Reply To: Supreme Court asks for input of Solicitor General; what does this mean?


“On the other hand, if the Supreme Court grants Michigan’s request and agrees to review the 6th Circuit’s decision, anything could happen, some of which would be very bad for us.”

Not necessarily. Gorsuch might be key in ruling against retroactive application of SORNA, at the very least.

In a CNN write-up of Gorsuch’s key rulings:

“In this [United States v. Nichols], in a dissent from the full 10th Circuit’s refusal to rehear a three-judge ruling with which he disagreed, Gorsuch strongly objected to how much regulatory power a federal statute — the Sex Offender Registration and Notification Act (SORNA) — gave to the Justice Department to apply its rules to those guilty of sex crimes predating the act’s enactment.

In his words, ‘the framers of the Constitution thought the compartmentalization of legislative power not just a tool of good government or necessary to protect the authority of Congress from encroachment by the Executive but essential to the preservation of the people’s liberty …'”

I am not convinced that he would rule on the side of government in the retroactive application of SOR laws.

“This is because the 6th Circuit did not find that the mere act of registration is in and of itself punitive.”

Although true, look at the number and scope of those enhancements.

In Doe v. Snyder, the Court of Appeals decided that retroactively imposing punishment without individual risk assessment or due process violates the Constitution. The court said a registry that does not include individual risk assessment cannot meet the state’s professed goals of public safety, and it found clear evidence that the registry does not effec­tively contri­bute to public safety: “offense-based public registration has, at best, no impact on recidivism” and laws like SORA “actually increase the risk of recidivism,” probably because they make it “hard for registrants to get and keep a job, find housing, and reintegrate into their com­munities.” The Court found that “[t]he requirement that registrants make frequent, in-person appearances before law enforcement … appears to have no relationship to public safety at all.’

Those enhancements alone would throw an extremely large monkey wrench into the effectiveness and application of the SOR laws in EVERY state should SCOTUS take it up on review if Gorsuch is on the bench.

IMO, you want SCOTUS to take it up on review.