United States v.

Gundy | LII / Legal Information Institute 16/02/2019, 9)57 AM

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United States v. Gundy

criminal law
NON-DELEGATION DOCTRINE
SORNA
separation of powers
INDIVIDUAL LIBERTY

Issues
Did Congress violate the non-delegation doctrine when it passed the federal Sex Offender Registration and Notification Act, giving the attorney general
authority to issue regulations under 42 U.S.C. § 16913?
Oral argument: October 2, 2018
Court below: United States Court of Appeals for the Second Circuit
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In this case, the Supreme Court will decide whether Congress, in passing the Sex Offender Registration Notification Act (“SORNA”), violated the non-
delegation doctrine in allowing the Attorney General to define and implement how the Act applies to sex offenders who committed offenses prior to
SORNA’s implementation. The United States argues that Congress’s grant of power to the Executive is constitutional if Congress provides a guiding
principle explaining SORNA’s general policy and guidelines for its implementation. The United States contends that Congress did provide these
requirements when it explained that SORNA requires sex offenders to register “to the maximum extent feasible.” Gundy, however, argues that Congress
gave the Executive no direction on how to apply SORNA to sex offenders who committed acts prior to the implementation of SORNA. It contends that
Congress granted the Executive unconstrained power to define when and how SORNA applies to these “pre-SORNA” sex offenders. A decision for the
United States could promote public safety and ensure a more comprehensive national sex offender registration system. A decision for Gundy could
ensure Congress does not overdelegate its authority nor threaten individual liberties.

Questions as Framed for the Court by the Parties

Whether the federal Sex Offender Registration and Notification Act’s delegation of authority to the attorney general to issue regulations under 42 U.S.C.
§ 16913 violates the non-delegation doctrine.

Facts
In 2006, Congress passed the Sex Offender Registration and Notification Act (“SORNA”), which is codified at 18 U.S.C. § 2250 (“Section 2250”).
Congress intended this act to serve as a comprehensive national database, tracking the address of sex offenders released from prison. Gundy v. United
States at 4–6. Section 2250(a) of SORNA makes it a federal crime for a sex offender to not register with SORNA when the law requires the offender to
register, the offender travels between states, and the offender then knowingly fails to register in the new state. Id.

Petitioner Herman Gundy was convicted of a sex offense and sentenced to federal prison in Pennsylvania prior to the implementation of SORNA. Id. at
2. Near the end of his sentence, the Department of Justice (“DOJ”) arranged for Gundy to be released into community-based custody in New York State.
Id. Specifically, the DOJ arranged for Gundy to live at a halfway house, Bronx Residential Re-Entry Center. Id. After serving his sentence, Gundy traveled,
unescorted, on a commercial bus to the halfway house in New York state. Id. After arriving there, Gundy was officially released from federal custody. Id.
While living at the halfway house, Gundy did not register as a sex offender in New York state. Id.

Gundy was later arrested in New York state for violating Section 2250(a) of SORNA. Id. The United States contends that when Gundy traveled from
Pennsylvania to New York he was required to register as a sex offender in New York. Id. Gundy contested this interpretation and asked the Court to
dismiss the charge. Id. at 2–3. He argued that he was still in custody when traveling to New York state, making the movement involuntary. Id. at 3.
Because the interstate travel was involuntary, Gundy contends that Section 2250(a) of SORNA does not apply to him. Id. The trial court, however, ruled
against Gundy and held a trial. Id. The court found Gundy guilty of violating Section 2250(a) regardless of whether he voluntarily moved to New York. Id.
The court subsequently sentenced Gundy to time served and five-years supervised release. Id.

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Gundy appealed his conviction to the United States Court of Appeals for the Second Circuit. Id. The Court of Appeals ruled against Gundy, upholding
the lower court’s decision. Id. It found that Gundy clearly satisfied two of SORNA’s requirements: that he was required to register with SORNA and that
he knowingly failed to do so. Id. The Second Circuit then addressed whether SORNA requires interstate travel to be voluntary. Id. In ruling against
Gundy, the Second Circuit stated that it would not create an exception for voluntary travel. Id. The Second Circuit further concluded that even though
Gundy was in custody when crossing state lines, it would still require registration under SORNA. Id. Gundy then appealed to the Supreme Court. Id.

Analysis
NON-DELEGATION DOCTRINE
Petitioner Gundy argues that SORNA’s grant of discretion to the Attorney General to decide issues concerning the law’s retroactive application to pre-Act
offenders is an impermissible delegation of a legislative power to the Executive Branch. Brief for Petitioner at 23. He contends that SORNA allows the
Attorney General to perform a lawmaking function reserved for the Legislative Branch by Article I of the U.S. Constitution because it enables the Attorney
General to create binding laws of behavioral conduct subject to criminal sanctions. Id. Gundy asserts that allowing the Attorney General to set rules for
pre-Act offender registration bypasses the process of democratic accountability that is crucial in the criminal context, where personal liberties are at
issue. Id. at 18–19. Gundy maintains that this delegation allows the Attorney General to define crimes for pre-Act offenders, a practice which should be
held unconstitutional given that the Court has not permitted Congress to delegate the authority to define crimes to a different branch of government. Id.
at 21. In light of the seriousness of sex offenses and the severity of consequences for conviction and registration, Gundy argues that the Court should
apply the non-delegation doctrine stringently to preserve separation of powers. Id. at 18.

The United States responds that SORNA’s delegation of power to the Attorney General is necessary for full implementation of the statute as intended by
Congress. Brief for Respondent at 14. Contending that SORNA’s grant of rulemaking power to the Executive Branch is consistent with past statutory
delegations of power that the Court found permissible, the United States cites examples of executive authority to make rules setting tariff rates,
regulating broadcast licenses, and fixing commodity prices, inter alia. Id. at 19. The United States argues that because executive agencies can already
grant exemptions from other types of registration required by Congress, SORNA’s requirement that the Attorney General specify rules for the registration
of pre-Act offenders does not significantly expand Executive authority. Id. at 30. The United States further maintains that SORNA’s grant of authority to
the Attorney General is supported by common sense and the context of sex offender registration. Id. at 15. It argues that holistic rejection of delegation
is flawed, and that common-sense delegation is necessary to increase Congress’s flexibility in crafting legislative solutions. Otherwise, the United States
asserts, Congress will be constrained to policy proposals that minimize delegation, decreasing the overall quality of policy solutions available. Id. Here,
the United States contends, SORNA’s delegation of power is an effective tool to solve logistical problems with registering pre-Act offenders. Id. at 26.
Since the Attorney General has better practical knowledge of registration standards as well as federal and state criminal law, the United States argues,
SORNA’s grant of authority to the Attorney General is the best way to guarantee compliance. Id. at 27.

THE “INTELLIGIBLE PRINCIPLE” STANDARD

Gundy maintains that even under a view of the non-delegation doctrine that permits Congress to delegate some legislative functions to other branches
of government, SORNA’s grant of power to the Attorney General is still impermissible because it does not provide an “intelligible principle” to guide the
Attorney General in making decisions. Brief for Petitioner at 41. He argues that clear guidance is especially important for delegation of SORNA’s
rulemaking powers to ensure that the Attorney General’s actions conform with Congress’s will, not personal preference. Id. at 44. Gundy further reasons
that SORNA does not articulate an intelligible principle to guide the Attorney General in making rules and regulations concerning the registration of pre-
Act offenders. Id. at 41. Gundy asserts that the statute’s text is devoid of criteria or limitations for this rulemaking, leaving the Attorney General free to
arbitrarily change policy. Id. at 42. As evidence for this claim, Gundy presents multiple changes to pre-Act registration requirements by Attorneys
General since the statute was enacted in 2006. Id. at 8–10. Gundy also maintains that SORNA’s grant of power to the Attorney General does not satisfy
the intelligible principle standard because it is not tied to the specific authority delegated. Id. at 46. While Congress declared its purposes in enacting
SORNA to protect the public and create a national registration system, Gundy contends that these goals are not intelligible principles because they do
not explain the policy rationales behind the specific grant of power to the Attorney General. Id. at 42–43. Gundy argues that since the goals of protecting
the public and creating a national registration system are broad, general goals not unique to SORNA itself, they cannot meaningfully guide the Attorney
General in adhering to Congressional intent. Id. at 48.

The United States responds that SORNA provides sufficient intelligible principles to guide the Attorney General in making rules pertaining to pre-Act
offender registration. Brief for Respondent at 16. The United States argues that in enacting SORNA, Congress made its intent clear to require pre-Act
offenders to register to the extent logistically possible. Id. at 24. The United States maintains that this directive, combined with SORNA’s textually stated
purposes of crime reduction and compiling a national registration database, provides a workable intelligible principle that the Attorney General can use
to guide decisions about pre-Act offender registration. Id. at 15. The United States asserts that statutes such as SORNA should be read as a whole, and
therefore the entire statute and context surrounding its passage provide sufficient guidance and directives for the Attorney General. Id. at 31.
Furthermore, the United States contends that the limited nature of the Attorney General’s rulemaking power under SORNA minimizes the danger of
misinterpretation or arbitrariness, allowing a relaxed standard of intelligible principle to suffice. Id. at 28. Not only is this power restricted to the narrow,
defined group of pre-Act offenders, the United States argues, but other parts of SORNA such as registration guidelines and penalties serve to
functionally limit the Attorney General’s authority. Id. at 22–23.

STATE SOVEREIGNTY IN CRIMINAL LAW

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Gundy argues that SORNA’s grant of rulemaking authority to the Attorney General intrudes on the traditional authority of states to regulate private
conduct occurring in their territories. Brief for Petitioner at 40. This concept of state sovereignty is especially important in criminal law, Gundy
contends, because of the individual liberty interests at stake. Id. at 19. Gundy argues that criminalizing private behavior and making rules pertaining to
crimes must remain a primarily legislative function due to the system of democratic accountability constraining legislators. Id. at 20. Gundy warns that
SORNA’s authorization of the Attorney General to set procedures for pre-Act offender registration is especially hazardous to the balance of federalism
because it subjects a matter of purely in-state private conduct to the arbitrary will of one decision-maker in the Executive Branch. Id. at 30. Gundy
argues that state sovereignty concerns at issue in regulating sex offender registration underscore the need for clear guidelines for delegated power,
which SORNA lacks. Id. at 40–41.

The United States responds that prior examples of Congress delegating criminal law rulemaking to the Executive Branch demonstrate that SORNA’s
delegation of power to the Attorney General does not upset the balance of federalism. Brief for Respondent at 20. For instance, the United States
contends, Congress has already delegated power to the Executive Branch to create sentencing guidelines for federal crimes, designate controlled
substances, and identify aggravating factors in certain death penalty cases. Id. Additionally, the United States argues that since SORNA already creates
a federal requirement for offenders to register in the national database, permitting the Attorney General to create rules for pre-Act offender registration
does not create a unique intrusion on state sovereignty. Id. at 42. The United States also maintains that the Attorney General’s regulation of an area
traditionally managed by states is particularly necessary given that creating a uniform system of registration is a central purpose behind SORNA. Id. at
27.

Discussion
INDIVIDUAL LIBERTY AND RETROACTIVITY
The American Civil Liberties Union (“ACLU”), in support of Gundy, argues that the Executive Branch should not implement SORNA because it would
harm individual liberty by applying the Act retroactively to sex offenders who have already served their sentences and have been released from prison.
Brief of Amicus Curiae of The American Civil Liberties Union (“ACLU”), in Support of Petitioner at 13. The ACLU cautions that this retroactive
application would affect a significant amount of people as there are approximately half a million released sex offenders potentially covered under
SORNA. Id. at 20. The ACLU maintains that Congress has provided no guidance on how and when to apply SORNA to these past offenders, giving
these offenders no notice of when they might be required to register under the Act. Id. at 16. The ACLU also asserts that this lack of notice is particularly
concerning because it occurs in the criminal context. Id. the ACLU explains that by requiring offenders to register, the Act imposes a criminal
punishment on them, taking away some of their liberty and reflecting society’s “moral condemnation.” Id. at 14–15. Therefore, the ACLU argues that
retroactively applying this criminal statute magnifies personal liberty concerns because released offenders have already completed their punishment and
have not reoffended. Id. at 20–21. Moreover, the ACLU contends that having the Attorney General, the prosecutorial arm of the Executive Branch, define
when and how SORNA applies to these released offenders is likely to only result in vague guidelines that provide no notice of when they are violating
SORNA, thereby implicating individual liberty concerns. Id. at 24.

The United States counters that SORNA does not create individual liberty concerns because Congress sufficiently guided the Executive in how to apply
SORNA. Brief for Respondent, United States Government at 38. The United States argues that Congress intended the Act to require registration to
the maximum extent possible. Id. The United States asserts that this guidance is sufficiently clear and avoids any practical problems regarding
registration. Id. at 39. Moreover, the United States explains that the Act affects only a relatively small group of people – namely pre-SORNA offenders. Id.
at 38. The United States also contends that personal liberty concerns are not at issue because SORNA does not apply retroactively to past offenders. Id.
at 39. For instance, the United States notes that the Act does not require released offenders to have already registered. Id. Instead, the United States
argues that the Act applies only prospectively as SORNA imposes criminal penalties only if a released offender does not register going forward. Id. at 40.
The United States asserts that SORNA is similar to other statutes in that it creates a prospective obligation to disclose facts or information based on past
conduct. Id. Therefore, the United States contends that SORNA’s implementation will not affect personal liberty because Congress has given the
Executive Branch sufficient guidance on how to apply the Act prospectively. Id.

PUBLIC SAFETY
Scholars Whose Work Includes Sex Offense Studies (“Scholars”), in support of Gundy, argues that limiting the Executive’s authority to implement
SORNA will not harm the public. Brief of Amicus Curiae Scholars Whose Work Includes Sex Offense Studies (“Scholars”), in Support of Petitioner
at 29. If the Court sides with Gundy, the Scholars contend that only a few released sex offenders will not be required to register under SORNA. Id. at 26.
For example, the Scholars explain that released offenders who meet a public policy exception and have not committed another offense since their
release will not be required to register. Id. The Scholars argue that this group is relatively small and is an inherently low-risk group that will not endanger
the public. Id. Moreover, the Scholars assert that the National Registry, the current national tracking system that links multiple state registries, will still
provide Congress a method of tracking sex offenders to keep the public safe. Id. at 28. Ultimately, the Scholars contend that reversing Congress’ grant
of power to the Executive will not allow dangerous sex offenders to evade registration requirements. Id. at 29.

The United States counters that Congress implemented SORNA to protect the public from released sex offenders. Brief for Respondent, United States
Government at 17. The United States cautions that sex offenders are a “serious threat” to the country and Congress therefore has used national sex
offender registries to inform the public and keep them safe. Id. The United States notes, however, that Congress became concerned with loopholes and
deficiencies in the old registration systems leaving approximately 100,000 offenders unaccounted. Id. at 49. The United States explains that SORNA was
created to be a more uniform and effective system at tracking sex offenders, making it more comprehensive than prior systems. Id. at 52. Therefore, the
United States asserts that SORNA will better protect law-abiding citizens and prevent further deficiencies in tracking released sex-offenders. Id. at 48–
49.

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Written by
Kathryn Adamson
Sarah Evans

Edited by
Fredrick Titcomb Jr.

Additional Resources
Mark Joseph Stern: https://slate.com/news-and-politics/2018/03/supreme-court-may-revive-non-delegation-doctrine-in-gundy-v-united-states.html, Slate (March 5,
2018).
Ilya Shapiro, Trevor Burrus, and Reilly Stephens: https://www.cato.org/publications/legal-briefs/gundy-v-united-states, Cato Institute (May 24, 2018).

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