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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 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, contributing editor & board member at LifeTimes Magazine, the executive editor of The Registry Report, and founding host of Registry Report Radio on BlogTalkRadio.