Yesterday, in Gundy v. United States, Sup. Ct. No. 17-6086, 2019 WL 2527473 (June 20, 2019), a case out of the Second Circuit, a plurality of the Supreme Court held that 34 U.S.C. § 20913(d) — which authorizes the U.S. Attorney General “to specify the applicability” of the registration requirements of the Sex Offender Registration and Notification Act (“SORNA”) to people convicted before the statute’s enactment (in 2006) — is not an unconstitutional delegation of legislative authority.
The lead opinion was written by Justice Kagan, joined by Justices Breyer, Ginsburg, and Sotomayor. See Opinion (“Op.”) at 1-18. Justice Alito filed a short, one-page, opinion “concurring in the judgment.” Concurrence, Alito, J., at 1. And Justice Gorsuch filed a dissenting opinion that was joined by Chief Justice Roberts and Justice Thomas. Dissent, Gorsuch, J., at 1-33. Justice Kavanaugh did not participate in the decision since he was not on the Court when the case was argued last October.
A. The plurality decision
- The four-Justice opinion
Article I of the United States Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” Art. I, § 1. “This text permits no delegation of those powers.” Whitman v. American Trucking Ass’ns, 531 U.S. 457, 472 (2001). But the Supreme Court has held that “the nondelegation doctrine … do[es] not prevent Congress from obtaining the assistance of its coordinate Branches[,]” Mistretta v. United States, 488 U.S. 361, 372 (1989), and Congress may confer discretion on the Executive to implement and enforce the laws so long as it supplies an “intelligible principle” to which the body authorized to exercise the delegated authority “is directed to conform.” Id. (quoting J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928)).
In 2006, Congress enacted SORNA, which provides that the Attorney General “shall have the authority to specify the applicability” of SORNA’s registration requirements to people “convicted before” SORNA’s enactment. 34 U.S.C. § 20913(d).
Petitioner Gundy argued “that Congress unconstitutionally delegated legislative power when it authorized the Attorney General to ‘specify the applicability’ of SORNA’s registration requirements to pre-Act offenders.” Op. at 4. He argued that SORNA “grants the Attorney General plenary power to determine SORNA’s applicability to pre-Act offenders—to require them to register, or not, as she sees fit, and to change her policy for any reason and at any time.” Id. at 6.
The plurality stated: “If that were so, we would face a nondelegation question.” Op. at 6. It held, however, that the phrase “‘[s]pecify the applicability’” “means ‘specify how to apply SORNA’ to pre-Act offenders if transitional difficulties require some delay[,]” and does not mean “specify whether to apply SORNA” to pre-Act offenders. Id. at 14 (emphases in original). The plurality reasoned that the premise of the Court’s decision in Reynolds v. United States, 565 U.S. 432 (2012), was that “Congress meant for SORNA’s registration requirements to apply to pre-Act offenders[,]” and that SORNA permitted the Attorney General “only to address (as appropriate) the ‘practical problems’ involving pre-Act offenders before requiring them to register.” Op. 6, 9 (quoting Reynolds, id. at 440); see Op. at 6-10. The plurality indicated it was taking a “holistic” approach to statutory construction, saying that “beyond context and structure, the Court often looks to ‘history [and] purpose’ to divine the meaning of language.” Op. at 10, 11 (alteration in original; citation and internal quotation marks omitted); see id. at 10-14 (discussing SORNA’s purpose and legislative history).
The plurality concluded that SORNA did not allow the Attorney General to excuse pre-Act offenders from registering, “except for reasons of ‘feasibility.’” Op. 15. It stated that Congress thus set out an “intelligible principle” to guide the delegee Attorney General’s exercise of discretion under SORNA, defining it as “Congress’s policy that the Attorney General require pre-Act offenders to register as soon as feasible.” Op. at 16; see id. at 15-17 .
- The concurrence
Justice Alito concurred “in the judgment,” supplying the fifth vote for the decision. He noted that the Constitution, in Article I, § 1, conferred certain legislative powers on the Congress “and does not permit Congress to delegate them to another branch of the Government.” Concurrence, Alito, J. at 1. But “[n]evertheless, since 1935, the Court has uniformly rejected nondelegation arguments and has upheld provisions that authorized agencies to adopt important rules pursuant to extraordinarily capacious standards.” Concurrence, Alito, J., at 1 (citation omitted).
Justice Alito added that “[i]f a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.” Id. He voted to affirm because he could not “say that the statute lacks a discernable standard that is adequate under the approach this Court has taken for many years.” Id.
B. The three-Justice dissenting opinion
Justice Gorsuch filed a lengthy dissent joined by Chief Justice Roberts and Justice Thomas. He stated that “a plurality of an eight-member Court endorses this extraconstitutional arrangement” in which Congress has endowed “the nation’s chief prosecutor with the power to write his own criminal code” governing the lives of roughly 500,000 pre-Act offenders. See Dissent, Gorsuch, J., at 1.
The dissent explained that when SORNA was passed, the treatment of pre-Act offenders was a “controversial issue with major policy significance and practical ramifications for states” because, among other things, applying SORNA immediately to this group threatened to impose unpopular and costly burdens on States and localities by forcing them to adopt or overhaul their own sex offender registration schemes. Id. at 2-3 (citations and internal quotation marks omitted). “So Congress simply passed the problem to the Attorney General.” Id.
The dissent noted that the Government in Reynolds had acknowledged that SORNA — as Gundy argued — “‘does not require the Attorney General’ to impose registration requirements on pre-Act offenders ‘within a certain time frame or by a date certain; it does not require him to act at all.’ If the Attorney General does choose to act, he can require all pre-Act offenders to register, or he can ‘require some but not all to register.’ For those he requires to register, the Attorney General may impose ‘some but not all of [SORNA’s] registration requirements’ …. And he is free to change his mind on any of these matters ‘at any given time or over the course of different [political] administrations.’” Id. at 3 & footnotes 8-11 (quoting Brief for the United States in Reynolds).
“But now, faced with a constitutional challenge, the government speaks out of the other side of its mouth and invites us to reimagine SORNA as compelling the Attorney General to register pre-Act offenders ‘to the maximum extent feasible.’ And, as thus reinvented, the government insists, the statute supplies a clear statement of legislative policy, with only details for the Attorney General to clean up.” Id. at 27 (emphasis in original). However, “the feasibility standard is a figment of the government’s (very recent) imagination.” Id. at 28.
And there is not adequate support for the plurality’s conclusion that the Act provides such a feasibility standard. Id. at 28-33; see also id. at 32 (“[L]egislative history is not the law. Still less can committee reports or statements by individual legislators be used ‘to muddy clear statutory language’ like that before us.” And “[n]one of these snippets mentions a ‘feasibility’ standard.”). And in reality, “different Attorneys General have exercised their discretion in different ways.” Id. at 4 (relating four different policies of four different Attorneys General); id. at 25 (“the executive branch found itself rapidly adopting different positions across different administrations”).
The dissent also discusses the origin of the “intelligible principle” doctrine and provides a critique. Id. at 13-18; id. at 17 (“This mutated version of the ‘intelligible principle’ remark has no basis in the original meaning of the Constitution, in history, or even in the decision from which it was plucked.”). But the dissent states that “enforcing the Constitution’s demands” would not “spell doom for what some call the ‘administrative state.’” Id. at 26. “The separation of powers does not prohibit any particular policy outcome, let alone dictate any conclusion about the proper size and scope of government.” Id. And it describes a number of actions Congress may authorize executive branch officials to perform under proper guidance. Id. at 26-27.
Overall, the dissent warns that Congress’s delegation of legislative authority, as it did here, imperils individual freedom. Id. at 1, 26, 33. It explained: “It would be easy enough to let this case go. After all, sex offenders are one of the most disfavored groups in our society.” Op. at 26. But “[t]o allow the nation’s chief law enforcement officer to write the criminal laws he is charged with enforcing—to ‘unit[e]’ the ‘legislative and executive powers … in the same person’—would be to mark the end of any meaningful enforcement of our separation of powers and invite the tyranny of the majority that follows when lawmaking and law enforcement responsibilities are united in the same hands.” Id. (footnote omitted).
Take-away
Despite Mr. Gundy’s loss, the nondelegation argument lives. As the dissent states, the decision of the 5-member Gundy plurality “resolves nothing[,]” since Justice Alito did not join “either the plurality’s constitutional or statutory analysis[.]” See Dissent, Gorsuch, J., at 1. However, there appear to be four justices willing to reconsider the “intelligible principle” doctrine. And Justice Kavanaugh has not yet had a chance to register his position on the issue. But as of now, the three dissenting Justices expressly question the viability of the “intelligible principle” doctrine. And the concurring Justice disagrees with the approach the Court has taken to nondelegation arguments, since 1934, and if the Court would “reconsider” that approach, he “would support that effort.” So, for example, anyone with a client facing a criminal sanction for violating a regulation issued by a federal agency should consider raising the nondelegation argument.
Gundy was very ably briefed and argued in the Supreme Court by Sarah Baumgartel of the Federal Defenders of New York.
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