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.
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Somebody want to explain this in layman’s terms? Is this the justification that will allow SORNA to be “constitutional”?
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.
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).”
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.
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.
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.
http://library.law.virginia.edu/gorsuchproject/u-s-v-nichols/
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?
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 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. 🙂
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.
Until sex offender laws are classified as a form of *punishment*, the root problem with sex offender legislations will never be fixed.
https://www.courthousenews.com/high-court-to-take-up-sex-offender-registration-case/
❓❓ 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?