Tuesday, October 15, 2013

Although recognizing that in Shenandoah we upheld the constitutionality of § 2250 under the Commerce Clause, Pendleton argues that (1) § 16913 is an unconstitutional exercise of Congress‟s Commerce Clause power and (2) because lack of compliance with § 16913 is a necessary element of § 2250, § 2250 is also unconstitutional.  “It has been long established Congress may forbid or punish use of interstate commerce „as an agency to promote immorality, dishonesty or the spread of any evil or harm to the people of other states from the state of origin.‟” United States v. May, 535 F.3d 912, 921 (8th Cir. 2008) (quoting Brooks v. United States, 267 U.S. 432, 436 (1925)), quoted in Shenandoah, 595 F.3d at 161. Furthermore, “„the authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question.‟” Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256 (1964) (quoting Caminetti v. United States, 242 U.S. 470, 491 (1917)), quoted in United States v. Lopez, 514 U.S. 549, 558 (1995).     In Lopez, the Supreme Court explained that it had identified three broad categories of activity that Congress may regulate under its commerce power. First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress‟ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce. 514 U.S. at 558-59 (citations omitted). In Shenandoah, we held that SORNA “derives its authority from each prong of Lopez, and most specifically” the first and

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