SECURE Notarization Act of 2025

Enumerated powers · passes · severity: minor

Congress has authority under the Commerce Clause (Article I, Section 8, Clause 3) to regulate notarizations that occur in or affect interstate commerce. The bill explicitly ties its provisions to interstate commerce, and remote notarization of electronic records is a commercial activity that crosses state lines. However, the bill's requirement that states recognize out-of-state notarizations may exceed the enumerated powers if it is seen as commandeering state officials, but the Supreme Court has upheld federal laws that preempt state law in interstate commerce. The bill does not create a new federal regulatory scheme but rather sets uniform standards for recognition, which is within Congress's commerce power.

Bill of Rights · raises concerns · severity: significant

The bill's mandatory audio and video recording of notarizations implicates the Fourth Amendment's protection against unreasonable searches and seizures. While notarizations are not traditionally considered private communications, the recording of a person's image and voice in their home or office could be seen as a search, especially if the recordings are retained and potentially accessed by the government. The bill does not specify who has access to the recordings or how they are protected, raising concerns about warrantless surveillance. Additionally, the bill's requirement that states recognize out-of-state notarizations could be seen as infringing on the Tenth Amendment's reservation of powers to the states, though this is more of a structural issue than a direct rights violation. The bill does not directly restrict speech, religion, assembly, or other First Amendment rights, but the recording requirement could have a chilling effect on the exercise of rights in the notarization context.

Individual liberty · raises concerns · severity: significant

The bill imposes a requirement that individuals submit to audio and video recording during remote notarizations, which is a restriction on their ability to conduct personal business without government-mandated surveillance. While notarization is a regulated activity, the government has not provided a compelling justification for the blanket recording requirement, especially given that the recordings are retained and could be used for purposes beyond the notarization itself. The bill also requires individuals to use specific communication technologies, which may be burdensome for those without access to such technology, thereby restricting their ability to engage in lawful transactions. The burden is on the government to justify these restrictions, and the bill does not adequately do so.

Decentralization · raises concerns · severity: significant

The bill fails the decentralization test because it consolidates decision-making at the federal level by requiring states to recognize out-of-state notarizations, overriding state authority to regulate notaries. While an individual could handle a notarization without government involvement, the bill's federal mandate is not the minimum necessary. Local communities and states could handle the recognition of notarizations without federal involvement, as they have historically done. The bill's requirement that states recognize out-of-state notarizations is a direct consolidation of power upward, violating the principle of federalism.

Due process and takings · passes · severity: minor

The bill does not bypass due process or take property without just compensation. It does not deprive individuals of life, liberty, or property without a hearing; rather, it establishes procedural requirements for remote notarization. The recording requirement could be seen as a taking of personal data, but the bill does not specify that the recordings are government property, and individuals consent to the recording as a condition of the notarization. The bill does not violate the Takings Clause because it does not take private property for public use without compensation. However, the lack of clear data protection standards could lead to arbitrary use of recordings, which might implicate substantive due process, but the bill itself does not violate due process.