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: