By Lisa Soronen
In Gundy v. United States the U.S. Supreme Court held 5-3 that the Sex Offender Registration and Notification Act’s (SORNA) delegation of authority to the attorney general to apply SORNA’s requirements to pre-act offenders doesn’t violate the constitution’s nondelegation doctrine.
The nondelegation doctrine holds that Congress cannot assign its power to legislate to another branch of government.
SORNA, enacted in 2006, established a comprehensive national sex offender registration system. The law is Congress’s third sex offender registry law and covers “more sex offenders, and imposes more onerous registration requirements, than most States had before.”
SORNA states “[t]he 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.” In 2007 the attorney general issued an interim rule stating that SORNA’s registration requirements were retroactive and applied in full to pre-act offenders.
Herman Gundy is a pre-act offender who failed to register after being released from prison. He argued 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.
Justice Elena Kagan, writing for the three other justices (Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor), concluded that Congress’s delegation of authority to the attorney general in SORNA is constitutional. “So we have held, time and again, that a statutory delegation is constitutional as long as Congress ‘lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform.’”
Kagan also stated that “if SORNA’s delegation is unconstitutional, then most of Government is unconstitutional.” Congress is “dependent” on the “need to give discretion” to executive officials charged with implementing its programs. The court’s long-standing course of refusing to second-guess these “necessities of government”
Gundy claimed that SORNA “grants the Attorney General plenary power to determine SORNA’s applicability to pre-Act offenders—to require them to register, or not, as she sees fit, and to change her policy for any reason and at any time.” Kagan agreed that if SORNA, in fact, did this “we would face a nondelegation question.”
But in a previous case, Reynolds v. United States (2012), the Supreme Court held that SORNA applied to pre-act offenders, but only when the attorney general said it did. This was because “instantaneous registration” of pre-act offenders “might not prove feasible.” So, the attorney general’s role under SORNA was limited: to apply it to pre-act offenders as soon as he or she thought it feasible to do so.
Granting this authority to the attorney general didn’t violate the non-delegation doctrine, Kagan reasoned, because Congress set out an “intelligible principle” to guide the attorney general’s exercise of authority. He or she had to require pre-act offenders to register as soon as feasible.
Justice Bret Kavanaugh didn’t participate in this case. Justice Samuel Alito wrote a one-page decision concurring in judgment only stating: “I cannot say that the statute lacks a discernable standard that is adequate under the approach this Court has taken for many years.” But he also wrote that “[i]f a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.”
Justice Neil Gorsuch wrote a lengthy opinion criticizing the nondelegation doctrine which his more conservative colleagues (Chief Justice John Roberts and Justice Clarence Thomas) joined.
Lisa Soronen is the executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.