COMMERCE CLAUSE

Tarrant Regional Water District ("Tarrant") seeks to export water to Texas from multiple sources within Oklahoma which are covered by the Red River Compact ("Compact"), a congressionally approved water apportionment agreement between Arkansas, Louisiana, Oklahoma, and Texas.  In 2007, Tarrant sued members of the Oklahoma Water Resources Board ("OWRB"), including Herrmann, in the United States District Court for the Western District of Oklahoma.  Tarrant sought a declaratory judgment that certain Oklahoma statutes dealing with water apportionment are unconstitutional and an injunction preventing the OWRB from applying the statutes to Tarrant's application for water.  Tarrant argued that the Oklahoma statutes violate the dormant Commerce Clause by burdening interstate commerce and that the statutes are preempted insofar as they conflict with the Compact's language. Tarrant argues that the Compact provides Texas with cross-border rights to access water located in Oklahoma and that Oklahoma’s water permitting statutes violate the dormant Commerce Clause by discriminating against out-of-state water users. OWRB argues that the signatory states to the Compact did not surrender their sovereignty by signing the Compact and that the Commerce Clause does not apply in this case because the Compact shelters Oklahoma’s water laws from scrutiny under the Commerce Clause.  Both parties fear that this decision, if decided for the opposing party, will cause severe social, economic, and environmental harm to their states.

While serving in the Air Force in 1999, a military tribunal convicted twenty-one-year-old Anthony Kebodeaux of statutory rape for having consensual sex with a fifteen-year-old girl.  Following a three-month sentence and bad-conduct discharge, Kebodeaux moved to Texas, where he became subject to strict lifetime registration requirements that include annual in-person registration and registration updates upon intrastate movement.  Seven years later, in 2006, Congress enacted the Sex Offender Registration and Notification Act (“SORNA”), which imposes registration requirements on sex offenders convicted under state or federal law, and additionally prescribes penalties for failure to register. After failing to update his registration following an intrastate move in 2008, Kebodeaux was convicted under SORNA in the United States District Court for the Western District of Texas and sentenced to one year and one day in prison, plus five years of supervised release. Kebodeaux appealed this conviction to the United States Court of Appeals for the Fifth Circuit, arguing that Congress did not have jurisdiction to criminalize his intrastate movements. The Fifth Circuit, sitting en banc, reversed the District Court’s conviction, holding that as applied to Kebodeaux, SORNA’s registration requirements were unconstitutional as exceeding Congress’s Article I powers. On appeal to the Supreme Court of the United States, the United States argues that SORNA did not constitute overreaching by the federal government because Kebodeaux was consistently subject to federal jurisdiction, having committed a federal offense under military law. In response, Kebodeaux contends that his release from prison pre-SORNA was unconditional, meaning that he is bound only by state registration requirements and any reassertion of federal jurisdiction over him through SORNA would be unconstitutional.  This case will also examine the balance between the benefits of uniformity in a comprehensive registration system against considerations of state sovereignty.

The Virginia Freedom of Information Act (“VFOIA”) states that “all public records shall be open to inspection and copying by any citizen of the Commonwealth.” Va.Code Ann. § 2.2-3704(A). Petitioners Mark McBurney and Roger Hurlbert made VFOIA requests and were denied because they are not citizens of Virginia. After being denied, Petitioners filed a complaint against the respondents, the agencies which denied their VFOIA requests, with the District Court for the Eastern District of Virginia. Petitioners argued that the VFOIA’s citizens-only provision violated their rights under the Privileges and Immunities Clause, and Hurlbert’s rights under the dormant Commerce Clause. The District Court granted summary judgment for the agencies, which was affirmed by the United States Court of Appeals for the Fourth Circuit. Petitioners now appeal, arguing that Virginia’s citizens-only restriction violates the dormant Commerce Clause because it discriminates against out-of state economic interests both facially and in effect, and also violates the Privileges and Immunities Clause because it creates an inequality in access to information. The Supreme Court’s decision in this case will impact whether a state is required allow all United States citizens to access their public records.