The federal Sex Offender Registration and Notification Act’s provision that gives the Attorney General authority to determine how to apply registration requirements to people convicted before the Act is not an unconstitutional delegation of legislative authority, a plurality of the Supreme Court ruled June 20 in Gundy v. United States.

But the issue may not be over, since four justices questioned or opposed the ruling, and Justice Kavanaugh did not participate.

SORNA, enacted in 2006, gave the Attorney General “the authority to specify the applicability of the requirements” for sex offender registration “to sex offenders convicted before the enactment of this chapter” and “to prescribe rules for the registration of any such sex offenders.”

Herman Gundy was a pre-Act offender who was convicted of a sex offense in 2005.  After SORNA was enacted, he did not register.  He was later convicted of failure to register.

Gundy argued that Congress unconstitutionally delegated legislative power when it authorized the Attorney General to “specify the applicability” of SORNA to pre-Act offenders.

Justice Kagan, writing for a four-justice plurality, upheld Congress’ delegation.

“A statutory delegation is constitutional as long as Congress lays down by legislative act an intelligible principle to which the person or body authorized to exercise the delegated authority is directed to conform,” she said.

“Given that standard, a nondelegation inquiry always begins (and often almost ends) with statutory interpretation,” she said.  “The constitutional question is whether Congress has supplied an intelligible principle to guide the delegee’s use of discretion.”

The Court had previously ruled that SORNA requires the Attorney General to apply registration to all pre-Act offenders, Kagan said.

Thus, “the Attorney General’s discretion extends only to considering and addressing feasibility issues,” Kagan said.  “Given that statutory meaning, Gundy’s constitutional claim must fail” because SORNA’s “delegation falls well within permissible bounds.”

“If SORNA’s delegation is unconstitutional, then most of Government is unconstitutional – dependent as Congress is on the  need to give discretion to executive officials to implement its programs,” Kagan concluded.


Concurring and dissenting opinions

The concurring and dissenting opinions indicate that the issue may not be over, especially since Justice Kavanaugh did not participate.

Justice Alito concurred in the judgment only because the Court had eight decades of precedent upholding Congress’ broad delegation of authority.

“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,” he said.  “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.”

Justice Gorsuch, joined by Chief Justice Roberts and Justice Thomas, dissented on grounds that Congress cannot make such broad delegations of legislative authority.

The framers made law-making difficult because they believed the government’s most dangerous power was the power to enact laws restricting people’s liberty.

“If Congress could pass off its legislative power to the executive branch, the vesting clauses, and indeed the entire structure of the Constitution, would make no sense,” they said.  “Without the involvement of representatives from across the country or the demands of bicameralism and presentment, legislation would risk becoming nothing more than the will of the current President.”

They said that’s precisely what’s happened with SORNA, since different Attorneys General have adopted different positions and policies across different administrations.

The power to write criminal laws cannot be given to the Attorney General charged with enforcing them, they said.  “If a single executive branch official can write laws restricting the liberty of this group of persons, what does that mean for the next?”

“In a future case with a full panel, I remain hopeful that the Court may yet recognize that, while Congress can enlist considerable assistance from the executive branch in filling up details and finding facts, it may never hand off to the nation’s chief prosecutor the power to write his own criminal code,” Gorsuch said.  “That is delegation running riot.”