Supreme Court

In Sharp Dissent, Neil Gorsuch Faults SCOTUS for Letting the Attorney General 'Write His Own Criminal Code'

The conservative justice comes out swinging on behalf of the non-delegation doctrine.

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The U.S. Constitution places the federal lawmaking power in the hands of Congress. Yet today a narrow majority of the U.S. Supreme Court held that Congress did not violate the Constitution, even though it passed a law which delegated a significant degree of lawmaking authority to the attorney general. Writing in dissent, Justice Neil Gorsuch faulted his colleagues for letting Congress "hand off to the nation's chief prosecutor the power to write his own criminal code."

At issue in today's ruling in Gundy v. United States is the Sex Offender Registration and Notification Act of 2006 (SORNA). Among other things, SORNA requires convicted sex offenders to register, check in periodically in person, and share personal information with the authorities.

It also says this: "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." Put differently, Congress left it up to the attorney general to decide how to deal with the estimated 500,000 individuals whose sex crime convictions predate SORNA's passage.

"It would be easy enough to let this case go," Justice Gorsuch acknowledged in his dissent. "After all, sex offenders are one of the most disfavored groups in our society. But the rule that prevents Congress from giving the executive carte blanche to write laws for sex offenders is the same rule that protects everyone else." In Gorsuch's view, SORNA effectively combined the Article I powers of Congress with the Article II powers of the executive in a single federal official. That result, he argued, marks "the end of any meaningful enforcement of our separation of powers."

Gorsuch's dissent was joined by Chief Justice John Roberts and Justice Clarence Thomas. Justice Brett Kavanaugh took no part in the case.

In her majority opinion, Justice Elena Kagan, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, argued that if the congressional delegation at issue in this case qualifies as 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 also buttressed her opinion by favorably citing and quoting from a past dissent written by the late Justice Antonin Scalia, who warned the Court against feeling "qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law."

Justice Samuel Alito concurred in the Court's judgment today, making the final vote 5-3. But Alito also wrote separately to say that if the Court wanted to reconsider its overall jurisprudence in this area, "I would support that effort. But because a majority is not willing to do that," he continued, "it would be freakish to single out the provision at issue here for special treatment." In other words, Alito might agree with the reasoning in Gorsuch's dissent in a different future case.

The Supreme Court's opinion in Gundy v. United States is available here.

NEXT: Activists Want a Problematic Mural of George Washington Destroyed. It Will Cost a High School $600,000.

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  1. Makes me giggly to think that “sex worker” has come so far as to be used in a Supreme Court decision.

  2. And what’s with this idea that anyone, let alone an Attorney General, can apply a new law retroactively? Isn’t that ex post facto and forbidden?

    1. In her majority opinion, Justice Elena Kagan, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, argued that if the congressional delegation at issue in this case qualifies as unconstitutional, “then most of Government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs.

      FINALLY, those bitches are on to something

      1. I was about to post the same, but you put it better. Those BITCHES…

      2. FINALLY, those bitches are on to something

        Keep dreaming. They’re only ‘on to’ it as an unimaginable reality, probably, in their mind, a hellscape.

  3. best supreme court justice in a long long long time.

    1. Can you think of one better at all?

      1. Judge Dredd?

  4. Gorsuch may have already surpassed Scalia and Thomas to achieve GOATSCOTUS

    1. GOATJOTUS

    2. When all is said and done, Gorsuch will be Trump’s greatest contribution to freedom.

      1. then most of Government is unconstitutional

        *nodding*

        go on…

        1. oops, wasn’t meant to be a reply

      2. Agree with all the above

        1. Trump…most libertarian president ever

          1. Well.. since, hmm let me see, Reagan?

    3. GOATUS

      1. +1000 to all of the above.

  5. …most of Government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs.

    Heaven forbid.

  6. I really do not understand why Alito handled that the way he did. If he’d simply joined the dissent, it would have been a 4-4 split decision, the lower court’s decision would still have been upheld and it would have more clearly laid the philosophical groundwork to overturn the delegation doctrine in some future case. Making it a 4+1 to 3 decision just muddies the waters.

  7. Too bad Trump isn’t a convicted kiddie fucker so he could get the entire Reason staff carrying his water.

    1. Methinks you missed something….oh yeah, the entire point of this article.

    2. Right, as if his toadie would apply the rules *ex post facto* to the guy who got him his higher pension with the second AG appointment.

      What tickles me most is trump won’t get a federal pension from all this if he doesn’t get re-elected, because it takes 5-years minimum to qualify. Boy, will the orange buffoon blow his stack when that happens.

  8. “then most of Government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs.”

    OK. So we dump most of the government and start over?
    Dibs on HHS and Education. I will need 3 months and a secretary to process the terminations, and sale of real property.

    1. Now that’s progress.

    2. DHS isn’t first on the block?

  9. “then most of Government is unconstitutional”

    THATS THE POINT AAAAAAAAAAAAAAAAAAA

  10. This is a sad day for our constitution.

    Very sad day. Remove Gundy being a sex offender and it wins 9 to 0. Everything that was argued is completely unconstitutional. Our government does not give one man the power to decide if over 500,000 people can have law be retroactively applied to them. And that same 1 person decide how to punish. This is just absolutely horribly wrong.

    I hope congress decides to go after DUI’s next and create a law if you get a DUI you can never drive again. Then let the attorney general decide that it applies to everyone prior that ever had a DUI.

    1. “Very sad day. Remove Gundy being a sex offender and it wins 9 to 0. Everything that was argued is completely unconstitutional.”
      While the latter is true, the conclusion that the majority opinion calls out about most of government being unconstitutional means the same 4 justices that initially wrote in the majority would have defended the law regardless, because the ends justify the means.

      Remove Gundy being a sex offender, and Alito at least might have the balls to defend his rights, but that doesn’t change the outcome otherwise, and it’s definitely not a 9-0 slam dunk.

  11. After all, sex workers are one of the most disfavored groups in our society.

    Where’s ENB at? Here we have one of the highest-ranking men in government, appointed by Trump, talking about sex workers as though they were people being unfairly punished by the law, the conservative male judges standing in his corner and the female judges standing opposite him and ENB’s nowhere to be found?

    I can only assume it’s out of it’s out of confusion and possible embarrassment. It’s also possible she’s an oblivious hack that’s too busy DOXing people for making sandwich jokes.

    1. It’s also possible she’s an oblivious hack that’s too busy DOXing people for making sandwich jokes.

      Or worse, equating the government’s protection of Facebook and Youtube with the HRC levying fines against Masterpiece Cakeshop like a legally illiterate retard.

      1. Or, you know, read the actual linked dissent and realize Root mis-quoted it rather than being a sanctimonious prig.

        1. Or, you know, read the actual linked dissent and realize Root mis-quoted it rather than being a sanctimonious prig.

          I wasn’t talking about Root. I was talking about, despite her beat over the last couple years having been all things sex worker-related, ENB’s penchant or reassignment to portraying Section 230 as a law Congress had to pass to protect free speech.

          If you’ve got an issue with Root or ENB or other misquoting or misrepresenting the sources they quote I suggest you take it up with Reason. I feel I should warn you that there’s a lot of people in that particular line.

  12. Neil Gorsuch – opposes double jeopardy, opposes overcriminalization, opposes delegating unrestricted lawmaking powers to the executive….

    No wonder the liberals are pissed off that Merrick Garland didn’t get this seat.

    1. Doesn’t fucking matter what he’s for. The seat was stolen in broad daylight. Now make your pathetic partisan excuses for that shameless, nihilistic behavior.

      1. Tony
        June.20.2019 at 3:49 pm
        “…The seat was stolen in broad daylight…”

        Sometimes, you’re funny.
        You’re a fucking pathetic lefty loser ignoramus, but sometimes you’re funny.
        We’d still be better off if your mom had elected to abort you.
        Fuck off and die.

      2. Tony, it’s okay to like good ideas. It’s even better to adopt them from your foes because it’s disarming. There’s alot to like about Gorsuch and we should celebrate it when we see it.

        1. In other words, given that it’s a stolen seat, it could be worse.

          I don’t agree with him on this one though.

      3. It wasn’t stolen, you half wit. The constitution doesn’t require the Senate to hold a confirmation vote if they don’t want to. It’s called “politics”, and politics ain’t beanbag. You seriously think that the dems wouldn’t have done the same thing if positions were reversed?

        1. Blah blah blah. No they wouldn’t because they play politics as beanbag. Fair play to McConnell. But if Democrats did have a spine and did the same thing, Republicans would literally nuke Congress in their outrage.

          1. Democrats really should have a spine on this, only they don’t ever take up arms over it because the base doesn’t care about the judiciary, only perhaps “repealing Citizens United”, which the pols on both sides were overwhelmingly grateful for and won’t ever see time in court again.

      4. LOL. Actually, yeah, it does matter what he’s for. Garland was a copsucking centrist toad. He deserved his fate. Not that turtleman McConnell cared about THAT, mind you, being a total copsucker himself, but so what, the result was the same. That’s all that matters and that’s all I care about.

        Your precious “morality” is irrelevant, Tony. Grow up and get over it.

  13. the late Justice Antonin Scalia, who warned the Court against feeling “qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.”

    Um, isn’t it SCOTUS’s job to second-guess the other branches?

  14. So in order to run all the complex programs that make this country function, should Congress appropriate money to form its own executive bureaucracy? Or should its 535 members and their staffs do the executing themselves?

    Not that it isn’t a problem sometimes when they push off decision-making to the executive, especially in the case of war powers.

    1. “…Not that it isn’t a problem sometimes when they push off decision-making to the executive, especially in the case of war powers.”

      And we well remember how your fave lying POS was very careful not to use those powers, right?
      Fuck off and die.

      1. Bush was not my fave anything.

        1. You know who else bombed more countries than Bush?

        2. No, that would be Hillary, fellow neocon and close, personal friend of asshole Bush. The one woman whose pussy you’d willingly lick. I’m also willing to bet you’d let her fuck you with a strapon.

    2. Don’t be silly, nobody is suggesting that Congress should personally run the Executive-branch bureaucracy, we’re just suggesting that the Executive-branch bureaucracy shouldn’t even exist.

      1. we’re just suggesting that the Executive-branch bureaucracy shouldn’t even exist

        Nicely played, sir.

    3. Maybe congress should stick to passing laws that don’t need to be interpreted like the answers from the Oracle at Delphi.

  15. “then most of Government is unconstitutional”

    I see this is causing some serious tumescence among the commenters.

    1. this is causing some serious tumescence among the commenters

      As long as there’s no human trafficking involved in the treatment of such a condition …

      Free Markets + Free Minds + Free Tumescence Relief

  16. Shit Gorsuch, I bet sex workers have a higher approval rating than Congress.

  17. “then most of Government is unconstitutional

    Finally, one of the lawmakers in a black nightie has awakened to the truth…..
    Case in point, this very matter before the High Court: WHERE amongst the few and defined enumerated powers assigned the Unites States of America is there anything assigning any authority over anything to do with sexual activity given FedGov? On what basis is the AtG even addressing a sexual offender registration? That sort of thing is a STATE issue.
    So the majority of black-be-nightied lawmakers pontificating in this case are violating their own oaths of office, as did Congress (the alledged “REAL” lawmakers) when they created the unconstitutional law establisihing the sex offender list. AND other Fed agencies, such as DEA, BATF (all three letters after the B for Bureau fall outside the bailiwick of FedGov. ), EPA, ATC, FAA, Ed, FDA, NTSB, FMVSA, Ag, and so on.

    1. EXACTY!
      And the biggest problem with the “legal” system.
      The first consideration the Supreme Court should make is: Was this law within the powers of Congress to enact, in the first place?
      Instead we get rulings based on whether a piece of legislation, not grounded in Article 1, Section 8, should have used a comma in stead of a semicolon.
      0blamocare’s penalty a tax, anyone?

  18. dependent as Congress is on the need to give discretion to executive officials to implement its programs

    God, I wish I could that fucking lazy at my job.

    ‘Hey, you, go build a wastewater treatment plant and tell me how much it cost when you are done. Did I say I wanted to see your receipts? Just give me a budget and don’t fucking talk to me until next year.’

    ‘Receipts. Like I want to be held accountable. What a rube.’

    1. ‘Hey, you, go build a wastewater treatment plant and tell me how much it cost when you are done. Did I say I wanted to see your receipts? Just give me a budget and don’t fucking talk to me until next year.’

      You think they actually tell people directly to build wastewater treatment plants? Hell no. They’ve got people for that.

  19. Alito was signaling that they’re close to overturning Chevron deference.

    1 more originalist judge to swap for a judicial authoritarian.

    This #LibertarianMoment brought to you by Orange Man and the Deplorables who supported him, over the hysterical pants shitting opposition of @Reason.

    You’re welcome.

  20. Better title: “In a ruling intended to protect the administrative state at all costs, liberal judges bash a large hole in the bulkhead isolating the executive from making law.”

  21. The point here isn’t whether the delegation of power was constitutional. The point is whether the court has authority to tell congress how to do this.

    The real failing in this case is the ex post facto angle.

  22. […] dissent, Justice Gorsuch wrote a downright beautiful and compelling essay on why the framers of the Constitution divided government up into three branches in the first […]

  23. […] dissent, Justice Gorsuch wrote a downright beautiful and compelling essay on why the framers of the Constitution divided government up into three branches in the first […]

  24. If The Congress “donates” it’s law making powers and responsibilities to the executive branch, in the person of a political appointee, The Attorney General in this case, why the blazes are we paying quite significant levels of compensation to that same Congress. Seems as if something is out of whack here, seriously out of whack.

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