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This Case Could Help Prevent Congress From Outsourcing Its Power


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.

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If Justice Kennedy didn’t write McKune v. Lile and Smith v. Doe–which both relied on a fictitious statistic–we wouldn’t have to worry about registration laws being classified as a ‘civil’ penalty (and evading the Eighth Amendment constitutional protection). Speaking of which, Justice Kennedy is retiring soon:

GOP Senator Dean Heller is saying that Kennedy will retire this summer, but there has been no confirmation of that by Kennedy or any other non-GOP source. At this point, it’s just a rumor. Kennedy has hired clerks for next term, so it doesn’t look like he is about to retire.

Sen. Dean Heller, R-NV, is looking for publicity to retain his Senate seat and using this as one way to do it. Look him up online and read the other articles in the public squares on the information superhighway. Draw your own conclusions from what you read.

fictitious statistic. This should be brought out if they possibly can. I have no clue what numbers were given or the AG used when SORNA was written or put into effect. 42 U.S.C. 16913(d)Congress at the very least placed it within the Attorney General’s discretion to apply SORNA’s requirements to sex offenders with pre- SORNA convictions if he determines (as he has) that the public benefits of doing so outweigh any adverse effects. Notice the “if”. recidivism is so low and the registry has no benefited the public what so ever so they can’t say that it outweighs the adverse… Read more »

“There’s no denying that the criminal defendant in this case—a man who drugged and raped an 11-year-old girl—committed the kind of horrendous and predatory crime that illustrates why SORNA’s sex offender registration requirement is necessary for public safety.” No, not it’s not a good example. The Registry in no way keeps anyone safe. It’s not a shock collar that activates right before the person is about to commit a crime. It’s not a GPS monitor with 24-7 eyes on the persons every step. It in no way prevents the person from dragging someone into their home or a back alley… Read more »

The media will have a field day with this making it seem all on the registry are like him.
Inturn the public will continue to believe the registry is a good thing, not understanding the percentage of criminals on the registry like this are very low. Nor will they understand the recidivism rate is low and not what it’s been made out to be.

Would it be safe to say 85-90% should not be on the registry.

The article writes this:

This law has also helped the federal government monitor and track convicted sex offenders after they were released from prison.

Isn’t that the definition of still being in custody? LoL

Yes it is! But they have unfortunately already ruled Megan’s Law not being “custody,” however.. it’s most definitely confinement, banishment, constraint and containment. Not to mention subjugation, harassment, oppression and reckless endangerment.

It forgot to mention it does this tracking on the backs of state and local entities who are paid to do it. I don’t see the AG with the power to write laws and then pass them. He is the chief prosecutor, not the one who can write the laws, then prosecute as he sees fit. The laws have to come out of Congress. I also still see an ex post facto issue with retroactive application of SORNA. Congress cannot pass a law, to my knowledge, that addresses negative retroactive regulation or punishment. It could pass a positive retroactive regulation… Read more »

TS, can you explain what you mean by positive and negative retroactive regulation? Or give an example, perhaps? I know what retroactive means, but I don’t understand what you mean by positive and negative in that context.

California’s new tiered registry can be considered positive retroactive regulation. Those put on tier one or two have a chance to change their term from lifetime to ten or twenty years, and it applies to those with existing offenses not just offenses after the law’s date.


I echo what Tim Moore has written here with his positive example and the converse would be extensions for those from set terms to lifetime after their initial sentencing was under different law.

Using the tiered registry again as an example, some negative effects would be that it is putting some people on the web site who are excluded now. That is ex post facto negative — threat to life and limb from vigilantes, whether you use the word punishment or not — conseqences. I would like to see the Medoza tests (is that right, it’s too late to look it up) be applied to every change in the registry, compared to the Smith case. There might be some surprising new conclusions on what is punishment. It kind of erks me that everyone… Read more »

@Tim Moore and @TS, thanks for elucidating. So positive and negative could be subjective from the perspective of the registrant, depending on the effect on him or her. Or a change in the law could be regarded as generally positive or negative, based on its main impact.

@Tim, it’s the Mendoza-Martinez factors. I have to look up Smith v Doe every time I want to refer to them because I usually can’t remember both names accurately or at the same time!

Thank you. Mendoza-Martinez. Has a ring to it. Anyway, since those factors play high in determining Alaska’s Megan’s law to be only regulatory, it behooves us to remember those factors and test them against our own experiences. Maybe jot down each time the law affects us and compare to those factors, that and keep referring back to the falsehood of “frightening and high”. Regulation comports to controlling the potential actions of masses of people, therefore statistics are relevant. Punishment comports to responding to the specific acts of an individual, and statistics can not substitute for direct evidence of a person’s… Read more »

If you ask anyone who isn’t directly involved in this and trying to win votes, yes. If you’re actively being monitored under a penalty of imprisonment for otherwise doing what any free citizen is doing (traveling, attending your child’s needs on school ground, living in a damn home that you can afford, in a place you like), you’re definitely still in custody.

More like probation/parole!

Mandatory minimum sentences are just the opposite. They are Congress taking away the discretion of the judges. There are pros and cons to “soft” separation of powers borders, I guess. There are some details available to judges and regulators in individual cases that need to be considered to best obtain the spirit of the law. Lawmakers can not forsee every detail, and laws that try to do that and micromanage everything, end up like California’s mess of laws.

Interesting comments here. But people who read the article will never see them. It is time to commitment to overwhelming the terrorists who support the Registries. We should speak loudly and often. Copy your comments to the source article.

State of Louisiana passed retroactive registration on sex offenders in 1992 way before SORNA was implemented. If you are released in 1993 you have to register. However, if you are released in 1992, you get a free pass. Equal protection of the law, yea right!

This is very telling, if you are released July 18th 1992, you don’t have to register, if you are released July 19th, 1992, you then will have to register. Additionally, my point is, how can the State of Louisiana pass an unconstitutional law on retroactive registration before congress gave power to the Attorney General’s Interim rule.

Wake up America! There it is right before your eyes. They are tripping over themselves violating our Constitution. This, I think is a test to see how far they can go in destroying our rights.


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