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

[news-journal.com – 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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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… Read more »

“… 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… Read more »

@ 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.

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… Read more »

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… Read more »

“…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… Read more »

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.

@CR

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.

@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… Read more »

” 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… Read more »

@CR

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.

@CR: 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… Read more »

@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.

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.

Bullseye!!! Thank you, thank you.

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!

“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.

“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!

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:

https://www.heritage.org/crime-and-justice/report/criminal-law-and-the-administrative-state-the-problem-criminal-regulations

@Henry:
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.

@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… Read more »

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… Read more »

@Richard

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

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 http://mllkeys20112011.wixsite.com/mysite Here is a copy of the current brief I am working on right… Read more »

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?

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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