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Gorsuch and Sotomayor Fault Congress for Giving 'a Blank Check to the Attorney General'

SCOTUS weighs congressional power, criminal law, and the non-delegation doctrine in Gundy v. U.S.

Article I, Section 1 of the Constitution vests "all legislative powers" in the hands of Congress. Last week, the U.S. Supreme Court heard oral arguments in an important case that asks whether Congress violated this fundamental rule by unconstitutionally delegating its lawmaking authority to the executive branch.

The case is Gundy v. United States. At issue is 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 various personal information with the authorities. SORNA imposes various sanctions on those who fail to comply with its terms.

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…and to prescribe rules for the registration of any such sex offenders." In other words, Congress left it up to the attorney general to determine how to proceed with respect to the estimated 500,000 individuals whose sex crime convictions pre-date SORNA's 2006 passage. Gundy v. U.S. centers on whether that delegation of power is constitutional.

"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," attorney Sarah Baumgartel told the Supreme Court last week. Her client, a convicted sex offender named Herman Avery Gundy, is one such individual. SORNA's delegation of power to the attorney general, Baumgartel maintained, "combines criminal law-making and executive power in precisely the way that the Constitution was designed to prohibit."

Judging by the oral arguments, at least one member of the Supreme Court seemed quite ready to rule in favor of Baumgartel's position.

"The specific statutory section dealing with pre-enactment offenders says unambiguously that the Attorney General decides whether, how, when, and who, even 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," Gorsuch continued. "What's vaguer than a blank check to the Attorney General of the United States to determine who he's going to prosecute?"

"That's your argument stated very, very concisely," interjected Justice Ruth Bader Ginsburg, speaking to Baumgartel. Indeed it was.

Gorsuch made a related point several minutes later while questioning Principal Deputy Solicitor General Jeffrey Wall, who was then at the lectern defending SORNA's constitutionality. "Is there something unusual," Gorsuch asked Wall, "about the Attorney General's presence in this case as the chief prosecutor and kind of a conflict of interest?" Put differently, doesn't SORNA violate the separation of powers because it lets a prosecutor act as a lawmaker?

A few minutes after that, Justice Sonia Sotomayor stepped in to support Gorsuch's 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? That," she told the principal deputy solicitor general, "seems like at the core of what a law is."

It remains to be seen whether or not a majority of the Supreme Court will see this case in the same light as Gorsuch and Sotomayor seem to see it. If the Court does, it will be a significant win both for criminal justice reformers and for critics of executive overreach.

An opinion in Gundy v. U.S. is expected by June 2019.

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  • Brett Bellmore||

    It's more than a little disappointing that the issue isn't the ex post facto clause.

    I guess they're still continuing the pretense that, once you're convicted of something, they can keep coming back and tossing more penalties on top of the ones you were originally sentenced to, without violating the clause.

  • Shirley Knott||

    +1

  • OGREtheTroll||

    True, but was that in issue? one check on the Supreme Court is that its limited to ruling on a case only by what was raised in issue in the lower courts. If the parties never raised that question at trial or in the previous appeals the Supreme Court wouldn't be able to rule on that now.

  • EscherEnigma||

    No it's not. The SCOTUS can, and has, expanded their inquiry into tangential issues that want brought up previously or argued by either side.

    They don't do it often because they prefer getting "facts in evidence" and excessively debated and refined arguments, but they totally can follow whatever tangent they want.

  • steve sturm||

    That was my reaction as well. It can't be because they aren't aware of the concept, so there must be some reason it hasn't been raised?

  • Brett Bellmore||

    Right now it's a loser argument, Supreme court precedent has rendered the clause essentially moot.

  • Eddy||

    Total bummer. It's nice of Congress to insert yet *another* constitutionally-dubious provision in the statute, so maybe it can still be struck down?

  • WC46||

    The ex post facto argument has only seen one major success that I know of and that's the recent 6th Circuit ruling against Michigan. SCOTUS denied the state's motion to grant certiorari.

    We have to keep firing at different aspects of the law until we finally find the "kill zone" that will put the registry out once and for all.

  • WC46||

    Not only applying consequences without prior notice retroactively, but also retroactively undoing signed and sealed plea bargains that were satisfied long before any registry law went into effect.

  • TGoodchild||

    But what does Justice Kav. Think?

  • Shirley Knott||

    That he'll never drive a Ford again?

  • ThomasD||

    Been saving that one, have you?

  • Ersatz||

    That's because Ford is 'Blase'(y)' to him now

  • MatthewSlyfield||

    That would be difficult as he denies ever having driven a Ford in the first place.

  • MoreFreedom||

    The evidence is that he has never had a Ford, though Ford is saying otherwise even though it can't provide the sales receipt.

  • Dillinger||

    Rufus played that card like Friday

  • loveconstitution1789||

    That he'll never push a Ford again?

  • Red Tony||

    You came late, did something that had already been done better by someone else, and didn't impress anybody.

    Although, to be fair, that is your sex life in a nutshell.

  • loveconstitution1789||

    Look at the troll today.

  • Last of the Shitlords||

    Red Tony, are you saying LC isn't giving you enough loving? And what is this 'nutshell'? Is that a request to get into your pants?

  • FlameCCT||

    Nutshell? Is that code for scrotum as it too contains nuts?

  • jerryg1018||

    Absolutely nothing, he didn't sit in on the oral arguments so he won't rule. It will be an eight judge decision.

  • Vladilyich||

    He missed the original arguments. He isn't eligible to rule on the case and MUST recuse himself.

  • Vladilyich||

    Kavenaugh must recuse because he didn't hear the original pleadings and case. He's not eligible to rule on this.

  • General_Tso||

    What a wise Latina!!1!

  • Fist of Etiquette||

    ...an important case that asks whether Congress violated this fundamental rule by unconstitutionally delegating its lawmaking authority to the executive branch.

    Thus putting a whole bureaucracy of un-elected regulators in peril?

  • ThomasD||

    Let's not get our hopes up.

    Sure would be nice if they applied this principle to the Controlled Substance Act & the DEA; or the EPA (whose existence is based entirely upon an EO 'ratified' by Congress.)

    Add in HHS and CMS to boot.

  • ThomasD||

    They are only fussing about the particular process because this time they do not like the outcome.

  • retiredfire||

    Maybe the SCOTUS should also look at itself, when they grant themselves lawmaking authority.
    And they were never even given it by Congress.
    Article 1, Section 1 doesn't include the glorified lawyers of the DC nazgul.

  • loveconstitution1789||

    So no argument that Sex Offender registration and limitations are 100% unconstitutional?

    If you are not in state custody, like probation or parole, where in the US or any state Constitution does it allow the state to (1) require a citizen to 'register' (2) limit where a citizen can live or work or hang out (3) make it a crime to fail to follow these unconstitutional rules but call it a civil requirement?

  • Brett Bellmore||

    14th amendment: "nor shall any state deprive any person of life, liberty, or property, without due process of law;"

    Basically, once you've been convicted of a crime, there's practically no limit on the extent to which your liberty can be taken away in punishment for it, so long as "due process" is observed. You could even, constitutionally, be enslaved for life, unless the Supreme court decided to finally resurrect the 8th amendment in a non death penalty case.

    The problem here is that these limits on your liberty aren't construed by the courts to be "punishment", and so they don't admit they're violating any legal principle by imposing them after the fact. There's some nasty precedent from the Lautenberg amendment, where people pled guilty to a misdemeanor domestic violence charge, (At a time when all it involved was a fine that was cheaper than contesting the charge.) and decades later the law was changed to strip them of their 2nd amendment rights. And the Court was ok with it!

  • Robert||

    They're understood as public health & safety measures, like quarantine.

  • loveconstitution1789||

    While I agree that the 13th Amendment allows for slavery as a punishment for a crime, the Sex Offender limitations and registries are being used not as punishments but as civil limitations. These people are not under punishment of a sentence anymore. The government even refuses to call them 'punishments'.

    If the state determined every crime had a lifelong sentence, then that would be one thing.

    Furthermore, even if these registries and residence limitations were constitutional lifelong punishments, the government applied sexual registries ex post facto on old sex crimes where the person was never 'sentenced' to lifelong registration or residence limitations.

  • Cyto||

    Yeah, I enjoy the way lawyers use language to convince themselves that up is down. It would be funny if their pontifications on the meaning of the word "is" didn't have such profound impacts on people's lives.

    But sure, having restrictions on where you can live, what you can do for a living, where you can go and having a threat of jail hanging over you over missing monthly appointments with the sheriff's office for the rest of your life is by no means a punishment.

  • Vladilyich||

    When it comes to sex offenders, several states have not instituted laws that you DO NOT have to be released from prison when your sentence is finished. These states have taken that sentencing and lengths of sentence out of the courts and given that power to their individual AGs. This means that if you got a 20-year sentence for rape, it can be changed by the AG into life (especially if you raped the AG's sister). I can see both sides of this (especially for pedophiles), but it seems absolutely Federally Unconstitutional on the surface.

  • WC46||

    Not even child molesters should be subjected to such a ludicrous law! No one and I mean NO ONE should ever be indefinitely detained based on the fear of what they MIGHT DO in the future. That's a slope we as a society should have never stepped anywhere close to!

    If you allow it for one class of sex offenders, that can and will be used to justify it for all.

  • WC46||

    Not even child molesters should be subjected to such a ludicrous law! No one and I mean NO ONE should ever be indefinitely detained based on the fear of what they MIGHT DO in the future. That's a slope we as a society should have never stepped anywhere close to!

    If you allow it for one class of sex offenders, that can and will be used to justify it for all.

  • WC46||

    We can't carve out exceptions for any class of sex offender. If you say it's ok just because it's a child molester you undercut the whole argument against it because basically you're doing the same thing the state has done: saying this group of person's rights are unimportant because we hate what they did. You can never selectively apply constitutional protections. If they are compromised for one group, that's precedent to spread it to all.

  • WC46||

    The government's attitude would be as follows:

    "We have a precedent of being able to confine child molesters beyond their adjudged sentence because they are a threat to society. A rapist of adult women poses the exact same danger to their victims of choice, so why can the law's breadth not be expanded to cover these dangerous predators as well? We did it with child molesters. We should be able to use the same argument to indefinitely confine dangerous rapists beyond their adjudged sentence to confinement."

  • sarcasmic||

    Separation of powers is so quaint. And it prevents things from getting done. Best to have the executive branch write and enforce the laws. That way there won't be any stupid constraints like innocent until proven guilty. Enforcers ton't make mistakes and they never abuse their power.

  • damikesc||

    So, if the Court rules to overturn this --- won't A LOT of laws become unconstitutional as well?

    How much legislation is written with the expectation that bureaucrats will determine what is and what is not legal?

  • sarcasmic||

    I doubt it. The Court tends to make its rulings so narrow that they can't be used as a principle in similar instances.

  • Robert||

    A great deal at both state & fed levels determines "what is not legal" by licensure. That is, they classify broadly actions as illegal unless you have a license, & vest in administrators the power to license.

  • ||

    True, but challenging administrative overreach and insisting the legislature actually shoulder the responsibility for making law has been a consistent element of Gorsuch's jurisprudence and throughout his career. You can expect him to certify cases like this whenever the opportunity presents itself. The court may author a narrow ruling in this particular case, but over a period of 20 years as more and more narrow rulings pile up? That can result in a sea change or a much broader and more dramatic ruling. What surprised me was that Sotomayer seemed fully on board with him and Ginsburg hinted she might be, too.

  • Benitacanova||

    Sotomayer isn't bright enough to see the implications, while Ginsburg is senile.

  • Robert||

    I sure hope so.

  • JFree||

    asks whether Congress violated this fundamental rule by unconstitutionally delegating its lawmaking authority to the executive branch.

    This seems like an issue that is a failure at the federal level to understand the difference between a federal-executive and the state-level-executive. 'Interstate compact' is really a far better model to deal with the ton of issues that are non-enumerated at the federal level in the Constitution but which make it to Congress because they are issues that cross state lines or state authority or that states find they need to cooperate on.

  • Dillinger||

    >>>"That's your argument stated very, very concisely," interjected Justice Ruth Bader Ginsburg

    to garner motherly fuzzy warmies from Gorsuch ... slick play

  • sunset||

    Reason comments section has been so disappointing lately, but these comments here are educational for once. It's nice when the comments actually bring subsitinance rather than just know-it-all bravado and complaining about the author.

    If Reasons web designers have ever considered a comment rating system to allow for constructive comments to float to the top, I wish they'd go ahead and do it.

  • DesigNate||

    Imagine that, they cover what is an actual issue in our legal/legislative system, with a libertarian perspective no less, and nobody is complaining about the author or website (every post has some thread that is substantive and educational, you just have to look for it).

    It's almost like content matters.

  • Last of the Shitlords||

    Wouldn't most of the votes come from, and go to, all of Hihn's socks in that scenario?

  • vek||

    Hihn and his socks haven't been around lately... I hope he didn't die or something... He can be fun to hurl insults at from time to time!

  • MatthewSlyfield||

    "and complaining about the author."

    It's a nice change from of late that a Reason author posted an article that was interesting and informative, rather than a moronic screed against Trump and/or Kavanaugh.

  • Number 2||

    Damon, this case isn't really about executive overreach. It's hard to accuse the executive of overreaching when it is simply using the unlimited power of the Congress handed to it.

    This case is instead about the non-delegation doctrine that prohibits Congress from delegating its lawmaking powers to the executive branch. However, the "smart money" among legal academia these days is that the non-delegation doctrine is all but a dead letter because it allegedly unduly restricts the creation of administrative powers.

    Gorsuch is picking up on this because he is a critic of the modern administrative state. Sotomayor is siding with him because of her concern for the rights of criminal defendants. It remains to be seen whether this type of alliance can overcome those justices who routinely support the prosecution allying with those justices who view the modern administrative state as the human race's greatest creation.

    My prediction is a split decision authored by the chief justice of the narrowest possible ground striking this particular law.

  • DesigNate||

    I'm not nearly as optimistic. I predict Gorsuch, Sotomayor, and RBG in the dissent and everyone else upholding it. Striking it opens up the possibility, however slim, that people will realize that the alphabet soup of executive agencies are indeed unconstitutional.

  • LynchPin1477||

    Would that Trump had cloned and nominated Gorsuch for Kenedy's seat.

  • Jonrichter||

    He could have. His name is Don Willet. He's a federal appellate judge in Texas. If he had been the nominee we might have had the most libertarian court in history.

  • newlife3.0||

    #2, Nate, LP1477 and Jonr:
    Agree and agree.
    I really wish Willet was in Kavanaugh's seat.

    Lots of thoughts, but you guys said it well enough.

  • ThomasD||

    I'm hoping he's 'saving the best for last.'

    Willet will make a fine replacement for RBG.

  • Beldar||

    Let's wait for an opinion before drawing any conclusions about who's lining up where and with whom. Predicting that based on questions from oral argument is folly, plus, in the case of Justice Thomas, impossible.

  • snowhawk||

    If your of high intelligence it doesn't take much time in a municipal Court to see that justice has turned into nothing more than an extortion mechanism. They; from the Judge down to the officer in the street seem to be doing very well off the exorbitant monies taken in. Prosecutors don't care about guilt or innocents just the wins chocked up. Party biased Federal Judges overriding the Rights of the Executive branch. The whole Judicial system is thoroughly out of control.

  • Jonrichter||

    My issue with the law is the lack of continuity or predictability. If the AG can just decide, then suppose the next AG simply decides to change it back? And suppose the one after that decides to change it again? There could be 2 or 3 AGs in a single administration. You can't live with that kind of uncertainty.

    And you can't say that Sessions gets to decide but subsequent AGs cannot change it. They are just as much AG as he is. Why is his tenure given this special privilege. He gets to set the rule forever? I don't think so.

    It certainly seems, from the language of the law, as if Congress intended that those convicted earlier have some sort of registration requirement. But I don't think the court wants to have to decide what rules are appropriate.

    The unconstitutional delegation of power is ultra vires, and therefore null and void. Since no one has the power to decide the rules for those convicted earlier, no new rules can be enacted. All of them, except probably residents of D.C., have to register in their state anyway. If Congress wants there to be federal rules they can amend the law to specify the rules. Or not.

  • Jonrichter||

    My issue with the law is the lack of continuity or predictability. If the AG can just decide, then suppose the next AG simply decides to change it back? And suppose the one after that decides to change it again? There could be 2 or 3 AGs in a single administration. You can't live with that kind of uncertainty.

    And you can't say that Sessions gets to decide but subsequent AGs cannot change it. They are just as much AG as he is. Why is his tenure given this special privilege. He gets to set the rule forever? I don't think so.

    It certainly seems, from the language of the law, as if Congress intended that those convicted earlier have some sort of registration requirement. But I don't think the court wants to have to decide what rules are appropriate.

    The unconstitutional delegation of power is ultra vires, and therefore null and void. Since no one has the power to decide the rules for those convicted earlier, no new rules can be enacted. All of them, except probably residents of D.C., have to register in their state anyway. If Congress wants there to be federal rules they can amend the law to specify the rules. Or not.

  • IndependentTexan||

    "It remains to be seen whether or not a majority of the Supreme Court will see this case in the same light as Gorsuch and Sotomayor seem to see it. If the Court does, it will be a significant win both for criminal justice reformers and for critics of executive overreach."

    How about also for critics of legislative underreach? Isn't that the real problem? Congress failing to step up and do its duty. I'm sure there are a thousand cases of the Congress failing to make law and handing it to the executive branch to "fill in the blanks".

  • sharmota4zeb||

    500,000!? What if every federally registered sex-offender joined the Free State Project and moved to New Hampshire?

  • ranrod||

    Federal judges are nothing more than politically connected lawyers drawing federal paychecks. When we keep these facts in mind, it becomes pretty obvious we shouldn't count on federal courts to limit federal power, and uphold or preserve the Second Amendment.
    James Madison gave us the blueprint. When the federal government commits unwarrantable acts, the Father of the Constitution didn't say "file a lawsuit in federal court." Madison advised a refusal to cooperate with officers of the union. Don't depend on politically connected lawyers to protect your rights.
    tenth amendment center

  • ranrod||

    The US govt. has been violating the constitution for the past century!

  • ranrod||

    Federal judges are nothing more than politically connected lawyers drawing federal paychecks. When we keep these facts in mind, it becomes pretty obvious we shouldn't count on federal courts to limit federal power, and uphold or preserve the Second Amendment.
    James Madison gave us the blueprint. When the federal government commits unwarrantable acts, the Father of the Constitution didn't say "file a lawsuit in federal court." Madison advised a refusal to cooperate with officers of the union. Don't depend on politically connected lawyers to protect your rights.

  • ranrod||

    If you are one that believes the Supreme Court is the final arbiter of what is lawful and constitutional, then you have believed a lie and a myth that Jefferson warned about. The States still retain their rights to this day to defy the federal judiciary, which has become an oligarcy. We just need strong statesmen as governors and legislatures to make that stand!

    In writing to William Jarvis, Jefferson said, "You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy."

    The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped."

  • Enemy of the State||

    The wise latina finds an acorn outside the 4th Amendment. Good job...

  • Mut||

    Funny. The federal crimes requiring registration were not even enacted until 1986.

    But it seems to me that "civil" registration laws targeting a disfavored subclass violate the 13th amendment ban on involuntary servitude. And registration would be worth about 200k per year per individual as the approximate cost to government of obtaining the desired information by alternate means, like hiring extra police to track offenders.

  • Mut||

    Funny. The federal crimes requiring registration were not even enacted until 1986.

    But it seems to me that "civil" registration laws targeting a disfavored subclass violate the 13th amendment ban on involuntary servitude. And registration would be worth about 200k per year per individual as the approximate cost to government of obtaining the desired information by alternate means, like hiring extra police to track offenders.

  • Mut||

    And since the 13th amendment is codified by the United States criminal code, it would seem that our legislators committed a flint against each and every registrant.

    Lock em up!

  • Duelles||

    "Section2: Congress shall have power to enforce this article by appropriate legislation. " apparently it's okay to legislate away the powers given to Congress.. . . Which makes no sense knowing the power mongering that happens in those sacred halls.

  • Mut||

    Restitution is mandatory. 18 USC 1593.

  • Duelles||

    What did,Bush say about some election finance bill? I signed it because I thought it would struck down by the Court ! Arrrgh! "We have seen the enemy and it is us!" Walt Kelly via Pogo.

  • WC46||

    A comment was made by one of the justices that really scares me.

    "If we rule in favor of Gundy, we're going to be busy for a long time" or something similar. In other words, the justice was more worried about the volume of cases the court might have to hear if Gundy is the prevailing party. I don't like the idea of a justice ruling against Gundy simply because doing so would open the court up to the "inconvenience" of having to hear more cases. I'm sorry, but that's their J-O-B!

  • Vicki Henry||

    On top of the unconstitutional 'ex-post-facto' failure add to that the 'Frightening and High' essay by Ira and Tara Ellman where they debunked the 80% recidivism rate used by SCOTUS justices Kennedy and Roberts. The even more egregious thing is the fact that statement, regarding recidivism based on something in Psychology Today, by a guy named Longo was cited in over 100 cases. Hence, a major runaway train. Women Against Registry ~ Fighting the Destruction of Families

  • Leather Sewing Machines||

    They are just as much AG as he is. Why is his tenure given this special privilege. He gets to set the rule forever?

  • Alan@.4||

    I wrote a comment, and sent it. Same does not appear. What happened pray tell.

  • WC46||

    One of the justices made a comment that really concerns me. I can't remember which one said it during the oral arguments of this case, but the comment went to the effect of "If we rule in favor of Gundy, this court is going to be busy for quite some time." I can't believe a justice would even let a matter of the court's "inconvenience" of having to hear more cases that would stem from this ruling seemingly come out as a reason to rule against Gundy!! Since when is the convenience of the court a matter of Constitutional Law???

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