The importance of Gundy v. U.S.

By Peter J. Wallison . . . Gundy v. United States is not listed in most media accounts of important matters now before the Supreme Court, yet this case could profoundly change how courts intervene to preserve the constitutional separation of powers in the future. Involving just one individual petitioner, Herman Avery Gundy, and only one issue — how to interpret a provision in the Sex Offender Registration and Notification Act of 2006 (SORNA) — the Court’s decision could signal a change in the direction of the Supreme Court on separation of powers issues, and begin an era in which Congress will not be permitted to give administrative agencies broadly conceived powers to make rules and regulations.

For these reasons the case has drawn amicus briefs from 13 groups, including the ACLU, New Civil Liberties Alliance, Pacific Legal Foundation, and 15 Criminal and Administrative Law Professors. Predicting a result is also difficult because only eight justices took part; the argument occurred on October 2, before Justice Kavanaugh had taken his oath of office.

Gundy arose because a provision in SORNA appears to give the Attorney General the opportunity to impose a portion of the act retroactively on individuals who had been convicted of sex offences under state law before SORNA was enacted. The act was intended to create a comprehensive national system of registration for convicted sex offenders under state or federal law, requiring them to register with the federal government as well as the state in which they were convicted, and to keep their registration current in each jurisdiction in which they reside.

The act also contains a special provision for offenders who were convicted under state law before SORNA’s enactment: “The Attorney General shall have the authority to specify the applicability of the requirements of this title to sex offenders convicted before the enactment of this act.”

In a prior case — Reynolds v. US — considered by the Court in 2012, the Court (Justice Breyer writing for the majority) held (7-2) that the act’s language about the Attorney General’s authority with respect to “pre-Act offenders” was not applicable to these individuals until the Attorney General issued the regulation contemplated by the statutory language. Thus, the Court had decided in 2012 that the Attorney General was empowered by the language of the act to determine who among the pre-Act offenders would be subject to the registration requirements and who would not.

This raised a question that the Court had not decided in Reynolds, but had to confront in Gundy: could the Attorney General both declare that a pre-Act offender was required to register under SORNA and then prosecute him for having failed to register? This placed the power to make a law and the power to enforce it in the same hands — a classic violation of the separation of powers and a clear delegation of legislative authority.

Read the full analysis here at American Enterprise Institute.


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This topic contains 6 replies, has 2 voices, and was last updated by Avatar Glen 1 week, 1 day ago.

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  • #56438 Reply

    By Peter J. Wallison . . . Gundy v. United States is not listed in most media accounts of important matters now before the Supreme Court, yet this cas
    [See the full post at: The importance of Gundy v. U.S.]

  • #56439 Reply
    Nena Eschete

    Why is that sex offenders are preyed upon so heavily? I know of no other crimes that have continuous punishments and extra rules, stipulations and added laws after the fact. How is any of this even legal? I am so angry with all of this vigilante craziness. Now they’re trying to pass a law in Alabama for castration as an added bonus for release from prison. All of this is so sickening.

    • #56564 Reply
      MARK S

      One of the primary reasons for the ubiquitous hate of sex offenders is the media. Also, years ago the lies perpetrated upon the courts with skewed sex crime statistics as well as Congress of the “frighteningly high” sex crime rates. The states have written sex offender registry laws based upon a “CONCLUSIVE PRESUMPTION” and deny them virtually almost all due process rights that ALL sex offender CANNOT be trusted. In effect, So, if a person has committed a sex crime or crimes, he/she will continue in that behavior as the state and federal governments see it – if not in the present, then in the future…. Further, sex offenders are easy targets for society, and the governments therefore, sex offenders are a ‘POLITICALLY UNCONTESTED” group and inherent to suspect criminal activities. This is the gist of it…. Except for a few small groups, such as NARSOL, how many other people do you see, read or hear coming to the defense and aid of a sex offender(s)?

  • #56449 Reply

    The Substantive claim mentioned but not weighed in Connecticut DPS is actually the same claim. Those very few registrants, without plea waivers, and predating the Wetterling Act from 94, suffered a conflict of law. Those individuals were not given opportunity the constitution provides, state statutes promulgate those opportunities in black and white in trail & appeal codes. SCOTUS erred catastrophically and exacerbated the natural tendency of every administrator to act in capricious means that promote popular support but not the rule of law in the DOEs. To me it is as if some are purposefully dismantling constitutional protections.

  • #56558 Reply

    Fact of FTR,
    Like many ex post folks ( wetterling) in the system have JUDGMENTS that defy in black and white a LIFE TERM.
    However state’s AGs upon instruction from FED AG Janet Reno promulgated the ” new factor” known as SOR. (See Omnibus94). The act had ” special instructions” not directly outlined upon passage. Therefore the criminal electronic database were bui!t ( coalated) with the already convicted. The initial stages database was completely without ALL BRANCHES apporoval.

    The Fed AT alone was permitted to overthrow settled STATE judgment ( RES JUDICATA) 92 SCOTUS majority looked the other way.(97- 2003)

    States DOJ
    1. Determined I was to be on the list( w\o defense)
    2. Has convicted me for not abiding. 2-1
    3 NOW attempts to set ” registration compliance ” as a condition of bond!(1K, signature). I merely wrote “5th” along side the condition. I asked the courts commissioner for a contact ban on DOC. He claimed no authority, yet I’d seen him Grant it to the depAG, in two normal domestic violence cases not registry in the previous case.
    All because an abhorrent ex post facto law was enacted 301.451g(b).WISTAT.

  • #56601 Reply

    While my hope is Gundy will (And should) prevail, I’m nearly certain he will not. Upon listening to the oral arguments, I found Justice Breyers comments very concerning. He basicly stated concern for ruling for Gundy could swamp the courts with cases having similar grounds. In addition, it was stated the concern that thousands of offenders might escape SORNA.

    Seems to me the concern the judges should concern themselves with the constitutionality of the laws rather than the effects of enforcing the constitution. That is the primary function of the Supreme Court.

    In any event, I expect a relatively close….but ultimately disappointing ruling with regards to Gundy. I do hope I’m wrong.

    • #56663 Reply

      Most of the added court traffic is due to congressional choices ALL 51 to embrace ex post language in law construction. The founders ratified the amendment prohibiting ex post law in criminal context Art 1 for several reasons most of which had to do with fairness and efficacy in settled claims. Langraff is the case that outlined the rational.

  • #56673 Reply
    Ernest B Tucker

    I don’t know if the moderator will pass this, but I am submitting it anyway.
    Follow the bouncing buck folks. The prosecutors budget is based on the number of convictions obtained. The courts budget is based on the number of cases handled , and the BOPs budget is based on the number of beds that are filled. The budget for the parole or probation office is based on the number of parolees or those on probation.
    The more people that are under the control of the government justifies more money from the Congressional budget.
    The registry is another way of justifying money to administer this program. The more people, the more money.
    If you notice, SORNA was mandated by the Federal Government, but is administered by the individual states. The more people affected the more money required.
    The Federal Government coerced the states into enacting these laws by threatening to withhold federal funding if they didn’t. So with that the 10th amendment went right out the window.
    If the financial factors could be removed from the equation then a good many of these ridiculous laws would be done away with.
    So once again I say, follow the bouncing buck.
    We are slaves to the government prison industry.
    President Eisenhower stated that we needed to beware of the military industrial complex. I will say that we need to beware the prison industry.

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