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This Case Could Help Prevent Congress From Outsourcing Its Power

[ 3/8/18]

Gundy v. United States could result in a ruling that would challenge Congress’ tendency to delegate lawmaking authority to executive offices.

Key takeaways:

  1. SORNA established a comprehensive system of registering sex offenders and requires offenders to register in the jurisdiction where they live, work, or go to school.
  2. In practice, however, Congress delegates quite a bit of authority to executive branch officials and administrative agencies.
  3. When Justice Neil Gorsuch was on the 10th U.S. Circuit Court of Appeals, he dissented from the court’s denial of an en banc rehearing in United States v. Nichols.

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.

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.

The Gundy case focuses on whether that broad delegation of power is constitutionally permissible.

Read more



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Unless “and” Until…SCOTUS addresses the issue of SORNA being an Ex Post Facto violation, we will continue to be prisoners of punishment by the politicians and our own society. The nondeligation issue will just give the politicians another chance to “wordsmith” a way for SORNA to continue retroactively.

I wish Human Rights were an absolute law!

A win for Gundy on the question of delegation of law-making powers to the executive branch by Congress may well be a step in the right direction for upholding the constitution by forcing Congress to take more ownership of the laws they pass and to limit the scope of law-making authority they can delegate. But it’s not likely to eliminate the application of SORNA retroactively. Congress will simply, and probably immediately, amend SORNA to explicitly make it retroactive. The author of this article mindlessly and uncritically repeats a myth that has never been proven to be true: “There’s no denying… Read more »

In addition to the attorney general deciding how to apply it retro-actively, what about that he also decided that it would apply to those given deferred adjudication? To me, that is even worse because now the AG is basically saying, “Convicted” now also means “Not Convicted”. How can he have the power to not only change the English language, but negate a long standing practice of the courts to set aside rulings and not convict someone when it is in the best interest of the people to do so? Also, why does any of this matter since the States are… Read more »

Requiring the legislative and executive branches of government to each operate within its constitutional bounds is good for everyone. If that is the outcome of this case, then it’s interesting that it comes in the context of a case against SORNA. Maybe shining a light on unconstitutional delegation of powers by Congress in this context will do some incidental good. Who knows? But it ultimately won’t change anything for registrants, so it’s not a significant battle against the registry, one way or the other.

I don’t believe you’ve missed anything.

Yep you are absolutely right. This case does nothing. The states have chosen to enact SORA’s all across the country so SORNA is just a suggestion not a mandate by the gov. As applied SORNA only covers federal violations and states have nothing to do with that. Of course every AG in the country can enact their own laws without any delegation of powers. What a waste of resources, once again, that could have very well been used for a real challenge…

What up Chris??? About to have my phone meet and confer at 10:30. Ought to be interesting…Specially since I am going to throw this down..
Not to mention that I already filed this as well…

So New Person make sure you copy and take down these two docs if you are going to file suit man…Very relevant and important I think..

“Congress did not say how, when, or even if the attorney general should make that determination” Because Congress did not write SORNA to be retroactive, therefore is not retroactive… What is not included in the words of the legislature is excluded by the very nature of Law. There is no question. The AG is not a lawmaker and must abide by the effective date that the legislation passed. Any action taken outside the words of the Law, is a crime committed by an outlaw!

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