SCOTUS preview guest post: "Strange Bedfellows at the Supreme Court"

I am very grateful that Wayne Logan, the Gary & Sallyn Pajcic Professor of Law at Florida State University and the author of Knowledge as Power: Criminal Registration and Community Notification Laws in America (Stanford Univ. Press, 2009), reached out to offer me an original commentary on a case to be heard by the Supreme Court next month.  Here it is:

Herman Gundy, convicted of providing cocaine to a young girl and raping her, is a decidedly unlikely emissary in conservatives’ campaign to dismantle the administrative state.  In Gundy v. United States, to be argued the first week of the Supreme Court’s coming term, the Justices will address whether Congress violated the “non-delegation doctrine” when it directed the U.S. Attorney General to decide whether the federal Sex Offender Registration and Notification Act (SORNA) should apply to individuals convicted before its 2006 enactment.  Gundy, whose rape conviction was in 2005, has a dog in the fight because the attorney general made SORNA retroactive, and Gundy was convicted of a felony under SORNA after he traveled interstate in 2012 without informing authorities.

The Court’s decision to hear Gundy’s case came as a major surprise.  The Justices have not invalidated a congressional delegation in over eighty years and all eleven federal appellate courts addressing the issue have concluded that the delegation was proper.  At least four Justices, the number needed to grant certiorari, however, thought the issue worth considering, clearing the way for a potential major assault on the modern administrative state, which is shaped by countless congressional delegations of authority to agencies.

If this occurs, it would be ironic.  Conservatives usually tout people like Gundy as poster boys for tough-on-crime policies, such as SORNA, which was enacted by a Republication Congress, signed into law by Republican President George W. Bush, and made retroactive by his attorney general (Alberto Gonzales).  Meanwhile, liberals, often fans of the administrative state, in areas such as environmental protection and workplace safety, tend to voice concern over such heavy-handed criminal justice initiatives.

On the merits, Gundy appears to have a strong claim.  For a delegation to be proper, Congress must provide an “intelligible principle” to guide the delegated decision, which as Chief Justice John Marshall stated in 1825 should merely “fill up the details” of a law’s application.  With SORNA, Congress simply directed the attorney general to decide the retroactivity question — hardly a detail, as it affected half a million people and has required significant federal prosecutorial resources.

Whether SORNA should apply retroactively is the kind of basic policy question that democratically accountable members of Congress should decide.  But they punted, for obvious political reasons.  The House and Senate could not agree on retroactivity and, when states later provided the attorney general input on SORNA’s possible retroactivity to their own registries, many vigorously objected to retroactivity.

Regardless of whether registration and notification actually promote public safety, which research has cast doubt upon, federal policy on the issue has long been marked by overreach.  Since 1994, when Congress first began threatening states with loss of federal funds unless they followed its directives, federal involvement has rightly been viewed as both foisting unfunded mandates upon states and a ham-fisted effort to policy-make in an area of undisputed state prerogative: criminal justice policy.

When Gundy is argued and decided Justice Neil Gorsuch will likely play a key role.  As a member of the Tenth Circuit Court of Appeals, then-Judge Gorsuch wrote a lengthy dissent from his colleagues’ refusal to reconsider en banc their decision that the SORNA delegation was proper.  Gorsuch advocated a requirement of heightened guidance in criminal justice delegations, justified by the unique “intrusions on personal liberty” and stigma of convictions.  There is considerable appeal to Justice Gorsuch’s view, which the Court itself suggested in 1991.  Moreover, unlike other policy areas, such as environmental quality and drug safety, criminal justice typically does not require scientific or technical expertise, lessening the practical need for delegations in the first instance.

Ultimately, the Court might conclude, with justification, that the SORNA delegation was invalid because it lacked any “intelligible principle.”  On the other extreme, as Justice Thomas might well urge, the Court could outlaw delegations altogether.  Chief Justice Roberts, in a dissent joined by Justice Alito, recently condemned the “vast power” of the administrative state, and Court nominee Judge Brett Kavanaugh has signaled similar antipathy.  Meanwhile, it is hard to say how the Court’s liberals will vote, given the conflicting interests at work.  Time will tell how the dynamic in Gundy plays out but the uncertainty itself provides yet more evidence of the high stakes involved in filling the Court’s current vacancy.