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10/02/2018

Gundy and Nondelegation, Today
Michael Ramsey

Today the Supreme Court hears oral argument in Gundy v. United States, a nondelegation challenge to rules issued by the Attorney General under the Sex Offender Registration and Notification Act (SORNA).  At SCOTUSblog, my colleague Mila Sohoni has a preview.  On the key points of the case, she writes:

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.S.C. 20913(d)] violates the nondelegation doctrine.”

Gundy’s merits brief contends that SORNA’s delegation to the attorney general violates a core principle of separation of powers: that only Congress can legislate. That principle, Gundy emphasizes, holds special importance and force in the criminal law context. 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 argues that “an originalist interpretation of the Constitution” flatly forbids such a delegation of legislative power. Moreover, he contends, the delegation does not meet even the lax standard set by the modern test finding a delegation to be constitutional if Congress provides the executive branch with an “intelligible principle” to guide its exercise of discretion. Identifying a host of questions that SORNA leaves unanswered, Gundy argues that the delegation contains no guidance, let alone the requisite “substantial guidance,” on how the attorney general should wield her authority in this important area. Instead, Gundy says, SORNA confers on the attorney general — the “nation’s top prosecutor” — the “unguided discretion” to subject hundreds of thousands of individuals to the act’s registration requirements and its criminal enforcement provisions. ...

And in conclusion:

Beyond the law of sex-offender registration, the approach the court takes in Gundy could have repercussions across the law of the administrative state. Broad delegations of authority to the executive branch form the foundation of modern regulatory government. But given Ginsburg’s dissenting vote in Reynolds, Justice Clarence Thomas’ recent opinions on nondelegation and administrative power, and Justice Neil Gorsuch’s dissent from denial of rehearing en banc in a U.S. Court of Appeals for the 10th Circuit case involving SORNA, there is a real possibility that the Gundy court will issue a ruling that revives the nondelegation doctrine from its 80-year slumber. If the justices ultimately do find that SORNA’s delegation does something more than just “sail[] close to the wind,” then we can confidently expect to see a string of challenges attacking the exercise of federal administrative power in areas ranging from environmental law to immigration law to food-and-drug law to the law of tariffs and trade. Cass Sunstein famously wrote that nondelegation doctrine has had only “one good year”; when the justices issue their ruling in Gundy, we will discover whether it will finally have a second.