Caseflicks

Supreme Court of the United States • 2019

Gundy v. United States

588 U.S. 128 | 139 S. Ct. 2116 | 204 L. Ed. 2d 522 | 2019 U.S. LEXIS 4183

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Takeaway

In short, a five-Justice majority upheld SORNA because the controlling judgment treated the Attorney General’s authority as limited implementation discretion, while the dissent saw the statute as an impermissible transfer of lawmaking power over pre-Act offenders.

Background

Congress enacted the Sex Offender Registration and Notification Act (SORNA) in 2006 to create a comprehensive national sex-offender registration system. SORNA generally requires sex offenders to register before leaving prison, but §20913(d) gives the Attorney General authority to “specify the applicability” of SORNA’s requirements to people convicted before SORNA’s enactment—known as pre-Act offenders—and to prescribe registration rules for offenders unable to comply with the ordinary initial-registration rule.

Herman Gundy pleaded guilty in Maryland in 2005 to sexually assaulting a minor. After his release from prison, he moved to New York but did not register as a sex offender. He was convicted under SORNA’s criminal enforcement provision for knowingly failing to register after interstate travel.

Gundy argued that §20913(d) unconstitutionally delegated Congress’s legislative power to the Attorney General. The District Court rejected that claim, and the Second Circuit affirmed. The Supreme Court affirmed as well: four Justices joined Justice Kagan’s opinion, and Justice Alito supplied the fifth vote for the judgment while writing separately.

Issues

Issue #1

Whether §20913(d) authorizes the Attorney General to decide whether SORNA applies at all to pre-Act offenders, or instead only permits the Attorney General to manage transitional implementation problems.

Holding

The plurality held that §20913(d) requires the Attorney General to apply SORNA to all pre-Act offenders as soon as feasible; it gives discretion only over transitional and administrative implementation issues.

Reasoning

The plurality treated statutory interpretation as the essential first step in a nondelegation case. A court must determine what authority Congress actually gave before deciding whether Congress gave away too much legislative power. The plurality rejected Gundy’s reading of the phrase “specify the applicability” in isolation and instead read it in the context of the whole statute.

SORNA’s stated purpose is to establish a “comprehensive national system” for registration of sex offenders. Its definition of “sex offender” includes a person who “was convicted” of a qualifying offense, signaling that Congress meant to include persons convicted before SORNA’s enactment. Allowing the Attorney General to exempt all pre-Act offenders permanently would conflict with both the Act’s comprehensive purpose and its backward-looking definition.

The title and text of §20913(d) focus on offenders unable to comply with the usual initial-registration requirement, which assumes that an offender is still in prison. That focus showed that Congress gave the Attorney General a limited transition-period task: solve practical problems involved in bringing already-released offenders into the new registration system.

The plurality also relied on Reynolds v. United States, which had interpreted SORNA to make pre-Act offenders subject to registration once the Attorney General acted. Reynolds, in the plurality’s view, rested on the premise that Congress intended eventual coverage of all pre-Act offenders and gave the Attorney General authority only to address the feasibility of implementing that coverage. The Attorney General’s prompt rule applying SORNA to all pre-Act offenders reinforced that limited understanding.

Issue #2

Whether §20913(d), as construed to require registration of pre-Act offenders as soon as feasible, violates the constitutional nondelegation doctrine.

Holding

No. Under the Court’s established intelligible-principle doctrine, the delegation is constitutional.

Reasoning

Article I vests legislative power in Congress, and Congress may not transfer powers that are strictly and exclusively legislative. But longstanding precedent permits Congress to give executive officials substantial discretion to implement statutes so long as Congress supplies an intelligible principle—or, equivalently, identifies the policy to be pursued and the boundaries of the delegated authority.

Congress supplied both policy and limits here. It directed the Attorney General to bring pre-Act offenders into SORNA’s registration scheme, limited the relevant considerations to administrative and transitional feasibility, and indicated that any delay could be only temporary. The Attorney General therefore could not make an independent policy choice to abandon registration of pre-Act offenders.

That direction was far more specific than delegations the Court had repeatedly upheld, including authority to regulate in the “public interest,” set “just and reasonable” rates, or establish air-quality standards necessary to protect public health. Because implementation often requires executive judgments about feasibility, the plurality concluded that SORNA’s comparatively narrow delegation easily satisfied the intelligible-principle standard.

Concurrences

Justice Alito

Reasoning

Justice Alito agreed that the judgment should be affirmed because, under the Court’s nondelegation precedents of the preceding eighty-four years, §20913(d) had an adequately discernible standard. He did not join Justice Kagan’s statutory or constitutional analysis.

He stated that he would support reconsidering the Court’s modern approach to nondelegation in an appropriate case if a majority of the Court were willing to do so. But because no such majority existed in Gundy, he thought it would be anomalous to invalidate this particular provision while leaving the Court’s much broader delegation precedents intact.

Dissents

Justice Gorsuch

Reasoning

Justice Gorsuch, joined by Chief Justice Roberts and Justice Thomas, read §20913(d) as giving the Attorney General sweeping discretion over pre-Act offenders. In his view, the Attorney General could require all, some, or none of those offenders to register; impose all or only some SORNA requirements; and alter those choices across administrations. Because a violation carried criminal penalties, this discretion effectively allowed the Attorney General to write rules governing the liberty of roughly half a million people.

The dissent argued that the Constitution’s Vesting Clause reserves legislative power—the authority to prescribe general rules regulating private conduct—to Congress. Congress may allow executive actors to fill in details, find facts that trigger rules Congress has enacted, or exercise powers independently vested in the Executive. But Congress may not hand the Executive the fundamental policy decision whether and how to regulate an entire class of people.

On that understanding, §20913(d) was not a permissible detail-filling provision or a fact-finding delegation. Congress itself made no operative policy decision about which pre-Act offenders must register or what requirements they must obey. Nor did it identify factual criteria that would guide the Attorney General’s choices. The statute instead left the principal legislative questions unanswered.

Justice Gorsuch criticized the plurality for deriving a requirement of registration “as soon as feasible” from SORNA’s broad purpose, definition of sex offender, legislative history, and Reynolds. The actual text of §20913(d), he argued, contains no feasibility standard. A general aspiration to create a comprehensive system cannot override the specific provision giving the Attorney General authority to specify SORNA’s applicability to pre-Act offenders.

The dissent maintained that the Court’s permissive intelligible-principle doctrine has drifted from the Constitution’s original separation-of-powers design. It proposed asking whether Congress made the policy choices, leaving only details or factual determinations to the Executive. Under that approach, giving the nation’s chief prosecutor authority to determine the scope of criminally enforceable registration duties was an unconstitutional delegation.