The Supreme Court on Thursday handed a win to the federal government in allowing the attorney general to determine if a registration law applies to sex offenders convicted before it was in place.
In a 5-3 decision, the high court ruled Congress did not act unlawfully in the case involving the federal Sex Offender Registration and Notification Act, which requires convicted sex offenders to register where they live. Chief Justice John Roberts and Justices Neil Gorsuch and Clarence Thomas dissented.
Writing for the court, Justice Elena Kagan wrote that under the law, the attorney general can apply the registration requirement “as soon as feasible to offenders convicted before the statute’s enactment” and said the delegation of power to the attorney general by Congress “easily passes constitutional muster.”
“Indeed, if SORNA’s delegation is unconstitutional, then most of government is unconstitutional — dependent as Congress is on the need to give discretion to executive officials to implement its programs,” Kagan wrote.
But Gorsuch, in his dissenting opinion, said the federal statute at issue in the case “scrambles” the design outlined in the Constitution that only elected representatives can adopt new federal laws that restrict liberty.
“If the separation of powers means anything, it must mean that Congress cannot give the executive branch a blank check to write a code of conduct governing private conduct for a half-million people,” Gorsuch, joined by Roberts and Thomas, wrote.
To permit the attorney general to write the very criminal laws he must enforce, he added, “would be to mark the end of any meaningful enforcement of our separation of powers and invite the tyranny of the majority that follows when lawmaking and law enforcement responsibilities are united in the same hands.”
The case centered around Herman Gundy, who in 2005 was convicted of sexual assault in Maryland for raping an 11-year-old girl while he was on supervised release for a previous federal drug conviction. He was later convicted of violating the Sex Offender Registration and Notification Act by failing to register as a sex offender in Maryland and New York.
He challenged his conviction and argued Congress violated the nondelegation doctrine in allowing the attorney general to apply the Sex Offender Notification and Registration Act retroactively to 500,000 people convicted of sex offenses prior to the law’s enactment. The nondelegation doctrine prohibits Congress from delegating its legislative powers to another branch of government.
Gundy, however, lost in the lower courts, and his conviction was upheld.
Eight Supreme Court justices heard the case at the start of its term in October, before Justice Brett Kavanaugh was confirmed to the Supreme Court.
