Today the Supreme Court granted certiorari in Gundy v. United States, No. 17-6086, to decide whether the Sex Offender Registration and Notification Act (SORNA) violates the nondelegation doctrine by delegating authority to the Attorney General to issue regulations under 42 U.S.C. § 16913(d). The grant is particularly significant because, as Sentencing Resource Counsel Ada Phleger observed, there is no clear circuit split on this issue. The petition in Gundy is available here. (The Court granted cert on Issue # 4, at pages 17-19 of the petition.)
SORNA delegates authority to the Attorney General to decide whether the Act’s registration requirements apply to sex offenders who were convicted before SORNA was enacted. This delegation, Mr. Gundy argues, unconstitutionally grants the Attorney General “unfettered discretion to determine who is subject to criminal legislation without an ‘intelligible principle.'” Cert. Petition at 19. Notably, Justice Gorsuch raised a similar concern in a concurring opinion when he was on the Tenth Circuit. See United States v. Hinckley, 550 F.3d 926, 948 (10th Cir. 2008) (Gorsuch, J., concurring). Practitioners should take care to preserve the issue!
Big congratulations to the FDNY’s Sarah Baumgartel, who represents Mr. Gundy and filed the cert. petition.