The Adam Walsh Act and the failed promise of administrative federalism

George Washington Law Review

Volumn 78, Issue 5, 2010, Pages 993-1013

  Logan, Wayne A ^a  

^a FLORIDA STATE UNIVERSITY   (United States)

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EID: 77956082187     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (163)

1. See ROBERT F. NAGEL, THE IMPLOSION OF AMERICAN FEDERALISM 38-39 (2001).
2. Ruth Colker & James J. Brudney, Dissing Congress, 100 MICH. L. REV. 80, 81-82 (2001).
3. See Glenn H. Reynolds & Brannon P. Denning, Lower Court Readings of Lopez, or What if the Supreme Court Held a Constitutional Revolution and Nobody Came?, 2000 WIS. L. REV. 369, 379-91 (surveying caselaw showing the modest effect of Lopez in promoting successful challenges to federal exercises of Commerce Clause authority).
4. See Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543, 546-47 (1954) (maintaining that state election of federal representatives serves as a political check on interference with states' rights).
5. see also Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215, 223-27 (2000) (updating Wechsler's seminal article and discussing the failure of political checks to ensure protection of state authority).
6. See Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 TEX. L. REV. 1321, 1379-90 (2001) (noting congressional attempts to evade constitutional constraints and requirements in lawmaking).
7. See INS v. Chadha, 462 U.S. 919, 985-86 (1983) (White, J., dissenting) ("For some time, the sheer amount of law . . . made by the [administrative] agencies has far outnumbered the lawmaking engaged in by Congress through the traditional process.").
8. See, e.g., Lisa Schultz Bressman, Chevron 's Mistake, 58 DUKE L.J. 549, 610 (2009).
9. Scott A. Keller, How Courts Can Protect State Autonomy from Federal Administrative Encroachment, 82 S. CAL. L. REV. 45, 57-58 (2008).
10. Ernest A. Young, Executive Preemption, 102 NW. U. L. REV. 869, 869 (2008).
11. see also Egelhoff v. Egelhoff, 532 U.S. 141, 160-61 (2001) (Breyer, J., dissenting) (asserting that preemption cases present "the true test of federalisfm]").
12. Gillian E. Metzger, Administrative Law as the New Federalism, 57 DUKE L.J. 2023, 2023 (2008).
13. see also id. at 2109 ("[Administrative law has significant potential to advance state interests within the framework of the national administrative state.").
14. accord Catherine M. Sharkey, Federalism Accountability: "Agency-Forcing" Measures, 58 DUKE L.J. 2125, 2153 (2009) ("With respect to promoting federalism values, 'agencies ... emerge as the institutional actor of choice, to the extent that they effectively represent state interests in our modern administrative state.'" (citation omitted)).
15. See Geier v. Am. Honda Motor Co., 529 U.S. 861, 908 (2000) (Stevens, J., joined by Souter, Thomas, and Ginsburg, JJ., dissenting) ("Unlike Congress, administrative agencies are clearly not designed to represent the interests of States ... .").
16. See, e.g., Metzger, supra note 8, at 2085 ("[S]urprisingly little empirical evidence exists on federal-state interactions in rulemaking and other procedural contexts of particular relevance to administrative law.").
17. Adam Walsh Child Protection and Safety Act of 2006, 42 U.S.C. §§ 16901-16991 (2006).
18. Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, § 102, 120 Stat. 587, 590 (2006) (codified at 42 U.S.C. § 16901).
19. Larry Kramer, Understanding Federalism, 47 VAND. L. REV. 1485, 1544 (1994).
20. see also Brian Galle, Getting Spending: How to Replace Clear Statement Rules with Clear Thinking About Conditional Grants of Federal Funds, 37 CONN. L. REV. 155, 193 (2004) (asserting that "federal dependence on the knowledge and resources of cooperating state regulators" ensures a degree of federal agency sensitivity to state interests).
21. Roderick M. Hills, Jr., The Eleventh Amendment as Curb on Bureaucratic Power, 53 STAN. L. REV. 1225, 1227 (2001) (describing "picket-fence federalism," whereby "state and federal agency experts within the same specialty-the 'posts' in the 'fence'-often share more in common with each other than they do with the level of government by which they are employed").
22. For earlier recognitions of this phenomenon, see DANIEL J. ELAZAR, AMERICAN FEDERALISM: A VIEW FROM THE STATES 162 (2d ed. 1972) (noting that because federal authorities rely on states to achieve their policy goals, they heed their concerns and "are prepared to make concessions to their state counterparts").
23. MORTON GRODZINS, THE AMERICAN SYSTEM: A NEW VIEW OF GOVERNMENT IN THE UNITED STATES 75-80 (1966) (discussing state/federal "sharing through proximity," using examples of various federal regulatory agencies).
24. Nina A. Mendelson, Chevron and Preemption, 102 MICH. L. REV. 737, 741, 775-78 (2004).
25. See, e.g., Metzger, supra note 8, at 2084-85.
26. 5 U.S.C. § 553 (2006).
27. Exec. Order No. 13, 132, 64 Fed. Reg. 43, 255 (Aug. 10, 1999), reprinted in 5 U.S.C. § 601 (2006). The Order, inter alia, discourages "one-size-fits-all approaches to public policy problems" and urges deference "to the States when taking action that affects the policymaking discretion of the States .. . ." Id. at 43, 256.
28. Mendelson, supra note 14, at 777.
29. see also Peter H. Schuck, Delegation and Democracy: Comments on David Schoenbrod, 20 CARDOZO L. REV. 775, 781-82 (1999) (regarding agency rulemaking as the most "accessible," "meaningful," and "effective" avenue for public input).
30. Brian Galle & Mark Seidenfeld, Administrative Law's Federalism: Preemption, Delegation, and Agencies at the Edge of Federal Power, 57 Duke L.J. 1933, 2020 (2008).
31. See The Federalist No. 45, at 292-93 (James Madison) (Clinton Rossiter ed., 1961) (defining state police powers as extending "to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people....").
32. see also Santiago Legarre, The Historical Background of the Police Power, 9 U. PA. J. CONST. L. 745, 747-48 (2007) ("American federalism cannot be fully understood without reference to the police power, for ... 'police power' was the name Americans chose in order to designate the whole range of legislative power not delegated to the federal government and thus retained by the states." (footnote omitted)).
33. See, e.g.. Screws v. United States, 325 U.S. 91, 109 (1945) ("Our national government is one of delegated powers alone. Under our federal system the administration of criminal justice rests with the States except as Congress, acting within the scope of those delegated powers, has created offenses against the United States." (citation omitted)).
34. See WAYNE A. LOGAN, KNOWLEDGE AS POWER: CRIMINAL REGISTRATION AND COMMUNITY NOTIFICATION LAWS IN AMERICA 20-84 (2009). Modern-era registration laws were first enacted by local governments around Los Angeles in the early 1930s and sought to monitor "gangsters" feared to be flooding the area from Midwestern and Eastern cities. Id. at 22. California enacted the first statewide registration law in 1947, targeting convicted sex offenders. Id. at 30. Subsequent years witnessed only modest interest among states and localities. Id. at 46. Things changed in 1990 when Washington State, reacting to the horrific sexual mutilation of a child by a released sex offender, enacted the nation's first community notification provision, which permits registrants' identifying information to be disseminated to the communities in which they live. Id. at 49-51. Since then, and especially after the 1994 rape and murder of seven-year-old Megan Kanka in New Jersey, the laws have enjoyed nationwide force. Id. at 54-55.
35. For a fuller account of federal involvement in the area, see Wayne A. Logan, Criminal Justice Federalism and National Sex Offender Policy, 6 OHIO ST. J. CRIM. L. 51 (2008).
36. See id. at 60-84.
37. 139 CONG. REC. 31, 251 (1993) (statement of Rep. Sensenbrenner).
38. Id. (statement of Rep. Ramstad).
39. Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, 42 U.S.C. § 14071 (2006).
40. See Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, Pub. L. No. 103-322, § 170101, 108 Stat. 1796, 2042 (1994) (codified as amended at 42 U.S.C. § 14071(e)). The ten percent figure marked a significant decrease from prior bills. As originally proposed by Senator David Durenberger (R-Minn.) in 1991, the legislation required that noncompliant states be totally barred from receiving Byrne Grant funds, and the proposed loss was later lowered to twenty-five percent in 1991.
41. See Logan, supra note 23, at 66 n.87.
42. Megan's Law, 42 U.S.C. § 14071(d) (2006).
43. See Megan's Law, Pub. L. No. 101-145, §§ 1-2, 110 Stat. 1345, 1345 (1996) (codified as amended at 42 U.S.C. § 14071(d)(2) (1996)).
44. 142 CONG. REC. 10, 310-11 (1996) (statement of Rep. McCollum).
45. See Minor and Miscellaneous Bills (Part 2): Hearing on H.R. 1143, H.R. 1144, H.R. 1145, H.R. 2092, H.R. 2137, H.R. 2453, H.R. 2587, H.R. 2607, H.R. 2641, H.R. 2650, H.R. 2803, H.R. 2804, H.R. 2974, H.R. 2980, H.R. 2996, Before the Subcomm. on Crime of the H. Comm. on the Judiciary, 104th Cong. 98-100 (1996) (statement of Rep. Zimmer).
46. See Logan, supra note 23, at 69.
47. See Megan's Law § 2, 110 Stat, at 1345.
48. Logan, supra note 22, at 65.
49. Logan, supra note 23, at 72-74.
50. Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (codified at 42 U.S.C. §§ 16901-16991 (2006)).
51. See, e.g., H.R. Rep. No. 109-218, pt. 1, at 23-24 (2005).
52. 152 Conq. Rec. S8018 (daily ed. July 20, 2006) (statement of Sen. Allen).
53. 152 Cono. Rec. S8022 (daily ed. July 20, 2006) (statement of Sen. DeWine).
54. 151 Cong. Rec. H7889 (daily ed. Sept. 14, 2005) (statement of Rep. Green). As Senator Orrin Hatch (R-Utah), a co-sponsor of the bill, explained, the AWA created "uniform standards for the registration of sex offenders," emphasizing that it was critical to sew together the patch-work quilt of 50 different State attempts to identify and keep track of sex offenders.... Laws regarding registration for sex offenders have not been consistent from State to State[;] now all States will lock arms and present a unified front in the battle to protect children. Web sites that have been weak in the past, due to weak laws and haphazard updating and based on inaccurate information, will now be accurate, updated, and useful for finding sex offenders. 152 Cono. Rec. S8012, S8013 (daily ed. July 20, 2006) (statement of Sen. Hatch). Ernie Allen, President and CEO of the National Center for Missing and Exploited Children, testifying before the House Judiciary Committee, emphasized that "[t]he amount of protection a child is given shouldn't depend on the state in which that child lives. There is clearly a need for more uniformity among State programs of community notification of sex offenders." Protecting Our Nation's Children from Sexual Predators and Violent Criminals: What Needs to Be Done? Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 109th Cong. 19 (2005) (statement of Ernie Allen, President and CEO, The National Center for Missing and Exploited Children). A "seamless, coordinated, uniform system that works" was needed, and states should disclose information on all registrants, not merely those deemed most likely to recidivate. Id.
55. 42 U.S.C. § 16901 (2006).
56. For a full discussion of these and other changes required by the AWA, see Logan, supra note 23, at 76-80.
57. See 42 U.S.C. §§ 16912(a), 16924(a).
58. The AWA provides that jurisdictions have until one year after the Attorney General makes available computer software for the establishment and operation of "uniform sex offender registries and Internet sites," if the software is available later than July 2009. Id. § 16923(a). The Attorney General is also authorized to permit up to two one-year extensions of the initial July 2009 deadline. Id. § 16924(b). As of this writing, the software is not available and Justice has extended the compliance deadline to July 2010. Att'y Gen. Order No. 3081-2009 (May 26, 2009), available at http://www.ojp.usdoj.gov/smart/pdfs/sornaorder.pdf.
59. Technically, Congress directed the Office of the Attorney General and a new regulatory entity under its control, the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking ("SMART"), to create and administer the guidelines. See 42 U.S.C. § 16912(b) (delegating authority to "issue guidelines and regulations to interpret and implement" the AWA's provisions); id. § 16945(a) (creating and specifying the duties of SMART). Here, for ease of reference, reference is made to Justice.)
60. See id. § 16913(d) ("[Justice] shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders ...."). In addition, Congress delegated authority to Justice on several less significant issues. See id. § 16914(a)(7) (providing authority to expand the scope of information, specified by the AWA, that registrants must provide state authorities for inclusion in registries); id. § 16918(b)(4) (providing authority to augment the kinds of information falling under the AWA's list of "mandatory exemptions" from community notification (e.g., the Social Security numbers of registrants)).
61. See infra notes 61-73 and accompanying text (discussing concerns raised by states over federal imposition of retroactivity requirement).
62. Applicability of the Sex Offender Registration and Notification Act, 72 Fed. Reg. 8, 894, 8, 895 (Feb. 28, 2007) (codified at 28 C.F.R. pt. 72).
63. Id. at 8, 896 ("The current rulemaking serves the ... immediately necessary purpose of foreclosing any dispute as to whether [the AWA] is applicable where the conviction for the predicate sex offense occurred prior to the enactment of [the AWA]. This issue is of fundamental importance to the initial operation of [the AWA], and to its practical scope for many years, since it determines the applicability of [the AWA's] requirements to virtually the entire existing sex offender population.").
64. Id.
65. See id. at 8, 897.
66. Id. at 8, 896.
67. Id. (quoting 5 U.S.C. § 553(b)(B), (d)(3) (2006)).
68. Applicability of the Sex Offender Registration and Notification Act, 72 Fed. Reg. 8, 894, 8, 896-97 (Feb. 28, 2007) (codified at 28 C.F.R. pt. 72). The explanation, however, was not entirely convincing, given that the provision was to take effect almost seven months to the day after the AWA's enactment and almost thirteen years after the Jacob Wetterling Act, not to mention the near two-year pendency of the AWA itself and the reality that persons retroactively targeted possibly had not committed a sexual offense for many years. Indeed, given the destabilizing effects of registration and notification (the latter in particular) on individuals, it could be asserted that retroactivity actually increased public safety concerns.
69. For discussion of the research on such effects, see Wayne A. Logan, Federal Habeas in the Information Age, 85 MINN. L. REV. 147, 187-89 (2000). Of late, federal circuits have disagreed over whether Justice's AWA rulemaking satisfied the "good cause" exceptions relative to a provision in the AWA making it a federal felony to cross state lines without registering.
70. Compare United States v. Cain, 583 F.3d 408, 420-24 (6th Cir. 2009) (finding the standard not satisfied, by a 2-1 vote), with United States v. Gould, 568 F.3d 459, 469-70 (4th Cir. 2009) (finding the standard satisfied, by a 2-1 vote).
71. United States v. Dixon, 551 F.3d 578, 583 (7th Cir. 2008) (unanimously condemning the claim as "frivolous"), cert, granted sub nom.
72. Can v. United States, 130 S. Ct. 47 (2009). One aspect of this dispute concerns whether courts should examine the agency resort to "good cause" under a de novo or " 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law' " standard of review. See Cain, 583 F.3d at 434 n.4 (Griffin, J., dissenting) (quoting 5 U.S.C. § 706(2)(A) (2006)). As the Sixth Circuit concluded in Cain, finding a lack of good cause has particular persuasive appeal given the heavy burden traditionally thought required to invoke the exception and the importance of advance notice vis-à-vis criminal prohibitions. Id. at 423.
73. See Logan, supra note 23, at 76-82.
74. Applicability of the Sex Offender Registration and Notification Act, 72 Fed. Reg. at 8, 897.
75. Id.
76. See id. at 8, 895.
77. See Telephone Interview with Kay Cohen, Deputy Executive Dir., Nat'l Criminal Justice Ass'n (Apr. 17, 2009) (transcript on file with author); Telephone Interview with Susan Parnas Frederick, Fed. Affairs Counsel, Nat'l Conference of State Legislatures (Apr. 17, 2009) (transcript on file with author).
78. see also Letter from Joe A. Garcia, President, Nat'l Cong, of Am. Indians, to David J. Karp, Office of Legal Policy (Apr. 30, 2007), available at http://www.ncai.org/ncai/resource/documents/governance/Adam-Walsh-Act/ interim-rule-comments-final.pdf, at 3 ("Indian tribes were not consulted during the development of the Adam Walsh Act or the interim rule, and have not been asked to give input into other guidelines that are currently being developed by [Justice].").
79. See The National Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg. 38, 030, 38, 030-32 (July 2, 2008).
80. Letter from Susan Parnas Frederick, Fed. Affairs Counsel, Nat'l Conference of State Legislatures, to David Karp, Senior Counsel, Office of Legal Policy, U.S. Dep't of Justice (Apr. 23, 2007) (on file with author).
81. See United States v. Gould, 568 F.3d 459, 477 (4th Or. 2009) (Michael, J., dissenting).
82. See The National Guidelines for Sex Offender Registration and Notification, 72 Fed. Reg. 30, 209, 30, 210-13 (proposed May 30, 2007).
83. Id. at 30, 228.
84. Letter from Brent D. Reinke, Chairman, Idaho Criminal Justice Comm'n, to Laura L. Rogers, Dir., SMART Office, Office of Justice Programs, U.S. Dep't of Justice (July 31, 2007), available at http://www.ojp.usdoj.gov/smart/pdfs/ guideline-comments.pdf, at 622-23.
85. Letter from Denise O'Donnell, Comm'r, N.Y. State Div. of Criminal Justice Servs. et al., to Laura L. Rogers, Dir., SMART Office, Office of Justice Programs, U.S. Dep't of Justice (July 31, 2007), available at http://www.ojp.usdoj.gov/smart/pdfs/guidelme-comments.pdf, at 740-44.
86. Id. Other states voiced similar concerns over the increased burden associated with retroactivity. See E-mail from Diane Sherman, Mich. Criminal Justice Info. Ctr., Mich. Dep't of State Police, to SMART Office, Office of Justice Programs, U.S. Dep't of Justice (Aug. 2, 2007, 5:52 PM), available at http://www.ojp.usdoj.gov/smart/pdfs/guideline-comments.pdf, at 619-20 ("Retroactivity puts a work load burden on states. Much research will be needed on old laws to determine whether they apply to ... registration.").
87. E-mail from Janet Neely, Cal. Deputy Attorney Gen., to SMART Office, Office of Justice Programs, U.S. Dep't of Justice (July 26, 2007, 7:46 PM), available at http://www.ojp.usdoj.gov/smart/pdfs/guideline-comments.pdf, at 727-39 (asserting that creation of a database containing superseded statutes of California and other states "is not a feasible project").
88. Letter from W. S. Flaherty, Superintendent, Va. State Police, to Laura L. Rogers, Dir., SMART Office, Office of Justice Programs, U.S. Dep't of Justice (July 31, 2007), available at http://ww.ojp.usdoj.gov/smart/pdfs/guidelme- comments.pdf, at 601-05.
89. Letter from Carl Tubbesing, Deputy Executive Dir., Nat'l Conference of State Legislatures, to Laura L. Rogers, Dir., SMART Office, Office of Justice Programs, U.S. Dep't of Justice (July 30, 2007), available at http://www.ojp.usdoj.gov/smart/pdfs/guideune-comments.pdf, at 590-95.
90. NAT'L CONFERENCE OF STATE LEGISLATURES, 2008-2009 POLICIES: LAW AND CRIMINAL JUSTICE COMMITTEE, http://www.ncsl.org/statefed/lawandj.htm (last visited May 10, 2010).
91. The National Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg. 38, 030 (July 2, 2008).
92. See id. Federal policy on the parameters of the registration of juveniles is a narrow exception. Apparently in response to state objections based on a technical reading of the AWA that would require registration of juveniles for less serious offenses (such as a fourteen-year-old having sex with an eleven-year-old), the Final Guidelines deviate from the AWA. In apparent violation of its required mandate to interpret, not prescribe, registration standards, Justice devised a meaning that was less onerous than the one tied to the "aggravated sexual abuse" standard prescribed by the AWA itself. See id. at 38, 040-41.
93. See generally id.
94. Id. at 38, 035-36.
95. Id. at 38, 036.
96. see also id. at 38, 037 (rejecting the view that the AWA represents "mere advice" to states).
97. See, e.g., Galle & Seidenfeld, supra note 19, at 1957 ("Representatives of interest groups ... do have access to the staff members in each of the offices represented on a rulemaking team." (citation omitted)).
98. Mendelson, supra note 14, at 774 ("Although agencies may not have incorporated the more abstract benefits of 'federalism'... [they] do appear to have systematically consulted with states. Thus, they may be honoring state interests as states have expressed them.").
99. See, e.g., Galle & Seidenfeld, supra note 19, at 1973 ("The states have proven to be effective at influencing agencies to preserve their state prerogatives."); Metzger, supra note 8, at 2085 n.228 ("Anecdotal evidence also exists of notice-and-comment requirements having a state-protective impact.").
100. See N.J. Dep't of Envtl. Prot. v. EPA, 626 F.2d 1038, 1049-50 (D.C. Or. 1980) (noting the importance of "affected parties hav[ing] an opportunity to participate in and influence agency decision making at an early stage, when the agency is more likely to give real consideration to alternative ideas").
101. see also Cornelius M. Kerwin, Rulemakino: How Government Agencies Write Law and Make Policy 79-80 (3d ed. 2003).
102. See supra notes 69-73 and accompanying text.
103. See Galle & Seidenfeld, supra note 19, at 1976 ("[A]gencies are well suited for evaluating the benefits of both localism and the need for experimenting within the programs they regulate.").
104. See supra notes 70-73 and accompanying text.
105. See, e.g., Mariano-Florentino Cuellar, Rethinking Regulatory Democracy, 57 ADMIN. L. REV. 411, 424-25 (2005).
106. Stephanie Stern, Cognitive Consistency: Theory Maintenance and Administrative Rulemaking, 63 U. PITT. L. REV. 589, 621 (2002).
107. See, e.g., Nina Mendelson, A Presumption Against Agency Preemption, 102 NW. U. L. REV. 695, 719-22 (2008).
108. Metzger, supra note 8, at 2085-86.
109. See supra notes 63-68 and accompanying text.
110. see also Logan, supra note 22, at 109-13 (surveying the impact of registration and notification on state resources).
111. See Logan, supra note 23, at 112-14 (discussing the AWA legislative process).
112. See Logan, supra note 22, at 109-33 (surveying limited research done on the effects and consequences of registration and notification).
113. See Logan, supra note 23, at 114. Speaking to this symmetry, a member of the Connecticut General Assembly offered in 1998 that federal directives had "more to do with the needs of the home States of the various congressional committee chairs than they do with our States. I think this has been a source of great frustration for many State legislators around the country. ... 'One-size-fits-all' [fjederal requirements really do not apply ...." Mike Lawlor, Representative, Conn. Gen. Assembly, Creating Effective Sex Offender Legislation Requires Collaboration Between Lawmakers and Justice Agencies, Paper Presented at the Bureau of Justice Statistics/SEARCH Conference: National Conference on Sex Offender Registries (Apr. 1998), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/Ncsor.pdf, at 86.
114. The only evidence of congressional willingness to actually consider state experience and expertise came after the fact, with a directive that the Attorney General assemble a task force to assess competing registrant classification approaches, consisting of persons who "represent national, State, and local interests" and possess expertise in relevant academic and experiential areas. See Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, § 637, 120 Stat. 587, 646 (codified at 42 U.S.C. §§ 16901-16991 (2006)).
115. 42 U.S.C. § 16925(b)(1) (2006).
116. Id. § 16925(b)(2).
117. Id.
118. The National Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg. 38, 030, 38, 041 (July 2, 2008) (emphasis added).
119. 42 U.S.C. § 16925(a).
120. See id. § 16925(c).
121. See, e.g., United States v. Madera, 528 F.3d 852, 857 (11th Cir. 2008).
122. United States v. Samuels, 543 F. Supp. 2d 669, 677-78 (E.D. Ky. 2008). For an argument against the current desuetude of the nondelegation doctrine relative to criminal justice authority in particular, see Logan, supra note 23, at 115 n.367.
123. See supra note 52 (citing varied circuit outcomes relative to whether the APA's "good cause" standard to excuse notice and comment was satisfied). Individuals can, of course, mount constitutional challenges-for instance, that retroactive application of the AWA violates ex post facto principles. Alaska's pre-AWA regime was deemed nonpunitive in character and was upheld against ex post facto challenge in Smith v. Doe, 538 U.S. 84 (2003). Conceivably, the AWA's more stringent requirements could at some point result in a successful challenge, but would fail to redress the concern addressed here.
124. Cf. Rachel E. Barkow, Separation of Powers and the Criminal Law, 58 Stan. L. Rev. 989, 993 (2006) (noting that individual constitutional claims "act as poor safeguards against structural abuses and inequities").
125. Perhaps the most public expression of state displeasure occurred in March 2009, when Emma Devillier, a Louisiana Assistant Attorney General and Chief of the Sexual Predator Unit, vigorously condemned the rulemaking process before a House Judiciary Committee Hearing on Barriers to Implementation of the Sex Offender Registration and Notification Act. Devillier criticized Justice for, inter alia, its rigid, unrealistic interpretation of the AWA's "substantial compliance" requirement; the major systemic consequences of the retroactivity rule; and the guidelines' failure to take into account varied state criminal laws in their definitions. Devillier testified that [the AWA's] offense-based (at least as interpreted by [Justice]), retroactive system is over inclusive, overly burdensome on the state, exorbitantly costly, and will actually do more to erode community safety than to strengthen it. This is generally true, I am advised, not just for Louisiana but for most states. To ensure that federal legislation ... is based on sound public policy and that it will be effectively implemented, all stakeholders must be brought to the table. Sex Offender Notification and Registration Act (SORNA): Barriers to Timely Compliance by States: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 111th Cong. 1 (2009) (statement of Emma J. Devillier, Assistant Att'y Gen., La.).
126. see also, e.g., Diane Jennings, States Wrestle with How to Fund Federal Sex Offender Law, Dallas Morning News, Dec. 23, 2008, at 1A (discussing dissatisfaction among Texas legislators over retroactivity policy).
127. See Logan, supra note 23, at 83-84 (surveying media reports indicating that many states will not adopt AWA requirements due to costs and ideological opposition).
128. see also Abigail Goldman, Sex Offender Act Might Not Be Worth Its Cost to Nevada, Las Vegas Sun, Feb. 15, 2009, at 1 (discussing sentiment in Nevada). Recently, the California Sex Offender Management Board, which oversees the nation's largest registration and notification system, issued the following statement: The California State Legislature, Governor and citizens should elect not to come into compliance with the Adam Walsh Act. Current effective California state law and practice ... is more consistent with evidence-based practice that can demonstrate real public policy outcomes. Instead of incurring the substantial-and un-reimbursed-costs associated with the Adam Walsh Act, California should absorb the comparatively small loss of federal funds that would result from not accepting the very costly and ill-advised changes to state law and policy required by the Act.... CAL. SEX OFFENDER MGMT. BD. ADAM WALSH ACT: STATEMENT OF POSITION (2009), available at http://www.opd.ohio.gov/AWA- Information/AWA-CA-SOMB-SORNA-Position-Paper.pdf.
129. See supra notes 63-68 and accompanying text; see also, e.g., Abby Goodnough & Monica Davey, Effort to Track Sex Offenders Draws Resistance from States, N.Y. TIMES, Feb. 9, 2009, at A1 (noting a broad array of state criticisms, including that "[m]any states complain that the new federal law disrupts and even clashes with their own carefully created policies for managing sex offenders").
130. Jennings, supra note 95, at 1A (discussing dissatisfaction among Texas legislators over the juvenile registration requirement and the use of conviction-based registration, given the state's perceived failed experimentation with the policies in recent years).
131. Editorial, Tier Drop: State Should Revisit Sex Offender Rosters, The Oklahoman, Apr. 13, 2009, at 10A (noting that since Oklahoma amended its laws in 2007, in a failed early attempt to satisfy the AWA, the number of registrants subject to lifetime registration nearly doubled from the number registered under prior law).
132. Memorandum of the Nat'l Criminal Justice Ass'n and the Nat'l Conference of State Legislatures (June 12, 2009) (on file with author) (urging Justice "to engage in meaningful consultation with state and local stakeholders in order to formulate reasonable rules and regulatory authority changes that address state concerns and provide a workable format for states to move forward with implementation of [the AWA]").
133. See, e.g.. Applicability of the Sex Offender Registration and Notification Act, 72 Fed. Reg. 8, 894, 8, 897 (Feb. 28, 2007) (codified at 28 C.F.R. pt. 72) (concluding that retroactivity will not impose substantial costs on states). In California alone, authorities estimated that a partial assessment of required changes would require an expenditure of $38 million, based on additional record .checks, more frequent reporting, and reclassification of registrants.
134. See Goodnough & Davey, supra note 97, at A13.
135. Att'y Gen. Order No. 3081-2009 (May 26, 2009), available at http://www.ojp.usdoj.gov/smart/pdfs/sornaorder.pdf. A letter signed by Senate and House Judiciary Chairs and Ranking Members offered in support of an extension stated that "there have been unforeseen difficulties in implementing the law and significant added costs...." Letter from Patrick Leahy, Chairman, Senate Comm. on the Judiciary, and John Conyers, Chairman, House Comm. on the Judiciary, to Eric Holder, Attorney Gen. of the U.S. (Mar. 19, 2009).
136. See Press Release, Office of Justice Programs, U.S. Dep't of Justice, Justice Department Announces Fourth Jurisdiction to Implement Sex Offender Registration and Notification Act (May 6, 2010), available at http://www.ojp.usdoj.gov/newsroom/pressreleases/2010/SMART10065.htm.
137. See Goodnough & Davey, supra note 97, at A13.
138. See Telephone Interview with Susan Parnas Frederick, Fed. Affairs Counsel, Nat'l Conference of State Legislatures (Sept. 28, 2009) (transcript on file with author).
139. See, e.g., Galle & Seidenfeld, supra note 19, at 1969 ("Decisions about federalism are often a choice of institutions....").
140. id. at 1949 ("[T]he issue is not which institution best enables state influence over regulation, but rather which institution fosters state influence that will enhance public welfare . . . .").
141. see also Thomas W. Merrill, Preemption and Institutional Choice, 102 NW. U. L. REV. 727, 779 (2008) ("Institutional choice analysis ... rests ultimately on empirical judgments about the capabilities of different legal institutions.").
142. See Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 YALE L.J. 1256, 1308 (2009) (noting that individual case studies "are likely to be especially important, as every administrative scheme is different and the conditions of bargaining between the states and the federal government vary widely from context to context").
143. Sharkey, supra note 8, at 2155 ("Agencies, at least in theory, are equipped to make nuanced, flexible determinations regarding federal-state regulatory balance, based upon underlying policy considerations that may vary by regulatory context.").
144. As Jody Freeman has pointed out, agency and regulatory context can have direct bearing on the utility of the notice-and-comment process in particular. Jody Freeman, Collaborative Governance in the Administrative State, 45 UCLA L. REV. 1, 11 n.27 (1997). (Pubitemid 127445717)
145. Several provisions of the APA itself attest to this exceptionalism. See, e.g., Ronald F. Wright, How Prosecutor Elections Fail Us, 6 Ohio St. J. Crim. L. 581, 609 (2009) (noting public rulemaking exceptions made for criminal law enforcement agencies). Nevertheless, other instances of federal criminal justice rulemaking can be readily found, including those evincing disregard of state interests, such as the 2003 decision by the Immigration and Naturalization Service ("INS") to preempt state law requiring disclosure of the identities of inmates held in state institutions.
146. See Ronald K. Chen, State Incarceration of Federal Prisoners After September 11, 69 BROOK. L. REV. 1335, 1345 (2004) (discussing the INS rule and calling the agency's conclusion that the rule lacked federalism implications "facially remarkable").
147. See DAVID EPSTEIN & SHARYN O'HALLORAN, DELEGATING POWERS 230-38 (1999).
148. Cf. Rachel E. Barkow & Kathleen M. O'Neill, Delegating Punitive Power: The Political Economy of Sentencing Commission and Guideline Formation, 84 TEX. L. REV. 1973, 1979-88 (2006) (noting how the commonly identified factors motivating congressional agency delegations typically are not operative with respect to sentencing policy and practice).
149. Retroactive application of the AWA, for instance, represented nothing so much as a political matter for resolution. On the political quality of agency decisions more generally, see, for example, Lloyd N. Cutler & David R. Johnson, Regulation and the Political Process, 84 YALE L.J. 1395, 1399 (1975) (observing that agencies make " 'political' decisions in the highest sense of that term").
150. Kathryn A. Watts, Proposing a Place for Politics in Arbitrary and Capricious Review, 119 YALE L.J. 2, 35-37 (2009).
151. See Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. REV. 461, 479-80 (2003).
152. This relative uniqueness, it is important to emphasize, should not be permitted to obscure the significance of the systemic breakdown evidenced here. For an insightful account of the death of checks on the criminal law- and policymaking process, see generally Barkow, supra note 94.
153. See supra note 13 and accompanying text (discussing the posited tendency toward state/federal cooperation as a result of shared regulatory goals).
154. See Sharkey, supra note 8, at 2159.
155. See id. at 2150-52.
156. As I have noted elsewhere, this uniqueness is arguably manifest in the sustained con-gressional focus, since 1994, on registration and notification, in contrast to federal criminal justice initiatives during the time that pressured states to conform to federal sentencing desires, which foundered. See Logan, supra note 23, at 122 n.406.
157. See LOGAN, supra note 22, at 85-108 (discussing the political catalysts behind the recent wave of harsh measures targeting sex offenders).
158. See Logan, supra note 23, at 107. For instance, since registration and notification caught the attention of Congress in the early 1990s, only a handful of federal legislators-all Democrats-have raised concerns over federal intrusions on state autonomy, a position that not coincidentally aligns with their typically more tempered approach to criminal justice matters. Id. at 104.
159. Metzger, supra note 8, at 2109.
160. see also id. (asserting that "administrative law has significant potential to advance state interests within the framework of the national administrative state").
161. In a recent article, Catherine Sharkey identified a cluster of reforms intended to ensure greater state/federal agency involvement, many of which are already specified in Executive Order 13, 132, including: requiring regular and early consultation in the rulemaking process, the designation of an ombudsman-like "federalism official," and the creation of working groups of interested parties with which the agency can consult. See Sharkey, supra note 8, at 2160, 2170-72.
162. See id. at 2172-91 (identifying "agency-forcing" measures, including possible codification of Executive Order 13, 132, and making it judicially enforceable against agencies).
163. see also Metzger, supra note 8, at 2101-05 (urging a greater judicial role in ensuring agency fealty to federalism interests).