a sentence. All of those actions “carr[y] into Execution” Congress’ power to promote order and discipline within the military by regulating the conduct of military personnel. Art. I, §8, cl. 14.
But the enumerated power that justified Kebodeaux‘s conviction does not justify requiring him to register as a sex offender now that he is a civilian. If Kebodeaux were required to register as part of his criminal sentence, then registration would help execute the power that justifies his conviction. The court-martial here, however, did not impose registration requirements at Kebodeaux‘s sentencing. See ante, at 8 (acknowledging that registration is a “civil requirement” and was “not a specific condition of Kebodeaux‘s release“). Enacted long after Kebodeaux had completed his sentence, SORNA cannot be justified as a punishment for the offense Kebodeaux committed while in the military because retroactively increasing his punishment would violate the Ex Post Facto Clause. See Peugh v. United States, 569 U. S. 530, 539 (2013) (explaining that laws that “inflic[t] a greater punishment than the law annexed to the crime, when committed” violate the Ex Post Facto Clause) (quoting Calder v. Bull, 3 Dall. 386, 390 (1798)); Peugh, supra, at 557 (THOMAS, J., dissenting) (explaining that “laws retroactively increasing the punishment were ... understood to be ex post facto at the time of the founding“). As the Court below correctly recognized, “because SORNA‘s registration requirements are civil and were enacted after Kebodeaux committed his crime, the [G]overnment cannot justify their constitutionality on the ground that they merely punish Kebodeaux for the crime he committed while in the military.” 687 F. 3d, at 239. The only justification for SORNA that the Government has advanced is protection of the public, but that justification has nothing to do with Congress’ power to regulate
Finally, the Court asserts that the Wetterling Act is reasonable because it “took state interests into account by, for the most part, requiring released federal offenders to register in accordance with state law,” and its requirements are “reasonably narrow and precise.” Ante, at 10. But the degree to which the Wetterling Act or SORNA accommodates State interests and intrudes on the lives of individuals subject to registration is irrelevant because the Supremacy Clause makes federal law supreme. See
The Court not only ignores the limitations on Congress’ power set forth in the Constitution, but it also ignores the limits that it marked just three years ago in Comstock. In that case, this Court held that Congress has power under the Necessary and Proper Clause to enact
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The Framers believed that the division of powers between the Federal Government and the States would protect individual libеrty. See New York v. United States, 505 U. S. 144, 181 (1992) (“[T]he Constitution divides authority between federal and state governments for the protection of individuals. State sovereignty is not just an end in itself: ‘Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power” (quoting Coleman v. Thompson, 501 U. S. 722, 759 (1991) (Blackmun, J., dissenting)). The decision today upsets that careful balance. I respectfully dissent.