Case No. 17-6086 | 2d Cir.
Preview by Mike Fischer
In response to growing concerns regarding potential deficiencies in existing sex offender registration and notification statutes, Congress established a comprehensive national system by passing the Sex Offender Registration and Notification Act (SORNA) in 2006. The statute sets forth uniform reporting requirements in addition to the criminal penalties associated with an offender’s failure to adhere to deadlines for registering or updating a registration. Recognizing the uncertainty and practical limitations associated with how these deadlines would apply to offenders convicted before the law’s enactment, SORNA directs the Attorney General to specify the applicability of these requirements to any such offenders and prescribe rules for compliance. 34 U.S.C. § 20913(d) (2018).
The petitioner was convicted of sexual assault against a minor in 2004 while on supervised release for a prior drug conviction. Following the completion of his sentence for his sex offense charge, he was transferred to a Pennsylvania federal correctional facility to serve his sentence for violating the terms of his federal supervised release. During this time, the Bureau of Prisons authorized his unsupervised travel to New York, but he subsequently failed to register as a sex offender in accordance with § 2250(a) of SORNA. Petitioner was indicted and eventually convicted for this violation. The Second Circuit affirmed his conviction and sentence.
The question before the Court is whether the provisions in SORNA authorizing the Attorney General to issue regulations and specify applicability to pre-SORNA offenders violates the nondelegation doctrine. The petitioner contends that Congress failed to set forth any standard or policy that would supply an intelligible principle to which the Attorney General must adhere in exercising his authority under the statute. Furthermore, the petitioner argues, the lower court erred in applying the statute’s statement of purpose, legislative history, and prior case law to intuit such a principle. See generally Brief for Petitioner, Gundy v. United States, No. 17-6086 (U.S. filed May 25, 2018).
The government, however, contends that the petitioner’s argument ignores the rules of statutory construction by advocating for a heightened level of nondelegation scrutiny which is inconsistent with the Court’s precedent. Instead, respondent argues, the text and context of SORNA unambiguously declare Congress’s general policy of requiring all sex offenders to register to the maximum extent feasible. According to the government, the narrow scope of the authority delegated by SORNA confirms that the guidance supplied by Congress satisfies the intelligible principle requirement. See generally Brief for the United States, Gundy v. United States, No. 17-6086 (U.S. filed Aug. 2, 2018).
The ramifications of this case extend well beyond its potential impact on criminal sex offenders who would be subject to SORNA’s registration requirements. At a recent symposium at The George Washington University Law School, Professor Jonathan Turley noted that the nondelegation argument has been used as a vehicle to limit the discretion of executive agencies and this case could lay the foundation to make that application broader. “The nondelegation issue has been a sleeper,” Turley said, “but it’s been something that everyone talks about because if you wake this thing up, it could really rampage through existing case law.” GW Law Panel Previews Supreme Court’s Upcoming Term, Geo. Wash. U.L. Sch. (Sept. 18, 2018), https://www.law.gwu.edu/gw-law-panel-previews-supreme-courts-upcoming-term.