Is Congress’s Power Under the “Necessary and Proper” Clause a General Police Power?

Anyone interested in the scope of Congress’s power under the Necessary and Proper Clause will want to study today’s opinion in U.S. v. Kibodeaux.

Justice Breyer’s majority opinion concludes that the Necessary and Proper Clause gives Congress the power to enact the registration requirements set forth in the federal Sex Offender Registration and Notification Act (SORNA) and to apply those requirements to a “federal offender who had completed his sentence prior to the time of SORNA’s enactment.”

In his opinion concurring in the judgment only, the Chief Justice relies heavily on Congress’s power to regulate the military, as the offender was convicted by a special court-martial of his sex crime while serving in the Air Force. (As SORNA applies to federal sex offenses generally, and not just those committed by members of the military, I don’t readily understand how Congress’s power to regulate the military, even combined with the Necessary and Proper Clause, can justify SORNA.) The Chief expresses his “worry that incautious readers will think that 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.” Cautious readers may have that same concern. That may be why Justice Alito also concurs only in the judgment. And in his dissent Justice Thomas, joined by Justice Scalia, complains that SORNA “usurps the general police power vested in the States.”

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