Donna Anderson
April 8, 2013

On April 17, 2013, The Supreme Court of the United States will be hearing a case which could have far-reaching effects. In the case of United States v. Anthony James Kebodeaux, the central issue is: Can the United States use the Necessary and Proper Clause to assert perpetual jurisdiction over American citizens and control their lives from “cradle to grave?”

In 1999, 21-year-old Anthony Kebodeaux was convicted of having consensual sex with a 15-year-old girl and sentenced to 3 months in prison. After serving his sentence, Kebodeaux was released from federal custody, free from any post-release parole or probation requirements, and was no longer a member of the military. Essentially, Kebodeaux was a free man with no further ties to the federal government that would justify his continued and indefinite supervision.

At the time of his release in 1999 Texas state law required that sex offenders register with local authorities whenever they moved within the state or changed jobs. Even though Kebodeaux had been released unconditionally, he followed the law and registered each time he moved.

In 2008 Kebodeaux moved from San Antonio to El Paso, Texas, an intrastate move, but this time he failed to update his address within the three-day window required by the federal Sex Offender Registration and Notification Act (SORNA), and he was sentenced to one year and one day in federal prison.

The only problem is – SORNA wasn’t enacted until 2006, seven years after Kebodeaux’s unconditional release. The state of Texas might have chosen to prosecute Kebodeaux for failing to register in El Paso, however, given the nature of his offense, the length of time that had passed and the fact that he was unconditionally released, Texas really wasn’t concerned that Kebodeaux missed his three-day deadline.

But, should the federal government be able to step in and, using a law that wasn’t even on the books, reach into a state and assert jurisdiction over an individual?

The feds say yes, and they cite the Commerce and Necessary and Proper Clauses of the U.S. Constitution to back up their argument.

Article 1, Section 8 of the United States Constitution grants Congress the power to regulate interstate commerce. At the time of his arrest, federal authorities claimed they had the right to override Texas authorities because it was “necessary and proper” in order to protect the citizens of the United States. Kebodeaux could, theoretically, move from Texas to another state, which falls under the Commerce clause, although it’s quite a stretch. And his flagrant disregard for SORNA – a law which wasn’t even in effect when he was released unconditionally – made him a threat to citizens all across America.

Members of The Cato Institute say no and, joined by Ilya Somin, Professor of Law at George Mason University School of Law, they’ve filed an amicus brief challenging the Supreme Court to decide if Congress has unlimited jurisdiction and the power to “regulate an individual from cradle to grave.”

The Cato Institute, founded in 1977, is a public policy research organization “dedicated to the principles of individual liberty, limited government, free markets and peace. Its scholars and analysts conduct independent, nonpartisan research on a wide range of policy issues.” In 2012 Cato filed a successful brief regarding Obamacare and argued that the government cannot use the Commerce and Necessary and Proper Clauses to compel someone to purchase health insurance.

Section 8 of the Constitution was drafted to limit the powers of Congress, and in most cases it’s very explicit. However, the “Necessary and Proper” clause of Article 8 of the U.S. Constitution almost erases those limitations and gives Congress free rein. The clause gives Congress the power “To 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.”

Cato’s brief says the Necessary and Proper clause is a “back door to unconstrained federal power, and it is essential for this Court to enforce the requirement of propriety.” Further, the brief states that the government claims their assertion of power in this case is modest because it’s limited to people with “greater ties” to federal jurisdiction.

The problem, says Cato, is that there are huge numbers of people who have ties to federal jurisdiction which are just as “great” or greater than Kebodeaux’s. If allowed to stand, this “unconstrained federal authority to register, regulate, and detain all of these persons clearly constitutes a new great and independent realm of federal power.”

Kebodeaux served his additional one year and one day in federal prison, but Cato argues that it was an unlawful conviction – SORNA was not even a law at the time of his original conviction, Kebodeaux did not move out of Texas, and he’d had been released unconditionally. If Kebodeaux’s federal conviction is allowed to stand anyone in America who’s ever been in federal custody, or otherwise in federal jurisdiction, could be subject to this unlimited abuse of power.

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