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June 20, 2019

SCOTUS plurality says SORNA delegation of statute's reach to Attorney General "easily passes constitutional muster"

The Supreme Court this morning finally released its opinion in Gundy v. US, 17-6086 (S. Ct. June 20, 2019) (available here). Justice Kagan authored the lead opinion (joined by Justices Breyer, Ginsburg and Sotomayor), which starts this way:

The nondelegation doctrine bars Congress from transferring its legislative power to another branch of Government. This case requires us to decide whether 34 U.S.C. §20913(d), enacted as part of the Sex Offender Registration and Notification Act (SORNA), violates that doctrine. We hold it does not.  Under §20913(d), the Attorney General must apply SORNA’s registration requirements as soon as feasible to offenders convicted before the statute’s enactment.  That delegation easily passes constitutional muster.

Here is the full text of Justice Alito's concurrence, which served to provide the key fifth vote for the outcome:

The Constitution confers on Congress certain “legislative [p]owers,” Art. I, §1, and does not permit Congress to delegate them to another branch of the Government. See Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 472 (2001). Nevertheless, since 1935, the Court has uniformly rejected nondelegation arguments and has upheld provisions that authorized agencies to adopt important rules pursuant to extraordinarily capacious standards. See ibid.

If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.  But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.

Because I cannot say that the statute lacks a discernable standard that is adequate under the approach this Court has taken for many years, I vote to affirm.

Justice Gorsuch's opinion, joined by the Chief Justice and Justice Thomas, starts this way:

The Constitution promises that only the people’s elected representatives may adopt new federal laws restricting liberty. Yet the statute before us scrambles that design.  It purports to endow the nation’s chief prosecutor with the power to write his own criminal code governing the lives of a half-million citizens.  Yes, those affected are some of the least popular among us.  But if a single executive branch official can write laws restricting the liberty of this group of persons, what does that mean for the next?

Today, a plurality of an eight-member Court endorses this extraconstitutional arrangement but resolves nothing.  Working from an understanding of the Constitution at war with its text and history, the plurality reimagines the terms of the statute before us and insists there is nothing wrong with Congress handing off so much power to the Attorney General.  But JUSTICE ALITO supplies the fifth vote for today’s judgment and he does not join either the plurality’s constitutional or statutory analysis, indicating instead that he remains willing, in a future case with a full Court, to revisit these matters.  Respectfully, I would not wait.

The time it took for Gundy to be resolved and this outcome suggests that the delay of Justice Kavanaugh's confirmation turned out to be a big deal in this one case.

June 20, 2019 at 10:08 AM | Permalink


What can one say but that this is another example of sex offender exceptionalism. They could have done a lot of different things. They could have rescheduled for next term and let the newest Justice vote. They could have affirmed the lower court on a 4-4 tie. Instead, one cannot escape the fact that once again no majority wants to vote for a sex offender.

Understand that the non-delegation doctrine as it has been understood is dead. They just aren't willing to kill it to benefit a sex offender.

Posted by: Daniel | Jun 20, 2019 3:53:31 PM

I supposed I should have said "one its last legs" rather than dead. You can't kill something already dead.

Posted by: Daniel | Jun 20, 2019 3:55:10 PM


Reports of the non-delegation doctrine's death have been greatly exaggerated.

Posted by: just passing by | Jun 20, 2019 10:11:55 PM

Heinous crime exception the constitution is the explanation.

Posted by: ? | Jun 20, 2019 10:13:35 PM

Horse puckey even a plain reading of the 2002 doe v smith makes pretty much every sex offender law unconstitutional and illegal.

Only a two-faced chicken or liar or a retard could rule like this.

Lets look at that decision in a 5-4 vote they ruled

1 that it was not lije parole or probation.
2. There was NO in person repirting requirement.
3. They could LIVE where they want
They could WORK where they want
They could WALK where they want.
4 they were required to do the minimal duty to return a 3x5 postcard each year.

NOW it's
1 report from 1 to 20 times a year at the lical police or sheriff's office and in many states PAY forbthe so called privilege.
2. The state now tells then where they can NOT LIVE.
The state now tells them where they can NOT WORK.
The state now tells then in many placed where they can NOT WALK.

Sounds like parole or probation to me.
What this illegal and probably treasonous decision does is make the retroactive conditions of parole and probation apply to anyone ever convicted of a sex crime with no release in sight.

Posted by: Rodsmith | Jun 22, 2019 1:51:43 AM

Sorry but if this was any other case where you went to court and the judge said what you were doing was legal because you were NOT doung a.b. and c. Then you went out and did the very things they said would have made your conduct illegal you would be UNDER the jail so fast it would not be funny. On a contempt of court charge. Sorry but the govt is NOT exempted from that.

Posted by: Rodsmith | Jun 22, 2019 1:57:23 AM

This decision is one of the worst in Supreme Court history---for many reasons, not the least of which is the fact that the government has changed its representations to courts regarding the contours of the AG's discretion.

As for the merits--this is an ex post facto law.

Posted by: federalist | Jun 22, 2019 9:12:46 AM

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