Law

Gorsuch Challenges Blank Check for the U.S. Attorney General

A case to watch for both criminal justice reformers and for critics of executive overreach.

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In October, the U.S. Supreme Court heard oral arguments in an important case that asks whether Congress violated Article I, Section 1 of the Constitution by delegating its lawmaking authority to the executive branch.

That question is at the heart of Gundy v. United States, in which convicted sex offender Herman Avery Gundy is challenging the Sex Offender Registration and Notification Act of 2006 (SORNA), which among other things requires convicted sex offenders to register, check in periodically in person, and share personal information with the authorities.

The law also contains this provision: "The 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 other words, Congress left it up to the A.G. to determine how to deal with the estimated 500,000 individuals whose sex crime convictions predate SORNA's passage.

"SORNA's delegation provision grants unguided power to the nation's top prosecutor to expand the scope of criminal laws and to impose burdensome, sometimes lifetime registration requirements on hundreds of thousands of individuals," Sarah Baumgartel, Gundy's attorney, told the Supreme Court in October. That delegation of power, Baumgartel maintained, "combines criminal law-making and executive power in precisely the way that the Constitution was designed to prohibit."

If we read between the lines of the oral arguments, a couple of members of the Supreme Court seemed to be leaning toward siding with Gundy.

"The specific statutory section dealing with pre-enactment offenders says unambiguously that the attorney general decides whether, how, when, and who. So you don't even know if you're going to be subject to this law," observed Justice Neil Gorsuch. "We say that vague criminal laws must be stricken.…What's vaguer than a blank check to the attorney general of the United States to determine who he's going to prosecute?"

Justice Sonia Sotomayor continued that line of questioning. "I think a fundamental issue that Justice Gorsuch has been aiming at is—especially in criminal law—is it just to delegate to the attorney general a fundamental question about who gets covered or doesn't get covered by a statute?" she asked. "That seems like at the core of what a law is: If someone does X act, you're covered or you're not."

We won't know until the current term ends in June 2019 whether a majority of the Supreme Court will see this case in the same light as Gorsuch and Sotomayor. If they do, it will be a significant win both for criminal justice reformers and for critics of executive overreach.

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  1. That question is at the heart of Gundy v. United States, in which convicted sex offender Herman Avery Gundy is challenging the Sex Offender Registration and Notification Act of 2006 (SORNA), which among other things requires convicted sex offenders to register, check in periodically in person, and share personal information with the authorities.

    This law can be struck down on multiple provisions:
    1. ex post facto ban in the Constitution
    2. There is no enumerated power to punish ex-convicts (sexual registry) after they have completed their sentence.
    3. There is no enumerated power to require any American to register, check in periodically in person, and share personal information with the authorities.

    1. Right on 1. But doesn’t probation also fall into your 2 & 3? If the law reads that one must check in periodically for X years after leaving confinement, what’s the problem?

      1. Probation is still a state custody. Same with parole.

        Probation is an alternate to jail time but you are still under state custody.

        Parole is an early release for prisoners and the person is still under state control.

        The people subject to these unconstitutional registries have no other state requirements, custody, or supervision.

        Its like someone getting convicted and then telling them that they can never step foot inside a government building even after their parole or probation sentence is complete.

        1. “Its like someone getting convicted and then telling them that they can never” possess a firearm?

          1. Or use a computer.

            1. So excons cannot use cell phones, ipads, ATM machines….? They are computers.

              No authority for lifetime ban of computers.

              1. Violates constitutional prohibition against bills of attainder.

          2. Unconstitutional violation of the 2nd amendment and the constitution prohibiton of Bills of Attainder.

      2. “But doesn’t probation also fall into your 2 & 3? If the law reads that one must check in periodically for X years after leaving confinement, what’s the problem?”

        Parole/Probation is:

        1. Always finite.
        2. Part of the original sentence set by the judge.

        1. 2. Part of the original sentence set by the judge.

          True for Probation, however parole is allowing a person to forgo the entirety of their sentencing, based upon behavior while in prison, and continued behavior after release until the sentence the judge imposed is complete. The only thing the judge may put regarding parole at sentencing is when they can be eligible.

          1. As you quite clearly describe, parole is part of the original prison sentence imposed by the judge. It’s a supervised release from custody, but it’s still part of the prison sentence, it ends when the prison sentence runs out.

    2. 1 already went to the Supremes and they found a way to justify it. link

      1. As with ObamaCare, the SCOTUS is wrong.

        The fact that the many justices on the SCOTUS cannot read plain constitutional language and do their jobs is clear.

        1. Another way to know that the SCOTUS is wrong is because later courts change their minds.

          Dred Scott.
          Korematsu.

          If the SCOTUS is interpreting the Constitution correctly, they never need to reverse themselves. The Constitution can be amended and the SCOTUS can change accordingly but they would not be reversing themselves.

          The SCOTUS also uses voting to decide cases which can easily lead to incorrect interpretations. Politics can result in people not seeing the forest for the the trees.

          1. Another way to know that the SCOTUS is wrong is because later courts change their minds.

            Which is why many people argue that Rule of Law is a fiction. If courts can read the exact same words and come up with totally opposite interpretations, then there is no rule of law. There is only rule of man.

            And as I’ve said before, legislation and law are not synonyms. Law is organic. It grows from the expectations of society. Legislation is not. Sometimes legislation gets it right and codifies the laws of society into legislation. Other times legislation gets it totally wrong. But legislation is not law, and legislators are not lawmakers.

            This is your cue to completely ignore what I said and start calling me names. Go ahead. Everyone knows that that’s what you do when you have no argument or don’t understand what someone said. What are you going to call me this time? Anarchist? Minarchist?

            Or you could actually respond to the point instead of being an asshole.

            1. “Which is why many people argue that Rule of Law is a fiction. ”

              Yes, unfortunately the Constitution, all the laws, and regs were written and are interpreted by humans. Until AI advances sufficiently this will be true. Separation of powers and several levels of review is about as close as we can get to the rule of law.


            2. Which is why many people argue that Rule of Law is a fiction.

              Of course it is, just like natural rights and every other thing mankind has ever dreamed up. They are ideals, not some law dictated by a god or nature.

            3. The constitution works only if we hold the government to what is on paper.

              Rule of law is not the problem. Letting government bureaucrats violate the rules is the problem.

              Its like saying we should scrap all criminal laws because some prosecutors are not following the law.

        2. I don’t disagree. However it appears to me that the courts see their job more as deferring to the legislature than being a check on its power.

          1. Hopefully that will change with Gorsuch, Thomas, and Kavanaugh (possibly) as a more powerful voting bloc.

        3. Well we have Ginsburg and Breyer! Agreeing with you, maybe Thomas has realized his error…

      2. However much of what they based their decision was not actually true. And the SCOTUS can decide to review itself and even reverse itself if it finds that it was in error.

    3. #3 would seem to wipe out Selective Service too.

      1. Article I, Section 8, Clause 12:
        To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

        The Raising an army enumerated power probably makes the Selective Service okay.

        I am against the draft as it makes the military less effective compared to people who want to fight. Its also unnecessary for popular wars, as WWII saw more volunteers than draftees in 1941 and 1942.

        1. Yeah, #3 may be true as a general statement but there are plenty of exceptions which are enumerated. For another example, the 16th Amendment makes it pretty clear that Congress can require you to register and share information for the purposes of taxation.

        2. The good thing about the draft was that it put the pain of war on all men (patriarchy not withstanding), thus bringing it into every part of society. Volunteer armies draw a smaller fraction from the ‘elites’ for example.

          The draft is what effectively ended Vietnam. Whither Iraq, Afghanistan, Yemen, Syria, etc?

          1. I’m against a draft, but this is the one huge advantage of having one. Military adventurism gets (relatively) held in check.

            1. BS. Add another 3 million soldiers to the armed forces, and the generals see fit to start shooting at anybody that looks sideways at us.

          2. Well once we gave up substitutes…or lenient draft boards…

        3. There is also an argument (I don’t know if this has ever been considered by the courts) that a mandatory draft violates 13A.

    4. If you don’t want these scum bags preying on the innocent, lock them up for life. The registry is pointless (does in make you sleep better at night knowing there’s a child rapist living two house down rather than not knowing?) and Unconstitutional. Life sentences are not. Neither is heavily supervised parole or probation. But forcing a free citizen to submit to surveillance for life after their supposed time has been served is not legal. Lock them up or let them go. Stop with the half measures.

      1. ^this.

        Sentence these people to longer prison terms or let them be after their sentence is complete.

      2. I’m still looking for there to be a Constitutionally granted power, or an overwhelming public interest, for there to be a federal law, regarding “sex” crimes.
        Aren’t the states supposed to handle powers not enumerated?

  2. AFAIK the ACA is also a blank check. Get on it, Gorsuch!

    1. We’re learning that everything Congress does is a blank check. Just declare “national security” and the executive can do just about anything. Tariffs, warfare, spy on Americans, murder Americans abroad, etc.

      1. At least Trump, Gorsuch, and a few other people in government are throwing steel pipes in the cogs of government.

        It might only be a slow down but there is something to slowing down the speeding train of runaway abuses to the Constitution.

        1. Like bump stock bans? Trump’s throwing steel pipes. Some happen to land in the cogs of government. Some land in the cogs of liberty, as it were. Duck and cover…

          1. It is astonishing that thus is not considered an outrage by all right thinking people, I guess they must actually have principles when it comes to banning guns, and presumably abortion.

            1. Agreed. If the President can just ban whatever he wants by executive fiat than Obama really wasn’t trying very hard, it would seem.

  3. What’s a not-gay way to ask him to go camping with me?

    1. “found chick for 3-way. let’s go camping.”

  4. >>>What’s vaguer than a blank check to the attorney general

    vaguer beats spellcheck neat. also, isn’t Congress’ very existence a vaguer blank check?

  5. Why are the buzzkills at SCOTUS messing with the sweet gig Congress has got going? Fat paychecks and cushy jobs with fantastic perks, all of the authority and none of the responsibility, why’s SCOTUS wanna demand they get off their fat lazy asses and do the job they were hired to do? Can’t they just pawn the hard choices off on the bureaucracy? Congress gets to claim it’s the bureaucracy’s fault, the bureaucracy gets to claim they’re just doing their job, nobody’s accountable and nobody’s responsible – ain’t that living the dream? The only sweeter gig than being a leading member of Congress is making sure you’re a leading member of the minority party and that way you can talk all you want about all the wonderful things you’d do if your party had control of Congress and you don’t have to lift a finger to do a goddamn thing.


  6. In October, the U.S. Supreme Court heard oral arguments in an important case that asks whether Congress violated Article I, Section 1 of the Constitution by delegating its lawmaking authority to the executive branch.

    I can already tell you that Supreme Court will never overturn this. Blah blah disruption blah blah precedent.

  7. Put a check on executive overreach?
    Are you kidding.
    We need a strong executive that isn’t afraid to make tough decisions.
    Did Hitler care about “executive overreach?”
    Did Stalin care out “executive overreach?”
    Did Mao care about “executive overreach?”
    Did Fidel Castro care about “executive overreach?”
    No, and just look at the wonderful results they produced.

  8. We could call this the Mueller principle, wherein an investigator/prosecutor can do whatever he wants to whomever he wants. Democrats seem to be united in their praise for such a principle.

  9. Ex post facto lawmaking much?

  10. Ex post facto lawmaking much?

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