United States v. Kebodeaux (12-418)
argument 12-418United States v. Kebodeaux
Supreme Court of the United States
58 min
6 speakers
8 chapters
transcribed 6 days ago
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What constitutional authority does Congress have to impose civil registration for federal sex offenders?
We'll hear argument first this morning in Case 12-418, United States v. Kibidoo. Mr. Drebin.
Mr. Chief Justice, and may it please the Court, convicted sex offenders pose a serious threat to public safety. When those convictions are entered under federal law, Congress has the authority to impose both a criminal and a civil sanction for that conduct in order to protect the public. The Fifth Circuit in this case applied a per se rule that once respondent had completed his military sentence, Congress lost authority to apply a civil sanction for that violation of federal law. That per se rule is wrong. Nothing in Article I prevents Congress from legislating retroactively with respect to civil remedies for past violations of federal law. The ex post facto clause, the due process clause, and Article I analysis under the necessary and proper clause all provide some degree of protection against retroactive provisions, but no per se rule bars Congress from applying sex offender registration requirements, which this Court has held to be civil remedies not barred by the ex post facto clause
to past federal criminal convictions.
Now, what is the limit of that power? How — for any federal conviction, whether it's related to sex offense or anything else, Congress can impose any kind of registration requirements?
Well, certainly, Justice
Sotomayor — Would it ask every convicted federal felon to come in for a DNA test? Because we know that people who have been convicted of a crime are more likely to be recidivists.
Well, Justice Sotomayor, there are independent constitutional limits both outside of Article I and within Article I that mean that I will answer your question. No, it's not the case that my position today means there are no limits — There are limits.
So what is the limit? Is it just safety — it can't be just safety of the public because you just said that it doesn't apply to recidivist federal offenders generally.
The principal limitation on retroactive legislation is the ex post facto clause. Indeed, there would have been no need for an ex post facto clause. if the Fifth Circuit were
correct. I don't understand it. I just posited a civil registration for federal offenders of any kind. That's not exposed. Fact or under your theory.
So if the Court agrees that it's not a punitive measure and it is a remedial measure
— Well, I don't know if I agree with that, but accepting that hypothetically
— Well, if you don't agree with it, then you'll be going on the ex post facto clause, and you won't be getting to
Article 1. No, you know, that's settled law. Whether it's right or wrong is a different issue.
It is settled law, and that means that sex offender registration provisions aren't punitive. The question here is, are they within Article 1? And the Court in United States v. Comstock went through an elaborate necessary and proper clause analysis.
Well, in Comstock, it was very different than the situation here because the analysis was that the Federal Government basically was the source of the problem in incarcerating sex offenders away from the State so that no State felt an obligation to do something with the problem of their release. You don't have anything of that sort here.
No. This provision, Mr. Chief Justice, rests on a different analysis than Comstock. In Comstock, The problem was caused by federal custody that, as Your Honor has said, broke the relationship between the individual and some state that might take cognizance of him for purposes of sex offender civil commitment. The basis for the statute in Comstock was that people in federal custody, regardless of the nature of their prior convictions, might pose threats if released. The basis for the statute in this case is is not that the individual was in federal custody. Federal custody is irrelevant to it. The basis for the statute in this case is that this is a sex offender in violation of federal law, and Congress has the authority to impose, as was done in this case, criminal punishment, but it also has the authority to impose civil regulatory sanctions.
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Chapters
8 chapters
1
What constitutional authority does Congress have to impose civil registration for federal sex offenders?
0:01–9:00
2
How does the Fifth Circuit’s per‑se rule on post‑military sentencing differ from the government’s argument?
9:00–16:56
3
Why does the ex post facto clause not bar civil sex‑offender registration requirements?
16:56–24:35
4
What is the relevance of United States v. Comstock to the Kebodeaux case?
24:35–32:50
5
How does the Necessary and Proper Clause support Congress’s power to impose registration after a conviction?
32:50–39:50
6
When can Congress impose civil sanctions after a federal sentence has ended?
39:50–47:09
7
What limits exist on Congress’s ability to require lifetime registration for former military offenders?
47:09–52:34
8
How might the Court’s decision affect future civil‑criminal collateral consequences?
52:34–58:55