X-Officio: The Mutant Registration Act

by Franklin Nelson(1)

This article attempts to summarize the statutory and regulatory framework surrounding mutant registration in America.


The act was clearly designed to follow the Alien Registration Act of 1940, also known as the Smith Act, named after its author, Howard W. Smith of Virginia. There has been some movement among opponents to call the Mutant Registration Act the "Kelly Act" under the same principle, but that fell by the wayside as various versions of the Act made their way through Congress with and without Senator Robert Kelly's assistance and support. The Alien Registration Act was relatively successful, leading to the registration of over four and a half million resident aliens in the first few years of the law. Many supporters of the Mutant Registration Act hoped for the same result.

A. Definition of "Mutant".

The Act itself does not contain any definition of "mutant". A separately passed piece of omnibus legislation empowered the Commissioner of Mutant Affairs (a position established within the Department of Homeland Security) to promulgate regulations definining the term in the Federal Register. After consultation with geneticists working for the government he did. (2)

Geneticists have worked for the government in many capacities related to mutancy, so it was natural that the executive and legislative branches would turn to these scientists when determining a definition of mutancy. The disastrous Pagel class action litigation involving damage caused by Sentinels designed by the government, led to the Project Wideawake hearings before a joint budgetary committee. These hearings exposed a network of several dozen top geneticists recruited from universities around the world to construct anti-mutant weaponry. Very early in the process, a working "mutant scanner" system was created. Although expensive, scanners of that kind can now be found in nearly every publically funded hospital in the United States. The Purple Can Of Worms - Project Wideawake In American Jurisprudence 81 Harvard L.R. 192 (1998).

The definition of "mutant" established by the government has two prongs: the first, the "genetic test", a complicated sequence of genetic markers that can be located with a simple DNA test. This is the so-called "X-Factor" announced by scientists in the early days of mutants, and it is this genetic sequence that the "mutant scanners" search for. The second and more controversial prong is the "ability test", which has two parts: first, the person must have superhuman abilities, and second, the person has not shown that they do not possess the X-Factor by a DNA test. Superhuman abilities are those that exceed the "top baseline" factor established by the military in 1944 as part of the Super-Soldier tests. Those baseline levels were declassified and released to Congress in 1964.

The advantage to this two-part definition was simple - to attempt to force every known superhuman on Earth to undertake a DNA test to avoid prosecution, and to provide a way out for those who were unjustly accused under the Act. A person who displayed superhuman powers could "clear their name" of being a mutant if they took the DNA test and the X-Factor was not present.(3)

This intent was stymied, at least at first. Not even federally sponsored supernormal people went to disprove that they were mutants. This led to further regulation and enforcement attempts. As Congress dealt with the public relations tightrope of trying to force popular superheroes to do what they absolutely refused to do, federal and state law enforcement agencies tried to determine what to do about the law itself.

(1) Franklin Nelson is a presiding member of the New York Bar Association Executive Committee, a former state president of the American Civil Liberties Union, a former New York District Attorney and a founding partner of the firm of Nelson & Murdock.

(2) 227 Fed Reg. 19218 at 19277 (2003)

(3) It would also exclude interplanetary, interdimensional or supernatural sentients whose DNA patterns were either so different from human as to make testing difficult, or missing entirely.