How much authority can Congress give to the attorney general to effectively write the criminal laws?
That’s a question the Supreme Court will address next term in a newly added case, Gundy v. United States. This case goes to the heart of the Constitution’s separation of powers and, specifically, how much Congress can pass the buck to the executive branch to make our nation’s laws. And that, in turn, is about safeguarding liberty.
In Gundy, the court will review Congress’ delegation of authority to the attorney general to decide whether and how to retroactively apply the Sex Offender Registration and Notification Act of 2006, also known as SORNA.
SORNA established a comprehensive system of registering sex offenders and requires offenders to register in every jurisdiction where they live, work, or go to school. It replaced a patchwork system at the state level that allowed convicted sex offenders to slip through the gaps in state sex offender registries when they crossed state lines.
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This law has also helped the federal government monitor and track convicted sex offenders after they were released from prison.
But SORNA also delegated authority to the attorney general to determine how the law’s registration requirements would apply retroactively—that is, to sex offenders who had been convicted before SORNA became law in 2006.
Congress did not say how, when, or even if the attorney general should make that determination—one that can impose criminal liability on sex offenders who fail to comply.