

The Supreme Court May Revive a Legal Theory Last Used to Strike Down New Deal Laws. Oral argument will be on Oct 2, 2018.

The law in question, the Sex Offender Registration and Notification Act (SORNA), required states to expand their sex offender registries or lose millions in federal funding. It also increased punishments for sex offenders, keeping them in the registry for decades, strictly limiting their freedom of movement, and allowing them to be detained for years in “civil commitment” after they finish serving their prison sentences. Oddly, Congress did not clarify whether SORNA must apply to sex offenders convicted before the law’s passage. Instead, it gave the attorney general authority to apply the law retroactively, which he did.

Typically, the Constitution’s Ex Post Facto Clause prohibits the government from applying a new criminal law retroactively to punish an offender who committed his crime before the law’s passage. But in 2003, the Supreme Court rejected an Ex Post Facto challenge to Alaska’s retroactive sex offender registration act, holding that Alaska’s measure was not sufficiently “punitive” to violate the clause.

Thus, Herman Gundy—the defendant in this case, who was convicted of a sex offense before SORNA’s passage—decided to challenge the federal law’s retroactivity under the nondelegation doctrine. Under this theory, Congress infringes upon the constitutional separation of powers when it delegates too much legislative authority to another branch of government. Here, Gundy asserts that Congress delegated an unconstitutional amount of power to the attorney general by allowing him to determine how to apply SORNA retroactively.

I am simultaneously sympathetic to and terrified by this argument. On the one hand, SORNA is a truly terrible law, and I’d like to see it reined in. On the other hand, Gundy may open up a nasty can of worms. The Supreme Court has deployed the non-delegation doctrine to strike down legislation precisely twice—in 1935. Both laws were New Deal regulations: one governing industrial labor laws, the other setting quotas on oil sales. But shortly thereafter, the court changed its attitude toward the New Deal, giving up efforts to police economic reforms.

Since then, the court has largely abandoned the nondelegation theory, allowing Congress to delegate power to another branch so long as that power is limited by some “intelligible principle.” Justice Anthony Kennedy described the doctrine as “somewhat moribund” during oral arguments in 2014.

In recent years, however, several conservative justices have expressed an interest in reviving nondelegation principles. Justice Clarence Thomas wants to bring it back; so does Justice Neil Gorsuch, who praised the doctrine as a safeguard of personal freedom while on the 10th U.S. Circuit Court of Appeals. (He also endorsed it in a 2017 speech to the Federalist Society.) Many progressives fear that, once resuscitated, the theory could be used to strike down all manner of economic regulations.

It’s a reasonable concern. These days, Congress hands off most regulatory authority to a slew of federal agencies situated in the executive branch. A court concerned about nondelegation could strike down a vast range of liberal legislation under the doctrine. Labor laws and environmental protections would be especially vulnerable, since Congress gives agencies a broad mandate to interpret and implement these measures. If the Supreme Court renders that mandate unconstitutional, federal rules that protect workers’ rights, collective bargaining, clean air, and endangered species would fall.

So: Should progressives panic about Gundy? Not quite yet. University of North Carolina criminal law professor Carissa Byrne Hessick points out that the Supreme Court could set different rules for the non-delegation in the criminal context. Gorsuch suggested as much in his 10th Circuit opinion—which, in fact, involved a similar challenge to SORNA’s retroactivity. In an impressive dissent, Gorsuch wrote that Congress must provide something more than an “intelligible principle” when delegating prosecutorial authority given the “individual liberty” at stake. “If the separation of powers means anything,” he asserted, “it must mean that the prosecutor isn’t allowed to define the crimes he gets to enforce.”

I think Gorsuch is probably right, but I worry about this court’s ability, or willingness, to limit the non-delegation doctrine’s revival to criminal cases. Gorsuch has a knack for reintroducing conservative principles in cases where they lead to a liberal outcome, even though the underlying rationale tilts the law rightward. Would this conservative Supreme Court cabin non-delegation to criminal law? Or might it succumb to the temptation to use this principle as a sword to slay economic and environmental regulations, too? Gundy will give us a glimpse of the answer.



5 thoughts on “Supreme Court agreed to hear Gundy v. United States, a constitutional challenge to federal sex offender regulations

  1. No matter what conclusion you come to in this matter… Just remember that no matter how you see former sex offenders; they are still human and should be treated as such and no different

    1. They don’t get treated human. Good people can make poor decisions. Most are rehabilitated completely and pose no risk to society. Research consistently proves that counties are overburdened by this process. Judges have no discretion now to determine who is a threat to society anymore because the tier system is pre-determined by the offense. The system is excessive to people that were once teachers as well. They are automatically placed as a tier 3 because of their position being deemed as an authority figure. Revisions need to be made. Judges should be allowed to evaluate if an offender poses a threat to society. Most people are no longer a risk to society and all people deserve a second chance. This system is very unconstitutional, especially to ones that have no chance of recidivism. There is no registry for convicted murders, drug dealers, or burglars that have spent long stints in prison. How are our communities and children guaranteed to be safe with this process? Their absolutely not safe. These individuals that are convicted felons get a second chance with no registration required. How is this possible? Not all sex offenders deserve to be lumped into one registry.

  2. Hi, my name is James Nance. I was convicted of a kidnapping in 2005. I was 18. I got out in 2010 and then went back to prison for the last 8 years. I got 5 to 15 years for stealing a car with the baby in the back. I never touched the kid. I should not even be on the public registry. I’ve been back to prison all those times for not complying with my GPS tether or not registering. I just got out 2 weeks ago again I did 10 months and 10 days for my GPS tether dying and not registering same for the last 5 times, so I’m leaving a comment. I’m from Michigan and I do feel like there are some people that don’t belong on the public registry. Can someone give me some advice and some legal advise. I have no money but I have read about the Snyder case and I think I should be included in that list with those people. I just don’t know how to get started. Thanks for your time and good luck.

  3. James,
    There are lawyers advertising on our website. Maybe call one of them to get a referral to a good lawyer in your state.

    Webmaster edit:
    referring to this document
    It lists 3 attorneys that represented the Doe’s before the United States Supreme Court, against Snyder, as follows:

    Miriam J. Aukerman
    Counsel of Record
    1514 Wealthy St., Ste. 242
    Grand Rapids, MI 49506
    (616) 301-0930

    Michael J. Steinberg
    2966 Woodward Ave.
    Detroit, MI 48201

    Paul D. Reingold
    801 Monroe Street
    Ann Arbor, MI

  4. I suppose the reason we have so many restrictions is so people won’t see we are decent people. I live in fear every day. I was tricked by cops and prosecutors. I know I’ll never have the money to clear my name. And I can’t heal as I myself am also a victim of sexual assault. I am also skitzo effective which lead to my viewing of children on the internet. I confessed told I need it in my possession for an arrest. With no money, family, friends I was arrested. I had nothing in my possession. They even said they could not prove it, just believed. I was found n.g.r.i. but told plead guilty or I would never get out. And if I did and the charges were dropped my crime was so severe that I would still have to register and be on probation. I’m being held hostage by the state of Missouri. My wife left because they told my family that I was having sex with children. They turned everyone against me. So I would hope this list can be destroyed or i’ll never have a chance at life.

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