Wednesday, October 3, 2018

Non-Delegation Challenge to Sex Offender Statutes Faces Uphill Battle at Court

The Supreme Court heard oral arguments yesterday in Gundy v. United States, the case testing whether the federal Sex Offender Registration and Notification Act delegated too much authority to the Attorney General to determine the Act's application to pre-Act offenders. Our preview is here.

If the arguments any any predictor, the Non-Delegation Doctrine challenge to the Act faces an uphill battle. Indeed, there was only one Justice, Justice Gorsuch, who seriously went to bat against the Act. And his problems with the Act sounded more in due process (void-for-vagueness), and not in the separation of powers or non-delegation.

The question for the Court was whether SORNA's delegation to the AG to determine the applicability of the Act to pre-Act offenders provided an "intelligible principle" to guide the AG's decision. If so, there's no delegation problem; if not, there's a violation of the Non-Delegation Doctrine. (That Doctrine seeks to preserve the separation of powers by preventing Congress from delegating too much law-making authority to the Executive Branch.)

The Court's approach will likely turn on two considerations. First, can the Court look to the Act in its entirety in determining whether Congress legislated with an "intelligible principle," or is it restricted to the particular provision that delegates authority to the AG to determine its application to pre-Act offenders? (Related: Should the Court seek to interpret the Act to avoid a delegation problem?) Court precedent and most of the Justice who spoke seemed to favor the former approach; only Justice Gorsuch spoke out forcefully in favor of the latter approach (and, again, his objections really sounded in due process, not the separation of powers). Next, does the Non-Delegation Doctrine apply differently to legislation that provides more serious enforcement than to legislation that provides less serious enforcement? In particular, is the Doctrine more rigorous when the delegation goes to the AG (as chief federal prosecutor of federal crimes, as opposed to an ordinary regulatory agency), because a vague delegation would put both the power to interpret the law and the power to prosecute the criminal law in the hands of one executive officer? Again, precedent and questions seemed to say no, and, again, only Justice Gorsuch seriously pushed back.

As far as the separation of powers goes, it's worth noting that if the Court rules that SORNA violates the Non-Delegation Doctrine, this is a net gain for the judicial branch: it means that the courts can play a more aggressive role than they have played in determining the authority of executive agencies in interpreting and executing the law. To that extent, we might consider this case alongside other challenges to the administrative state (challenges to the Chevron doctrine, challenges to Morrison v. Olson and independent agencies, etc.).

It's certainly possible that the Court might do some refining around the edges of the Non-Delegation Doctrine. (Maybe that's why the Court granted cert. Otherwise, the grant seems a mystery.) But it seems quite unlikely that the Court will hold the SORNA's delegation to the AG unconstitutional.

Congressional Authority, Executive Authority, News, Oral Argument Analysis, Separation of Powers | Permalink


Registration is Servitude!

SORNA forces [me] to leave my home and travel to a police station to deliver public safety data, under oath, and submit to photographing and fingerprinting, for publication on a website that is scraped by private enterprise for redistribution and profit making purposes. E.g.; I am required to remain on-call around a 48 hour clock to keep the data current, year round, in perpetuity. That is a seizure. I must do so at my own expense. That is exploitation.
SORNA transforms [me] into a delivery boy, expert witness and assistant website content manager. The value of that service exceeds 200k per year as the approximate cost to government of acquiring the data it wants by alternate means, like hiring enough cops to collect the data without molesting me.
Article 1 Sections 9 and 10 prohibit congress and state legislatures from singling people out for deprivations. That’s a bill of attainder, or pains and penalties. Cummings v. Missouri. And the 13th Amendment unquestionably prohibits Servitude except as a punishment for crime of which a citizen has been duly convicted which requires Judicial process and the safeguards embedded in the 6th Amendment. All of them.
Hence, Congress can’t lawfully impose Servitude against a subclass whether civil or not. Dancing around vagaries like delegation of power and retroactivity is a red herring that distracts from a historically outrageous usurpation of power and treasonous disregard for the Judiciary and the bill of rights. Incredible!
SORNA is the regulation of human beings. Plain and simple. Forced labor, involuntary servitude, kidnapping and trafficking all rolled up in one. Felony crimes. Proponents of SORNA should be indicted, for warring against the constitution.

Lock em up!

Posted by: Larry | Feb 8, 2019 11:29:41 PM

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