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Case 22-1426, Document 79, 06/29/2023, 3536060, Page49 of 93

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"Congress evinced a clear intent to extend" the limitations period).

Maxwell notes that Congress "considered—and rejected—a retroactivity clause" before enacting the 2003 amendment. (Br.55). But as Judge Nathan recognized, "the legislative history makes clear that Congress abandoned the retroactivity provision . . . because it would have produced unconstitutional results." (A.152 (discussing co-sponsor remarks expressing concern that "the proposed retroactivity provision was 'of doubtful constitutionality' because it 'would have revived the government's authority to prosecute crimes that were previously time-barred'")).9 Thus, the rejection of the retroactivity clause "shows only that Congress intended to limit the PROTECT Act to its constitutional applications, including past conduct—like Maxwell's—on which the statute of limitations had not yet expired." (Id.).

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9 Maxwell contests this explanation of the retroactivity clause's rejection because Stogner v. California, 539 U.S. 607 (2003), had not yet been decided. (Br.56-57). But the co-sponsor could hardly have been clearer in expressing his constitutional doubts. And the co-sponsor did not need Stogner as a basis for his concern, as courts and Congress have long recognized the distinction between permissible extensions of unexpired statutes of limitations and impermissible extensions of expired statutes of limitations. Stogner, 539 U.S. at 616-18.

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