SCOTUS Upholds 91-Year-Old Doctrine Delegating Broad Executive Power With SORNA

Published on June 20, 2019

On Thursday, the U.S. Supreme Court (SCOTUS) upheld the Sex Offender Registration and Notification Act (SORNA), giving the U.S. Attorney General broad discretion over how the law should be enforced, declining to revive a legal doctrine that experts said could vastly diminish the power of the executive branch.

What’s The Legal?

In a 5-3 vote, the Court upheld a provision of SORNA, which gives the U.S. AG discretion in deciding whether it should apply the law to those convicted of sex offenses prior to its passage.

Enacted in 2006, the Act requires convicted sex offenders to register, check periodically in person, and share personal information with the authorities. SORNA automatically imposes this registration requirement on sex offenders convicted after it was enacted, but it delegates to the attorney general, the task of determining whether people who offended before SORNA became law must register.

Specifically, the Act states that “the Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter.”

Enter the Gundy case. The case presents a very troubling issue as to whether this regime violates a largely defunct doctrine known as “non-delegation,” which limits Congress’ ability to delegate authority to the executive branch. Under the U.S. Constitution, Congress possesses the “legislative power,” allowing it to set the nation’s policies. The non-delegation doctrine suggests that if Congress delegates too much of this power, it violates the Constitution.

In the initial case filed back in September 2017, petitioner Herman Gundy, argued that the SORNA provision violated the non-delegation doctrine due to the lack of an “intelligible principle” to guide it.

Dating back to Chief Justice John Marshall’s court, if Congress delegates quasi-legislative powers to another body, it must provide a “general provision,” or “intelligible principle” by which “those who act” can “fill up the details.” This could be anything in the public interest, convenience, or necessity, or simply considered to be “just and reasonable.”

Gundy was sentenced to time served and five years for failing to register as a sex offender for crimes committed before SORNA’s enactment in 2006.

Bringing Down the Gavel

Justice Elena Kagan wrote the Opinion for the Court, which was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor.

In her opinion, Justice Kagan stated that SORNA did, have an intelligible principle, because Congress specifically tasked the U.S. AG to apply the law to pre-act offenders to the extent that it was feasible.

According to Justice Kagan, the provision at issue “does not give the attorney general anything like the ‘unguided’ and ‘unchecked’ authority that Gundy argues.

“The text, considered alongside its context, purpose, and history, makes clear that the attorney general’s discretion extends only to be considering and addressing feasibility issues,” she explained. “Given that statutory meaning, Gundy’s constitutional claim must fail.”

The Court went on to emphasize that if SORNA’s delegation is unconstitutional, then “most of government is unconstitutional.”

Does This Mark the End of Separation of Powers?

However, in a sharp dissent, Justice Neil Gorsuch stated that the result of the Court’s decision marks “the end of any meaningful enforcement of our separation of powers.”

“It would be easy enough to let this case go,” Justice Gorsuch acknowledged in his dissent. “After all, sex workers are one of the most disfavored groups in our society. But the rule that prevents Congress from giving the executive carte blanche to write laws for sex offenders is the same rule that protects everyone else.”

In Gorsuch’s view, SORNA effectively combined the Article I powers of Congress with the Article II powers of the executive in a single federal official. Essentially, the 91-year-old “intelligible principle,” according to Justice Gorsuch, is a “misadventure.”

Gorsuch’s dissent was joined by Chief Justice John Roberts and Justice Clarence Thomas. Justice Brett Kavanaugh took no part in the case.

This seems to mark the beginning of the conservative revolution, hinging on the fact that the Court’s newest member, Judge Kavanaugh, was days before his confirmation vote when Gundy was argued, so he sat this case out and denied his fellow conservative the fifth vote they needed.

For more information on this case:

Herman Avery Gundy, Petitioner v. United States
Case No.: 17-6086

Gundy is represented by Jeffrey L. Fisher, David T. Goldberg and Pamela S. Karlan of the Stanford Law School Supreme Court Litigation Clinic, and Sarah Baumgartel, Yuanchung Lee, Barry D. Leiwant and Edward S. Zas of the Federal Defenders of New York Inc.

The government is represented by Noel J. Francisco, Jeffrey B. Wall and Jonathan C. Bond of the U.S. Department of Justice’s Office of the Solicitor General, and Brian B. Benczkowski and Sonja M. Ralston of the of the DOJ’s Criminal Division.

This story was originally reported by Law360.

Andrew "Drew" Rossow is a former contract editor at Grit Daily.

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