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General News

The Supreme Court May Revive a Legal Theory Last Used to Strike Down New Deal Laws

[UPDATED links 3/9/18] [slate.com]

On Monday, the Supreme Court agreed to hear Gundy v. United States, a constitutional challenge to federal sex offender regulations. If, like me, you believe that America’s current sex offender regime is draconian, unjust, and counterproductive, that might sound like good news! And perhaps it is. But there’s one aspect of the court’s grant that may be very bad news from progressive viewpoint: It will only consider whether the policy in question violates the nondelegation doctrine—a hazy legal principle last used to strike down New Deal legislation in 1935.

Full Article

Related

How a strange Supreme Court case involving sex offenders could gut the EPA

ScotusBlog.com

Making a fulsome case on the merits against sex offender registries [sentencing.typepad.com] [added 3/9/18]

 

 

 

Join the discussion

  1. Josh

    Somebody want to explain this in layman’s terms? Is this the justification that will allow SORNA to be “constitutional”?

    • AlexO

      Man, that’s a tough one to understand. I THINK the article was about this being a double edge sword in that it would make the registry much weaker as it would remove/curb the government abilities to directly force people to do something (register), but could also be applied to other regulations such as the government telling companies how to conduct business, including how to dispose of waste, minimum wage, and anything else companies are only doing because of regulations imposed on them. It would basically give back freedom in a very broad sense of the word.

  2. mike r

    This is a very narrow technicality but may very well succeed. I like the fact that Gorsuch and the others are and were concerned abut this issue. I guess this will help chip away at the registry just as the Packingham case did. It might be narrow and a tech. but it could be an important and suggestive decision. I think SCOTUS is itching for a real challenge to sex offender registration.

    “Yet the provision of SORNA at issue in Gundy does, in former Justice Antonin Scalia’s words, sail “close to the wind with regard to the principle that legislative powers are nondelegable.” Unlike other federal laws delegating authority to federal agencies, SORNA does not place many explicit limits on which sex offenders can be required to register by the Attorney General.”

    I wonder how this would effect the states if at all. I guess it could be applicable to state AG’s as well.

    • mike r

      United States v. Nichols.
      A third decision is equally illuminating in understanding Judge Gorsuch’s view of nondelegation and its importance as a protection of individual liberty. That case is United States v. Nichols, 784 F.3d 666, 667- 7 (10 Cir. 2015) (Gorsuch, J., dissenting from the denial of rehearing en banc). The case involved Lester Nichols, a convicted sex offender who left the United States without updating his status on the federal sex offender registry. He was charged with failing to register, in violation of the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250(a). One of the issues raised was SORNA’s delegation of authority to the Attorney General to determine SORNA’s retroactive application is unconstitutional. Judge Gorsuch wrote a dissent to the denial of a rehearing en banc. Article I of the United States Constitution states that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” U.S. CONST., art. I, § 1. Those words and the general principle of the separation of powers led to “the nondelegation doctrine: that Congress may not constitutionally delegate its legislative power to another branch of Government.” Touby v. United States, 500 U.S. 160, 165 (1991). While the Supreme Court has long reaffirmed the need for Congress to exercise such powers, it created a fluid test that allowed agencies to “fill up the details” left by legislation in the execution of laws.48 The Court allowed delegation of rulemaking powers if there is an “intelligible principle”49: a standard that has proven perfectly unintelligible in allowing any statutory reference— short of utter silence50—to suffice for delegation.51 The Nichols case presented a particularly stark and troubling example of delegation. Judge Gorsuch noted that this doctrine protects individuals from the arbitrary and abusive use of power. In his dissent from denial of rehearing in banc in Nichols, Judge Gorsuch made a powerful case for the nondelegation doctrine as an essential structural safeguard of individual liberty. He stated correctly that “If the separation of powers means anything, it must mean that the prosecutor isn’t allowed to define the crimes he gets to enforce.” Id. at 668. He added: Without a doubt, the framers’ concerns about the delegation of legislative power had a great deal to do with the criminal law. The framers worried that placing the power to legislate, prosecute, and jail in the hands of the Executive would invite the sort of tyranny they experienced at the hands of a whimsical king.

      https://www.hsdl.org/?view&did=802726

  3. mike r

    AJ and Chris or whomever, Remember my separation of powers issue? I bet I can add this to my argument and just be like “I am Pro Se and I just figured out what or how this violated the Constitution.” I think I laid it out already but just didn’t know how or what was actually being violated, right? Here’s my argument. It is fairly short moderator so I hope you allow it. Maybe we can get a productive thread out of this.

    Separation of Powers:
    The United States Constitution contains several provisions related to criminal sentencing. The Sixth Amendment to the United States Constitution prohibits increasing the maximum authorized sentence for an offense based on a fact not found by a jury. The Supreme Court has held that every fact that increases the maximum authorized sentence or minimum mandatory sentence must be named in the charging instrument, submitted to a jury, and proved beyond a reasonable doubt—whether or not statutory law labels that fact as an element of the offense or a sentencing factor.
    Plaintiff is subjected to mandatory punishment exceeding the maximum sentence allowed by law by the legislature in California’s SORA and Megan’s Law. This is an impermissible act that goes beyond legislative authority, since the legislature is circumventing the judicial process by enveloping the sex offender registration policies (punishments) in the guise of civil regulations. These legislative acts are completely bypassing the judicial process in which “every” element that invokes the sentence must be proven beyond a reasonable doubt in a jury of Plaintiff’s peers. Once again, there was never a trial in which it was proven beyond a reasonable doubt that Plaintiff possesses the proclivity to reoffend, which is the keystone element in the sex offender registration and notification statutes.
    To deprive anyone of their constitutional liberties because of a conviction should be left in the hands of the judiciary, and any encroachment on that judicial discretion should be closely scrutinized. For the legislature to focus on a group, it must be common knowledge that every individual in that group must have the feared characteristics that the legislature is attempting to control. In Brown, the Court found that section 504 inflicted “its deprivation upon the members of a political group thought to present a threat to the national security,” and, therefore, members of the unpopular Communist party were an easily identifiable group. 381 U.S. at 453. Congress did not enumerate characteristics that it wished to eliminate from government service, but identified the group as a whole, which constituted prohibited legislative fact finding. Id. at 456, 464.
    When it comes to the label of sex offender, it is far from “common knowledge that all [] members of the group possess the same feared characteristics” and the legislature cannot point to any feared characteristic which all sex offenders possess in such a broad range of offenders .
    Additionally, any case such as this calling upon prohibitions against Bill of Attainder, rights of privacy, or other fundamental liberties, and the principles of Separation of Powers, is inevitably a major constitutional holding and must survive “exacting scrutiny.” “We long have recognized that significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental interest …. [W]e have required that the subordinating interests of the State must survive exacting scrutiny.” Buckley v. Valeo, 424 U.S. 1, 64 (1976).
    If Congress continues to breach its authority in enacting and maintaining statutory mandatory punishment (sex offender registration and notification) beyond that of the maximum sentence allowed by law, the Supreme Court and federal courts should exercise their authority and deem these laws unconstitutional. See, Marbury v. Madison, 5 U.S. 137 (1803).

    See, Ring v. Arizona, 536 U.S. 584 (2002), overruling Walton v. Arizona, 497 U.S. 639 (1990); Apprendi v. New Jersey, 530 U.S. 466 (2000); Jones v. United States, 526 U.S. 227 (1999); Alleyne v. United States, 570 U.S. ____ (2013), overruling Harris v. United States, 536 U.S. 545 (2002).
    “Although sex offenders are often viewed as a homogenous group by the public, they are in reality a diverse mixture of individuals who have committed an array of illegal acts, ranging from noncontact offenses such as exhibitionism to violent sexual assaults (Center for Sex Offender Management [CSOM], 2001).”

    • mike r

      I love this excerpt. Need to fit the following in there some how.

      Article I of the United States Constitution states that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” U.S. CONST., art. I, § 1. Those words and the general principle of the separation of powers led to “the nondelegation doctrine: that Congress may not constitutionally delegate its legislative power to another branch of Government.” Touby v. United States, 500 U.S. 160, 165 (1991). In his dissent from denial of rehearing in banc in United States v. Nichols , Judge Gorsuch made a powerful case for the nondelegation doctrine as an essential structural safeguard of individual liberty. He stated correctly that “If the separation of powers means anything, it must mean that the prosecutor isn’t allowed to define the crimes he gets to enforce.” Id. at 668. He added:
      Without a doubt, the framers’ concerns about the delegation of legislative power had a great deal to do with the criminal law. The framers worried that placing the power to legislate, prosecute, and jail in the hands of the Executive would invite the sort of tyranny they experienced at the hands of a whimsical king. Id. at 670.

  4. mike r

    http://www.scotusblog.com/case-files/cases/gundy-v-united-states/
    Link to the actual briefs. This is interesting. I need to research this more for sure.

    • mike r

      Yeah this seems pretty irrelevant anyways since all congress is going to do is amend it or rewrite. It’s fodder but that’s all I see out of it. Very limited tech. issue. Although it might have a bigger impact in other areas of law though.

      “While the Nondelegation Doctrine does not prevent Congress from “obtaining the
      assistance of its coordinate Branches,” it can do so only if it provides clear guidance. Id. at
      372-73. “So long as Congress ‘shall lay down by legislative act an intelligible principle to which
      the person or body authorized to [exercise the delegated authority] is directed to conform,
      such legislative action is not forbidden delegation of legislative power.”‘ Id. at 372 (quoting
      J. IV Hampton, Jr, & Co. t United States, 276 U.S. 394 (1928)).”

  5. Fb

    During law school, my exposure to the nondelegation doctrine was in the context of plenary powers granted to certain government-made entities. It’s hard to see this applied to a regulatory scheme like SORNA. The Justices may be using this case to expand nondelegation or else define it for modern use.

    • AlexO

      @Fb, could you explain a bit what that means in general? What you wrote still reads like Greek.

      • Fb

        Plenary powers are the exercise of authority by one branch, or government entity, that has no oversight. We like to think that in the United States there are checks and balances for every act by the government; this is not true. For example, the President can pardon someone and no act by Congress or the Courts can undo that. Congress has given plenary powers to entities it creates- look up the Tennessee Valley Authority.

        In theory, if SORNA fails due to nondelegation issues, Congress could create a SORNA entity that could ‘legislate’ itself.

        • AlexO

          Thank you for the explanation. It’s much more clear now.

        • Tim Moore

          “In theory, if SORNA fails due to nondelegation issues, Congress could create a SORNA entity that could ‘legislate’ itself.”

          This sounds like it would be worse than what we have now.

        • Tim Moore

          I have read that Congress has plenary power to regulate immigration, based on the idea that the nation has the right to define its own borders. From what reasoning could a SORNA agency be created with plenary powers?

  6. mike r

    I agree, no real bite for RC laws

  7. mike r

    Here’s an interesting site. Has all of Gorsuch’s cases. Wonder if they have this for all the justices.

    http://library.law.virginia.edu/gorsuchproject/u-s-v-nichols/

  8. TS

    I don’t know about no real bite on RC laws but may be not.

    SORNA delegates to the States, if they want Fed funding, to come up with a registry that is SORNA compliant. Not all of the states are compliant.

    This may be a stretch, buuuut, this could take away the States ability to do their own registry and force a following of the Federal model of tiers, IML reporting, etc where every State, Territory and Native American land is federally compliant afterward & administered by those entities w/Fed funds to administer it or force a federal register overall to be administered by USG. Implementing it would be another headache, er, I mean, matter to complete, but it would have to fall under some federal entity, as @Fb said, to do so. That would make registration an interesting concept and funding the entire premise a nightmare every year, I’d think. 800,000+ people for the government to process, track, etc on top of the other work needing to be done?? This says nothing of ways to be assessed, removed, etc.

    Is this plausible?

    • JohnDoeUtah

      Technically, IMO, this has already occurred. Nothing in SORNA states that it’s purpose is to be “a floor and not a ceiling.” That little line of thought was added by the AG, giving the states the latitude to go above and beyond SORNA. But, in the plain reading of SORNA there is no such allowance – it is a complete overhaul of the registry schemes in the US to follow one and only one standard.

      Usually, whenever Congress makes a law, it’s law is absolute, and state law must yield to it. The States only have power where Congress has chosen not to act. (Supremacy Clause).

    • Tim Moore

      Plausible, who knows, but possible, yes. The defense department, FEMA, EPA, HUD, the security agencies all have a much greater responsibilities than tracking a few hundred thousand registrants, Anything can be done, if people want it. Hopefully they will get wise and see the lack of value in all of this registration hooey.

  9. Brian

    If I read this correctly is it saying they have plans to abolish the registry scheme, or nix the extra punishment? But it could also disrupt other things also.

  10. Chris F

    My first attempt to post this failed, let me try again:

    If successful, this could be really BIG for another reason, and something else that needs to be challenged in the same way.

    Sex Offender registration wasn’t written to include those NOT CONVICTED. The part that was added to it that re-wrote convicted to mean “plead guilty” and included “deferred adjudication” was added by the Attorney General. According to this Constitutional protection, he can’t do that, and anyone that doesn’t have a final conviction shouldn’t be subject to registration. Congress didn’t put that in there.

    THIS needs to be challenged after we see how this challenge goes. This is identical to the current challenge in every way, so I don’t see how they could find this current one before SCOTUS Unconstitutional and yet allow the AG to define “Convicted” to mean “not convicted, but plead guilty”.

    I would love it if Janice could comment on this. I don’t see how they aren’t identical problems from the same constitutional violation. I don’t ask for Janice to comment very often, as I know she is very busy. 🙂

    • CR

      Chris F, I am in Texas, and I believe you are too. Even if the Supreme Court were to rule that the US AG had no authority to define “Convicted” to mean “not convicted, but plead guilty”, do you think Texas would agree that the ruling applied to its practice of requiring those with deferred adjudications (i.e., “not convicted but plead guilty”) to register?

      I believe the practice in Texas would not be affected by such a ruling since Texas is not a SORNA state, and because Article 62.001 of the Code of Criminal Procedure says “Reportable conviction or adjudication” means a conviction or adjudication, including an adjudication of delinquent conduct or a deferred adjudication, that, regardless of the pendency of an appeal, is a conviction for or an adjudication for or based on: …”, and then goes on to list all of the offenses that require registration.

      The Texas legislature put that in the law. It’s not an interpretation by the Texas AG nor a requirement of the Federal government, since Texas doesn’t comply with SORNA.

      Just curious to know your thoughts on this.

      I might also add that I don’t think a win on this issue from SCOTUS will have any lasting effect on sex offender registration laws. US Congress will just pass new legislation that spells it out more completely, thus relieving the AG from having to wing it.

      • Chris F

        Yes, I am in Texas and you are correct in that it won’t change anything in Texas.

        It should change things in SORNA compliant states, or at least could open it up for debate to change the laws, though we know legislators never reduce penalties.

        It would also add more fuel to the fire of declaring IML and denial of federal housing assistance as violating Equal Protection, since states could differ even more on what gets you on the registry and what doesn’t.

        I am curious now, since States control who is on the registry and under what conditions, how is it that the federal AG set the rule that Ex post facto put this guy on the registry and not his own state’s laws?

        • Brian

          @Chris
          That’s a good question that’s for sure, wander if it could be am Iml things, now that people are winning agianed these bullshit laws someone has to step in and screw things up😡😡😡

    • pat

      Interesting point Chris F, but I believe that when you plead guilty you are convicted by your own hand. Everyone seems to forget that adjudicatory power of the court ends with imposition of sentence. All those “adjudicated” to be a “sex offender” imposed with “duties” and “restrictions” at a later date are victims of “human trafficking”, “defined by the U.S. Department of Homeland Security as modern-day slavery involving the use of force, fraud, or coercion to obtain labor or a commercial sex act”, at the hands of their government. We have ALL been duped!

      • CR

        No, if you plead guilty and are sentenced to deferred adjudication probation in Texas (“ORDER OF PROBATION WITHOUT ADJUDICATION OF GUILT”), then if you complete your probation successfully, you do not have a conviction.

        There was no mention of registration in my sentence, and no mention of it in my plea deal, since there was no registry at the time.

  11. Illinois Contact

    I think this is a dumb move. Who is this Gundy and where did he come from? Has this been on anyone’s radar, moving up through the courts? My reading is that he is essentially agreeing that SORNA (and similar state laws) are not punishment (and therefore prohibited by ex post facto), and that they are in fact “administrative,” but if so are prohibited because the USAG is not allowed to apply these laws retroactively (overstepping his Constitutional authority). If Gundy succeeds, I anticipate that Congress would simply rewrite SORNA to apply to sex offenders convicted before the law’s passage. Probably Chris Smith will author the rewrite and it will pass unanimously.
    How annoying that the first registration case to reach the US Supreme Court will not challenge our basic core objection, that’s it’s punishment and needs to pass Constitutional muster as such.

    • Registries for all! 😡

      Even if Gundy prevails, I suspect “Illinois Contact” is correct. Just as we witnessed in Pennsylvania, legislators will simply rewrite their way around the Court’s decision to continue implementing the Registry just as they wish to. 😡

      ⛥⛥ Once again, it is only when everyone has a brother, father, son, uncle, best friend or neighbor on a registry will these Registries ever be abolished.⛥⛥

  12. The Static-99R Is A Scam

    Until sex offender laws are classified as a form of *punishment*, the root problem with sex offender legislations will never be fixed.

    • Registries for all! 😡

      Yes, maybe then – if the Courts give legislators no wiggle room at all – maybe then the Registries will be abolished.

    • David

      Thanks for posting the link, HB 631. Unfortunately, the piece is very poorly written. A large part of the argument turns on what is – and what is not -“punishment”. And then, whether it is retroactive punishment or not. Very poorly written by its author.

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