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

[UPDATED links 3/9/18] []

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


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

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




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

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.

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… Read more »

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… Read more »


and even though the 10th circuit refused to reconsider their ruling at the request of Justice Gorsuch with the Nichols case, ” all ” of the 8 SCOTUS justices agreed with Gorsuch and reversed the 10th circuit court of appeals decision.

Scroll to the bottom for Nichols.

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… Read more »

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… Read more »
Link to the actual briefs. This is interesting. I need to research this more for sure.

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… Read more »

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.

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

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.

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

“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.

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?

I agree, no real bite for RC laws

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

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… Read more »

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… Read more »

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.

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.

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… Read more »

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”… Read more »

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… Read more »

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😡😡😡

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!

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.

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.… Read more »

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.⛥⛥

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

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

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.

❓❓ Any updates?? ❓❓
1. Do we know if they intend to re-hear this case now that SCOTUS has a full bench?
2. Any idea when we might hear the decision of SCOTUS on this case?

@David I am not seeing a Gundy relisting for rehearing on SCOTUSblog, but if someone else here does, please say so and cite it for all to see. Also, from SCOTUSblog, regarding how long it can take to hear an opinion from SCOUTS: The time it takes to finalize an opinion depends on several factors, including how divided the justices are, which justice is writing the opinion, and the court’s schedule. Typically, all cases are decided by the time the court recesses for the summer at the end of June or the beginning of July. It could be awhile IOW… Read more »

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