Later that year, he was arrested and indicted for violating SORNA for failure to register as a sex offender upon traveling to New York from Pennsylvania. Gundy argues that “an originalist interpretation of the Constitution” flatly forbids such a delegation of legislative power.
In 2012, while he remained in federal custody, the Bureau of Prisons allowed Gundy to travel to a community re-entry facility in New York. Gundy’s petition raised four questions, but the Supreme Court chose to take up just one of them, a question on which the circuits were not split and which the justices had repeatedly declined to hear in the past: “Whether SORNA’s delegation of authority to the Attorney General to issue regulations under [34 U. That principle, Gundy emphasizes, holds special importance and force in the criminal law context.
Upon leaving that facility two months later, Gundy remained in New York. Gundy contends that the power wielded by the attorney general here is an immense one and “quintessentially legislative” — the power to “prescribe rules, backed by criminal sanctions, governing the conduct of roughly half a million people” — and such a delegation cannot be constitutional.
Gundy contends that other SORNA provisions that speak to the need for a “comprehensive national system” of registration or the goal of “protect[ing] the public” neither supply an intelligible principle nor dictate the answers to key policy judgments and value choices that Congress is required to make.
Gundy adds that SORNA’s delegation to the executive offends retroactivity doctrine and federalism concerns to boot.
Nor, in the government’s view, does SORNA’s delegation offend the principle that only Congress may define crimes: Although a law that authorized the executive “to create new federal crimes out of whole cloth” would “raise substantial constitutional questions,” in SORNA “Congress itself established the new crime of failing to register” and created a “civil registration requirement,” and although the attorney general’s rules “implement that civil registration regime[,] they do not define any criminal offense.” The government closes its brief by stressing that the court should not depart from long-established precedents that allow Congress to give the executive the discretion to make determinations that affect private-party conduct, “so long as Congress is clear about its general policy.” How the Supreme Court chooses to decide this case could have potentially sweeping implications on several scores.
The government notes that since SORNA was enacted, 4,000 sex offenders have been convicted of “federal sex-offender registry violations,” and “many of those offenders who failed to register would go free” if the court were to invalidate the delegation in SORNA.
A baker’s dozen of amicus briefs were filed on Gundy’s side, but the U. solicitor general stands alone before the Supreme Court in defending the constitutionality of SORNA’s delegation to the attorney general.
Apart from two 1935 cases, , the government stresses, the court has continually upheld congressional power to delegate, including in cases in which the delegation authorized the executive to trigger criminal sanctions for private conduct.
In addition, as Gundy notes, there are “hundreds of thousands” of pre-SORNA offenders now covered by the attorney general’s guidelines — as many people, he points out, as live in Wyoming — and the court’s decision will determine whether or not they will face criminal liability for failure to comply with SORNA’s registration requirements going forward.