The High Court has spoken: Congress did not violate non-delegation clause

By Michael McKay . . . On Thursday, June 20, 2019, the U.S. Supreme Court rendered a 5-3 decision on Gundy v. United States, a ruling that says the U.S. attorney general’s application of the Sex Offender Registration and Notification Act’s (SORNA) registration requirements to offenders convicted even before the statute’s enactment  is not an unconstitutional delegation of legislative authority.

The majority opinion, by Justice Kagan, was joined by Justices Ginsburg, Breyer, and Sotomayor. Justice Alito filed a separate opinion concurring with the majority judgment. Justice Gorsuch filed a dissenting opinion, in which Chief Justice Roberts and Justice Thomas joined. Justice Kavanaugh took no part in the case.

The case was based on the notion that when the U.S. Congress enacted SORNA, they left many of the details of implementation up to the U.S. Attorney General. This allowed the AG to essentially make laws, a duty which is constitutionally supposed to be relegated to Congress. The Attorney General, who is the highest ranked law enforcement officer in the country, is charged with enforcing the laws as enacted by Congress, not writing laws. The so-called “nondelegation doctrine” was first established in a landmark 1928 decision, but the last time the United States Supreme Court invalidated a congressional action on nondelegation grounds was in 1935.

Justice Kagan, in her opinion, wrote:

Under that delegated authority, the Attorney General issued an interim rule in February 2007, specifying that SORNA’s registration requirements apply in full to “sex offenders convicted of the offense for which registration is required prior to the enactment of that Act.” 72 Fed. Reg. 8897. The final rule, issued in December 2010, reiterated that SORNA applies to all pre-Act offenders. 75 Fed. Reg.81850. That rule has remained the same to this day. Petitioner Herman Gundy is a pre-Act offender. The year before SORNA’s enactment, he pleaded guilty under Maryland law for sexually assaulting a minor. After his release from prison in 2012, Gundy came to live in New York. But he never registered there as a sex offender. A few years later, he was convicted for failing to register, in violation of §2250. He argued below (among other things) that Congress unconstitutionally delegated legislative power when it authorized the Attorney General to “specify the applicability” of SORNA’s registration requirements to pre-Act offenders. §20913(d). The District Court and Court of Appeals for the Second Circuit rejected that claim, see 695 Fed. Appx. 639 (2017), as had every other court (including eleven Courts of Appeals) to consider the issue. We nonetheless granted certiorari. 583 U. S. __ (2018). Today, we join the consensus and affirm.

Justice Gorsuch, in his dissenting opinion, wrote:

If Congress could pass off its legislative power to the executive branch, the “vesting clauses, and indeed the entire structure of the Constitution,” would “make no sense.” Without the involvement of representatives from across the country or the demands of bicameralism and presentment, legislation would risk becoming nothing more than the will of the current President. And if laws could be simply declared by a single person, they would not be few in number, the product of widespread social consensus, likely to protect minority interests, or apt to provide stability and fair notice.

Many criminal justice reform pundits saw the Gundy case as an attack on the “administrative state,” and opined that if the Court were to find in favor of Gundy, the decision would potentially have had far-reaching implications that went far beyond just SORNA.

It is unfortunate that, in this instance, the Supreme Court has ruled against common sense and in favor of a policy that allows the Attorney General to essentially make up the laws as he goes, prosecuting those he will without the checks and balances purportedly guaranteed by our Constitution.

Decision is here.

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Michael McKay

Michael McKay is NARSOL's Director of Marketing and a frequent contributor of articles to the NARSOL website. He is the published author of several non-fiction books, an editor & board member at LifeTimes Magazine, blogger at The Registry Report, and host of Registry Report Radio on BlogTalkRadio.

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    • #57030 Reply

      This was a tricky case. On one hand, I think we all want a blow dealt to SORNA. On the other, there would have been other far-reaching negative consequences had Gundy prevailed. Let’s hope that in the future the Court takes a case that deals solely with the registry and isn’t some backdoor to override precedent in other unrelated areas.

    • #57032 Reply

      This decision came as no big surprise. Why would SCOTUS open up such a massive can of worms for the sake of a voiceless and unwanted group like those forced to endure on the registry until they are dead, or as in Florida, for eternity? I had hoped we would see some real justice here, but as they say, the needs of the many outweigh….but that’s B.S. in my book. Freedom lost for one is for all. Sigh.

      • #57040 Reply

        Do you think Gundy would have had a better chance of obtaining a more favorable ruling had they attacked SORNA’s retroactive application as a violation of the ex post facto clause? That would not have been opening the can of worms his attack on the administrative state would have opened.

      • #57096 Reply
        Ed C

        This was a rather technical constitutional question, i.e. improper delegation of authority from one branch of government to another. This issue will come up again. The dissenting opinion written by the Chief Justice was absolutely scathing in its condemnation of the majority decision. Justice Alito did not join the opinion, but wrote a three-paragraph concurring opinion, that supplied very weak support. Justice Kavanaugh didn’t participate in the decision.

        If one day the Court decides to attack the non-delegation question head-on (as Alito opined), the door could be open to challenging the specific registry question again. Of course, that may be long after all affected persons are dead. Why would that not surprise me?

    • #57034 Reply

      Sorry, but SCOTUS dropped the ball on this one, and totally ignored the US Constitution. SCOTUS’s opinion was just that an opinion nothing else. The Constitution is still the Supreme Law of the Land, regardless of what SCOTUS has to say, its just 8 peoples interpretation of what they think the Constitution says and means, this should also be a clear violation of the Supremacy Clause. I’m just glad Michigan has until August 21st. to revise our registry meaning I will finally be off the stupid registry.

      • #57067 Reply

        Their opinion is the law of the land. The Constitution is what they say it is.

        • #57084 Reply

          Their job is to interpret the Constitution (and laws) as written. They, in fact, ruled poorly by rewriting another piece of the Constitution.

    • #57041 Reply

      The Gundy case is not so much about the registry laws as it is about the U.S. Attorney General’s authority. That is what this specific ruling appears to address. From what I have read, this is not an opinion on Ex Post Facto, or even a specific registry law on the books. The high court did not specify one way or another about the constitutionality of retroactively applying laws after the fact. Again, this is about the Attorney General’s authority.

      This is how I interpret it.

      • #57085 Reply

        Spot on Fred. Thank you for saying it so well.

    • #57038 Reply

      The Courts main point!
      Mr. Gundy entered waiver & Plea intelligently and in his own interest.
      To presume the people’s houses may not hand ( by act) over duty by means that effect regulatory efficiency dooms government efficacy. Do not blame the courts here, your real beef is with those that dominate congress, and congressional choices. HOLD democrats & republicans parties each whom more often then not advance former prosecutors or lawyers as candidates.
      Our current President, like him or not, isn’t a lawyer nor former prosecutor.
      He has implicated the federal surveillance saints for their potential wrongdoing. IMHO precisely why USAG Mr. Barr ( ever so ironic) first.
      1. Made clear surveillance based on sexual use of the internet infrastructure would continue. (Feds nab 1700) signaling market stability under him.
      MADE moves against transgender military. Another presumed non congressional authority. A conservative move signaling caution to those under military contracts concerning moral turpitude in military troops!

      Each of these moves secure politically the FBI, and the rest of the saint’s USES of the current exercises in electronic domestic surveillance. Every attempt will be made to continue to secure unfettered uses by gov agencies and private contractors.

      • #57048 Reply


        Thanks, so the Gundy ruling shouldn’t have any effect on the fact that the Michigan Legislators have until August 21st. to revise the Michigan Registry or else according to Judge Cleland, because once they revise it I should finally be removed since my conviction was way back in 1992 so I am definitely a pre-sorna registry.

    • #57037 Reply

      I am no legal eagle, but I think Gundy might have had a better chance winning had he attacked the retroactive application of SORNA as a violation of the ex post facto clause. The reason I think this is due to the fact that SCOTUS refused to grant cert. to Michigan in Does v. Snyder when the 6th Circuit ruled against Michigan’s retroactive application of new S.O.R. restrictions. Had they attacked the retroactive application of SORNA, they could have brought in Does V. Snyder, which SCOTUS let stand. That was a direct strike against ex post facto.

      There’s a heinous SCOTUS ruling that someone must find a way to bring before SCOTUS again and get it overturned. That ruling is Smith v. Doe, wherein SCOTUS ruled many years ago that the registry is non-punitive. The registry of today is life-crippling with the myriad of restrictions that have been heaped on ever since that ruling was handed down. States and other municipalities took the SCOTUS ruling in SMITH as a blank check to do anything they like with sex offenders. The registry considered by SCOTUS in Smith had no restrictions on residence or employment. The update was no more than mailing a verification form in periodically. There was no in-person reporting requirement. I don’t see how any honest judge can uphold the registry as it is now. I don’t see how any judge can honestly say the registry isn’t punitive by design or in a cumulative effect. Do they even really care that our rights are trampled at every turn?

      • #57039 Reply

        What will it mean for states in the 6th Circuit if Michigan’s legislature fails to repair their registry law and the court has to enact a remedy?

        • #57068 Reply

          This case has nothing to do with that from what I understand.

    • #57050 Reply

      Not only does it violate ex-post-facto there is also a prohibition against changing contracts. A sentence is a contract.

      To allow retrospective laws is a danger to all society. It is insanity. Today it is sex offenders. tomorrow it is you.

    • #57054 Reply

      My thought on this ruling, it’s outrages, the legal issue at hand on the next issue before the court: Must prevail, retroactive registration for pre-act offenders are in fact, unconstitutional.

      Not only is it discrimination, it also is linked to double jeopardy of it’s attachment to the same crime even though they try to portray it as a new crime.

      Failing to register from the same crime is no doubt, not only is it ex post facto, double jeopardy comes into play. As for me, I had a kangaroo trial in 1983 on a prostitute who even committed perjury at my trial. My public defender, judge & prosecutor hid the sworn oath from the jury. They stole my freedom from me & I am writing a book on the court entering into a conspiracy to get a conviction.

      What they done to me should never happened to anyone in the U.S.



    • #57055 Reply

      I knew it was going to turn out this way. News articles were saying the court majority was leaning to ruling in Gundys favor, with their opinions explaining the wrongness of it.

      THEN, everyone stopped talking about it. No news on it, no website updates ANYWHERE. I wondered why and how it could just disappear. Not even anyone who “advocates” for us acknowledged it. I tried to mention it, but nothing…

      I’m sure there was some serious pay off money involved, probably billions to avoid the Administrative state dissolving. Just remember, Judas chose money too…and I wouldn’t want to be him no more than the evil people involved with these laws being able to remain in place. Gods judgement isn’t worth it, but some people don’t learn until it’s too late.

      • #57075 Reply

        I have never heard anything so silly in my life. Those on the Supreme Court worked their entire life to get there. You think they would throw that away over one case?? Not even close.

        The Registry sucks. It really does. Yet, our time will come to overcome it. It takes time and patience. What Gundy was asking for was way too much. They are not going to reinvent the wheel over one case . That is just silly. Patience, it will come.

    • #57057 Reply
      James Coghill

      Although it didn’t work the strategy of this case was brilliant. I felt this case had a fighting chance but now I see why it didn’t work.

      “The case was based on the notion that when the U.S. Congress enacted SORNA, they left many of the details of implementation up to the U.S. Attorney General. This allowed the AG to essentially make laws, a duty which is constitutionally supposed to be relegated to Congress.”

      I hate to say it but the quote above shows clearly what’s going on and who is to blame. It’s everyone. You get branches of government doing things the Constitution forbids when people don’t know what they are supposed to be doing as defined by the Constitution. You get this when Congress who is supposed to be the only writer of laws in this country doesn’t do it’s job and dumps it on the Attorney General and you have a weak Attorney General who doesn’t know the Constitution well enough or have the balls to say, “It’s not my job to write law it’s your’s.” The worst part is the public finds this acceptable performance.

      The only reason this case failed was because it would force a change in business as usual and in this country that’s never going to happen.

    • #57082 Reply
      • #57117 Reply

        If the Michigan legislature does not fix the state’s registry law by the deadline, what will happen then? Will the courts impose their own fix? If so, what would it mean for all other states that fall within the 6th Circuit?

        I think if Gundy would have attacked the SORNA’s pre-act offender registration requirement as a violation of ex post facto, he would have gained more traction. Seeing that the Supreme Court upheld the 6th Circuit’s ruling against the retroactive components of the Michigan registry, he would have had the Court’s own past action in support of his argument.

      • #57116 Reply

        My question is this for clarification purposes. Since SORNA has a 3 tier level for person’s required to register does Texas has a tier level as well? I ask because the State’s Council on Sex offenders treatment recently told me that I wasn’t eligible to apply for deregistration because my SORNA and my Texas requirement to register are the same- lifetime registration. However, I’m considered a low risk level here so why would I have a SORNA lifetime registration requirement is beyond me. My case is a 1987 case way before Texas had a registry. I had seen when SORNA was adopted I was a tier 2 offender and that carried a 25 year registration requirement, so now I’m told by this quack agency that I have a lifetime registration with SORNA? WHY would I be punished both by the state of Texas as well as the Federal government when my case is not a federal case which is what SORNA is- a federal law?
        I too, was hoping for the Gundy case to prevail but there’s still light at the end of the tunnel for all people who are both pre law or pre- SORNA. THIS FIGHT IS FAR FROM OVER.
        Thank you for your assistance to my questions.

        • #57310 Reply

          Richard Diaz:

          Texas does have a tiered system, in a sense, but it has little to nothing to do with your risk level assessment. The registration requirement is typically based on what crime you actually committed. I believe most sexual offense crimes in Texas carry a lifetime registration but there are some that carry only 15 years.

          The first hurdle to even being considered for deregistration in Texas is that your crime has to carry a shorter registration requirement for federal SORNA than it does for Texas registration requirements. If it does, then once you at least serve the length of time required by federal SORNA, you can begin to look into the possibility of deregistration.

          The process is a lengthy nightmare though. And while they talk as if deregistration is possible, the reality is it rarely happens in this state.

    • #57090 Reply

      As it is written by our scientists….’The sun is a common, ordinary YELLOW star in the universe.’

      As interpreted by the Supreme Court……’The sun is not necessarily Yellow in all its color, but is actually a combination of the colors of Blue and Green, therefore, it can be said that any proponent of these colors can, and necessarily, be accepted as part of the whole Sun in question or exposition.’

    • #57088 Reply

      How can it be legal to apply a newly enacted law to someone retroactively?
      Suppose a person was caught speeding in their car. They are given 3 points on their driver license and $300 fine. They pay the fine, and in 3 years (or whatever) the points go away.
      Now…. 15 years later they pass a law that says that anyone who has a total of 3 points or more on their driver license must serve a mandatory 15 days in jail.
      Oh…and by the way…it is retroactive.
      So now, 15 years later, that person is put in handcuffs and brought to the county jail where they sit for 15 days????
      I’m just saying……..

    • #57100 Reply
      Jeffrey Gamso

      I’ve been asked to weigh in here as a civil rights and criminal defense lawyer who’s argued and won (and lost) SORNA & SORNA-related cases in appellate courts. So here’s a couple of thoughts.

      This was never, from the Court’s point of view, a case about SORNA. It was always a case about the non-delegation rule and the administrative state. That means it was a case about the federal government’s (Gundy has nothing to do with state laws) exercise of power to regulate everything from clean air to airline safety to e-coli contamination of bags of salad in the grocery store. Oh, and to wage and hour laws and assault weapons and . . . .

      Note that I said the “exercise of power.” Gundy has nothing to say about whether the feds have the power to regulate those things. Either it does or it doesn’t. But if it has the power, how is that to be exercised. Congress basically said that the Executive Branch, through all those administrative agencies that control pretty much everything that happens – for better or worse in each case depending on your point of view – can make rules and enforce them through criminal penalties. (Take a look at Harvey Silverglate’s book, “Three Felonies a Day: How the Feds Target the Innocent.”)

      The short version: Gundy had too much non-SORNA baggage and concerned the wrong issue.

      • #57114 Reply

        Well, that’s just it. Can a fed be responsible in their application of regulatory law. Our founders thought ,No! States are much better situated to accomplish that task as so much of the regulatory impact is on the general environment improvement for the people. In other words, regimes that impact the day to day lives of citizens.

        Most of the federalist influence seeks to harmonize ( create happiness via unity) through hegemony (fed dominate state law). Each state in this union naturally favors self rule, but over time the federalist in each party have carved out markets sectors in lawmaking that compete for each extreme leaving decreasing room in the middle for states to experiment in social choices. This strips the country of not just individuality but innovation. This has resulted in ” too big to fail” scenarios like SOR. Plain bad policy and insidious to liberty for all.

    • #57105 Reply
      Ernest B Tucker

      What you have to realize is that the court is not going to make a ruling that will negate previous rulings. The constitution is a tool that the court uses for its own convenience. If it is of benefit to the government the court will rule accordingly. If not it will rule based on statutes. You will see this over and over again if you

    • #57107 Reply


      Thanks for the reprint of the FAC article which breaks this down and its applicability to SORNA folks and the overall sense of the case. I’d like to have had Justice Kavanaugh, through a full bench, hear this, vote on it, and opine if he wanted to.

      My other thought is if this case brought from a different angle, not a SORNA person bringing it up, would’ve the outcome been different with different presentations, etc? We’ll never know of course, but if someone else wanted to do so sooner rather than later, not 84 years later, I guess the door has been cracked open.

    • #57133 Reply
      David Higham

      I can not believe that the Scotts ruled against gundy clearly the justices understand what the separation of powers mean but a few of them decided to ignore the constitution job well done to the five justices who ruled against gundy maybe the next time this issue comes up justice Neil Gorsuch can explain two the other justices what the separation truly means I always thought that these justices knew what the law is when it is applied and that it is against the constitution to retro laws.

    • #57301 Reply

      F the USA

    • #57720 Reply
      obvious answers

      Actually your title is faulty. What the supreme court did was so much worse then a mere “finding” they clearly stated that they were willing to over look known justice if they decided they didn’t like the defendant who brought forth the case.
      Please If you read Justice Alito’s addendum to the decision you will understand an eye opening and scary realization.,
      It is almost unheard of for a justice to add an opinion when he is siding with the majority decision. In this case Justice Alito did and what he wrote should scare the day lights out of anyone interested in justice.
      Justice Alito clearly admitted the case more then violated the non-delegation clause and if any other case (except a sex offender) was to bring their case before the supreme court he would rule it that way.
      Why would he go out of his way to admit if any other case was presented him “except a sex offender case” he would rule differently? I dont know but the fact he did shouldn’t have anyone sleeping well at night. It is safe to bet if he felt that way good chance is the other four that sided with him did as well.

    • #57799 Reply

      The actions of the court in the Gundy case may very well be an indicator of where the court stands with regard to registered citizens. I have long held confidence in the constitutional integrity of the Supreme Court, but it would appear in recent history that there is a very noticeable crack in that wall. I am not sure SCOTUS has the courage to overturn what are clearly illegal registry laws, though my hope remains for now.

      • #57800 Reply

        Please do not associate my post with the “Jim” who wrote “F the USA.” I hold no such attitude.

    • #57801 Reply

      Hello, a friend of mine brought up a very good question: ” ok before the registry was enacted and the federal government passed Sorna and the U.S. said if any state don’t enact Sorna they will lose 10% of Byrnes grant, thats bribary, i looked up the definition of bribery: to influence the judgment or conduct of (someone) with or as if with offers of money or favor : to induce or influence by or as if by bribery” it did say if a store or a company gives 10% 20%etc… Thats not bribery, but each state received 10% more money if they enacted Sorna. Which is basically the government gave each state money to enact Sorna. The us government has something to gain as well as the states by enacting Sorna. Correct me if I’m wrong or you think I’m wrong. I would love to here your feedback, Thanks

      • #57907 Reply

        Quite right about the bribery s\ Byrne grants, but a better definition is financial coercion by the fed. Still states each had the choice onto themselves. Each State’s system HAD to choose. All 50 AGs, passed a bill into their respective congressional bodies, and had Signature from each Govoner.
        That aspect was discussed in the first Doe cases.
        Each state authority DOES HAVE a duties to good faith in protection of states Sovereignty from Tyrants, unfortunately Ds&Rs, tend to attacks the others tyrants, and governorship fascinates between the same two.

    • #58357 Reply

      While I don’t know much about this SORNA thing just from what I gather on here and from the viewpoints of some it seems to impound instead of give relief. I wonder who the minute man is in this. Yes a lots changed since my civic’s classes in jr. high and high school for everyone.

      I sometimes wonder why Neil Diamond wrote the song “Were coming to America. I wonder if man has laid back on freedom and true principal or even understanding. Is there something still cracked in the liberty bell today. Justice is justice in any venue.

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