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New Civil Liberties Alliance to Supreme Court: “Don’t let the Attorney General write criminal laws”

[ – 6/1/18]

The Constitution vests all legislative powers in Congress, and thus bars Congress from splitting its authority with an unelected executive official. Nonetheless, when Congress in 2006 wrote the rules for registration of sex offenders in the Sex Offender Registration and Notification Act (SORNA), it gave a blank sheet, with no guidelines, to the Attorney General to create registration rules for past offenders.

This executive lawmaking is being challenged at the U.S. Supreme Court in Gundy v. United States. Although the particular case concerns registration rules for sex offenders, the decision here will have sweeping implications for all sorts of executive lawmaking. The New Civil Liberties Alliance (NCLA) therefore today filed an amicus brief urging the Court to recognize that its doctrines have legitimized a wide range of unconstitutional executive lawmaking.

“Congress cannot surrender its lawmaking authority,” said Mark Chenoweth, NCLA Executive Director and General Counsel. “Worse yet, Congress may not assign the drafting of criminal laws to the Attorney General, who is the nation’s top prosecutor.”

NCLA’s central legal points include:

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  1. ReadyToFight

    This…..seems like it could be huge. I’m sick of getting my hopes up, but even more sickening is the fact that those in charge at the top creating our laws are those who’s sole purpose in life is to pursue punishment of others and stop at nothing to achieve it. There is no balance and weather they want to admit it or not, it’s eroding society. Those sworn to protect should be protecting ALL of us. Us and OUR Children included. Instead most of us are living like cockroaches. Just trying to survive in the shadows living off crumbs hoping some sick politician doesn’t come try to step on us. If all that matters to them is votes, then let’s band together and take them away and give them to someone that will stand up and defend our constitution. End rant.

    • CR

      “… when Congress in 2006 wrote the rules for registration of sex offenders in the Sex Offender Registration and Notification Act (SORNA), it gave a blank sheet, with no guidelines, to the Attorney General to create registration rules for past offenders.”

      If SCOTUS decides that Congress improperly delegated its law-making authority to the executive branch and strikes down portions of SORNA, I expect that Congress will simply amend the law to explicitly incorporate the rules that the AG has already implemented.

      Maybe the impact of a win for Gundy will have sweeping impacts on Congress’ delegating authority, but it’s not likely to have a huge impact on us.

      • David

        @ CR: If Gundy is successful – despite what you’re saying about Congress simply codifying the AG’s rules into law – a problem for Congress may be the unConstitutionality of Ex Post Facto punishment of SORNA as pointed out by several recent Court decisions (PA, CO, [and recently] NJ, etc). So it actually may impact Registrants.

        • CR

          Eventually I think that will be the case, David. I just don’t think it will be soon. I don’t want to be right about the length of time I think it will take. I very much hope that I am wrong.

          Despite the recent welcome string of court decisions in our favor, most of which have been at the state level or lower federal court level (e.g., Millard, now awaiting review by the 10th circuit), Smith v Doe stands. At the federal appeals court level, I believe only the 6th Circuit has found a registration scheme to violate the ex post facto clause, in the case of Michigan’s scheme. And while SCOTUS denied cert to Michigan in that case, they didn’t consider the merits, so it’s no indication that SCOTUS agrees with the 6th’s decision.

          As long as Smith v Doe sets precedent nationally, there is nothing to stop the federal government from amending SORNA as I have suggested. I don’t see why they wouldn’t do so.

        • TS

          I’m going to just throw this out there for discussion:

          If SCOTUS rules in Gundy’s favor, then the Congress cannot delegate power to the AG to write laws. At the same time, I don’t believe Congress can or will just pick up what the AG has delegated and codify it into law with legal precedent already set of what laws or sections are illegal. You cannot make a law legal that has already been deemed illegal w/o modifications to it to become legal again for voting into codified law.

          Sure, we have seen elected officials be dopes and pass laws that in the end are found to be illegal (leave to the courts to decide, we don’t care). However, there has been quite a bit of precedent in the intervening years to chip away at the laws to weaken them.

          If Gundy wins, then IMO Congress will have to either amend SORNA or supersede to a national standard, i.e. national tier standard, travel, etc, with local implementation, e.g. monies given to the states to implement a new standard SORNA, if they chose, and the states will have to say through their elected officials what they want included in hopes it is included. Does this mean all of the states will implement a new standard? No, I doubt it because they are not on the same page now even with money being offered to be compliant. They’d have to want the Feds money and national standard to implement as I said above.

          I don’t know if this is possible if Gundy wins, but could the state implementation of their own SORNA system at the direction of the US AG become null and void? Would it take a lawsuit to bring it down post-Gundy? Does this make sense? The US AG was delegated the authority which they passed onto the states the ability to do their own programs, e.g 24 hr registration (AK) vs 10 days when visiting (HI)?

          I realize there is plenty of speculation here, but I believe if Gundy wins (which I hope they do) there is more to this WRT RCs that comes into consideration. It is possibly a pretty big leg that is pulled out from the foundation.

        • CR

          “…You cannot make a law legal that has already been deemed illegal w/o modifications to it to become legal again for voting into codified law.”

          TS, the question before SCOTUS in Gundy is whether Congress can delegate broad authority to the Attorney General to write laws without specific direction from Congress. It is this:

          “Issue: Whether the federal Sex Offender Registration and Notification Act’s delegation of authority to the attorney general to issue regulations under 42 U.S.C. § 16913 violates the nondelegation doctrine.”

          Their decision on that question may result in parts of SORNA being rendered invalid and unenforceable, as currently written and implemented, if SCOTUS determines that Congress unconstitutionally delegated its law-making authority to the executive branch.

          SCOTUS is not considering whether or not the retroactive application of a regulatory law is unconstitutional. That is constitutional under long-settled law. It also will not cause the retroactive application of sex offender registration laws to suddenly become unconstitutional. SCOTUS already decided that question in Smith v Doe. They said that sex offender registration laws are regulatory, not punitive.

          To put it another way, the question in Gundy is not whether or not sex offender regulation laws, or SORNA in particular, violate the ex post facto clauses. It is whether Congress improperly delegated its law-making authority.

          Therefore, Congress indeed can simply amend SORNA to make it say exactly what the AG has already implemented. They will not run afoul of any conceivable answer to the question that SCOTUS is considering in Gundy. In fact, by doing so, they would correct their error in improperly delegating authority, should that be what SCOTUS determines.

          As I have said before, Gundy is not a sex-offender registration challenge, as SCOTUS has framed the question that it will decide. It is only the vehicle for their decision on Congressional delegation of law-making authority.

        • CR

          Another way of saying it … The question in Gundy is not whether any particular regulation under SORNA is unconstitutional. It is whether the means by which the SORNA regulations were written was constitutional.

          The answer to that question is not about sex offender registration. It is about delegation of law-making authority.

        • TS


          If I read what you’re saying correctly, based upon a Gundy win, then Congress will just pass a law that amends SORNA to delegate the authority to create registries and travel notification to the current federal standard to each state in the union, the territories, and reservations and they’ll be compensated to do so.

        • CR

          @TS, my thinking is that if SCOTUS says that Congress improperly delegated authority to the AG to write the laws, then SORNA or portions of it become an unconstitutional law for that reason, and for that reason only. It would not mean that the exact same regulations, had they been written into the law by Congress itself, would be unconstitutional. Because the question is not about the constitutionality of the regulations. It is about the constitutionality of how they were written.

          Because SCOTUS long ago settled that a regulatory law, which SORNA purports to be, can be applied retroactively, then Congress could incorporate into a revised SORNA law all of the regulations that were rendered unconstitutional, and that would make it a constitutional law again.

          I don’t think Congress will simply allow SORNA to be vaporized by a SCOTUS decision about the unconstitutionality of how its regulations were written. I think they will re-enact it. What it would look like after a rewrite is anyone’s guess. My guess is that Congress will incorporate all the worst elements of the current SORNA law, plus add even more horrible regulations to it. Because, as we all know, sex offender laws don’t improve with age. They transmogrify over time into ever more hideous expressions of hatred, shaming, shunning, banning, disenfranchisement, and disablement, as they heap ever more stringent controls over us.

          One other thought on this … SCOTUS can do what it pleases. They could say that Congress unconstitutionally delegated its law-making authority, but that the SORNA regulations can remain as written by the AG anyway, because “frightening and high”. That would be perfectly legal.

        • CR

          ” a problem for Congress may be the unConstitutionality of Ex Post Facto punishment of SORNA as pointed out by several recent Court decisions (PA, CO, [and recently] NJ, etc).”

          @David, none of those decisions constrain the federal government in any way. I implied that in my first reply to you, but I wanted to say it more directly.

          All of them challenged state sex offender laws. None of them challenged federal SORNA. They all only apply in their own jurisdictions. Only the decision of the 6th Circuit in Does v Snyder covers more than one state right now.

          And just to show how slowly things change, the 6th issued its opinion in favor of Does in August of 2016. SCOTUS denied cert to Michigan, which sought to reverse the decision of the 6th Circuit, in October 2017. And as of now, June of 2018, nothing at all has changed in how Michigan administers its sex offender registration statutes.

        • TS


          That is quite the conundrum. The kicker is SORNA would not be the only one impacted, if Gundy is a win, as written in the paper. Congress would have their work cut out for them.

          Thanks for the discussion. Enlightening.

        • AJ

          I think they will re-enact it. What it would look like after a rewrite is anyone’s guess. My guess is that Congress will incorporate all the worst elements of the current SORNA law, plus add even more horrible regulations to it.
          I foresee Congress having a bigger fight on its hands if it has to re-do SORNA stuff. Between court cases, government and academic research, “converts” like Patty Wetterling, advocacy groups like ACSOL, and whomever else I missed, I don’t think it will zoom through as it did when everyone “knew” RCs are incurable and “stranger danger” was de rigeur.

          In short, the knowledge and data haven’t changed enough to repeal SORNA, but I suspect they may have changed enough to impact re-enactment or strengthening.

        • CR

          @AJ, I hope you are right about that. It’s just that IML was pushed through very recently, and most of the evidence that exists today existed then too. It didn’t deter Congress from passing it.

  2. E

    Can someone from this group speak at the ACSOL conference? They could be huge allies in this cause. RC laws may be one of their best examples of unconstitutional delegation. Of course, I would not be interested in Congress just taking the Justice Dept’s interpretations and codifying them. Would this group be ok with that as long as it actually came from Congress? One wonders.

  3. Anonymous

    Bullseye!!! Thank you, thank you.

  4. Richard

    It seems to me that if “Congress cannot surrender its lawmaking authority, to the AG the nation’s top prosecutor. And the win is for Gundy then Sorna would be deemed unconstitutional and sent back to congress to rewrite into a constitutional law and being, constitutional each aspect of it would meet constitutional guidelines. And would not apply to offenders retroactively, those who was convicted before passage of new law! This is how it should go down!

    • CR

      “And would not apply to offenders retroactively, those who was convicted before passage of new law!”

      SORNA is a regulatory law. It can be applied retroactively without violating ex post facto.

      • Henry

        “SORNA is a regulatory law”

        Yeah, a regulatory law that has criminal punishments. Show me any other regulatory law that will put you in jail/prison or on probation. It an Ex Post Facto violation with a twist!

        • CR

          I could show you examples in almost any statutorily complex civil regulatory law. It is extremely common for civil regulations to have criminal penalties for violations. There is nothing at all unusual about that. Sex offender laws that are purportedly regulatory are no different from the norm. I’m not saying I think it is right or good, but it is the norm, not the exception.

          This article is a decent introduction into the matter of civil regulations with criminal penalties:

        • AJ

          Show me any other regulatory law that will put you in jail/prison or on probation.
          Easy: consult any of the regulations of the SEC and see what happened to Michael Milken and Ivan Boesky, at minimum. As CR mentions, there are plenty of civil regs that yield criminal sanction.

        • Henry

          @CR and @AJ

          You have both made a good (and enlightening) point, but here is the difference. Every year SO Laws get more stringent and oppressive. No other regulatory law has this same propensity to (literally) push these effected individuals to the margins of society.

          The article you referenced stated…..but it is often compounded by regulators who expand the scope of those statutes by implementing regulations in ways that Congress most likely never envisioned.

          Maybe our current congress does not care how it effects all of us, but this is where SCOTUS can step in to give relief based on the pure torture of the SORNA law. It has morphed into something that was never thought of it becoming. Politicians have just used it to gain votes for themselves.

          You have both educated me on the term “regulatory” as it applies to law, but it is still punishment applied after the fact and SCOTUS has even made comment about it in Packingham when Justice Kennedy said it “(Of importance, the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system is also not an issue before the Court.)”

          The issue may not have been before the court at the time, but Kennedy and others were concerned about the problem created by the extreme facets connected to the Regulatory Laws when attached and applied to those who were off paper.

      • Richard

        If Sorna is found to be unconstitutional because of the way it was written without guidance on how to apply it then all prier court rulings that upheld Sorna wouldn’t that make them void because statute will not violate the ex post facto clause only if it is designed to be nonpunitive and regulatory and the state’s choice was excessive in relation to its legitimate regulatory purpose.” United States v. Carr, 2007 WL 3256600, at *2 (N.D.Ind. Nov.2, 2007). “As a consequence, the legal analysis properly begins with a consideration of whether the statute is criminal or civil.” United States v. Kent, 2008 WL 360624, at *3 (S.D.Ala. Feb.8, 2008). This should be a challenge, once SCOTUS rules in Gundy’s favor

        • TS


          Good point. What sort of reset point is reached then WRT the applicability of previous rulings, e.g. Sixth Circuit, etc?

  5. mike r

    I contacted the attorneys and received a responde in about ten to twenty minutes later. Here is what I wrote and the reply.

    Hello Mr. Martyak,
    My name is Michael Richardson and I have a Pro Se Compliant filed and proceeding through the California Eastern District Court and am in desperate need of assistance. I have tried and contacted every source I could possibly imagine and no one has showed any interest in helping me. My entire chronological case can be found on my site at
    Here is a copy of the current brief I am working on right now in preparation of trial in the coming months. If you would take the time to read through the docs and get back to me and let me know if this is something that you or your organization my get involved in that would be great. I am doing okay and holding my own so far but it would be great to have some legal expertise assisting me.
    You can also locate my complete case on Pacer at

    Thank you for your time and I truly hope to hear back from you,

    Thank you for your email, Mr. Richards.

    I will discuss with my legal colleagues and respond further next week.

    Joe Martyak

    I guess we will see what happens if they are just going to be lime all the rest.

  6. 290 air

    So if they determine that congress has to make the rules then would we be bound by the current rules until Congress updates them or would we not need to comply with SORNA until Congress did pass whatever rules they decide? If we didn’t have to comply until congress came up with their own rules then we could get some relief from SORNA for the time being such as the 21 day notice to travel… correct?

  7. CCR

    Before IML was passed it stalled in congress for years. So the AG simply added the 21 day notice into AWA. No legislation was written, debated or voted on. How in the hell can that be LAW????

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