Argument Preview: Congress enacted the Sex Offender Registration and Notification Act. One provision of SORNA created a requirementthat a convicted sex offender register with every jurisdiction in which he resides, works or studies, as well as in the jurisdiction in which he was convicted. Another part of SORNA, its criminal enforcement provision, made it a crime for a convicted sex offender subject to the registration requirement to fail to register or to keep his registration information updated if he travels across state lines. But what about sex offenders convicted before SORNA’s enactment? Full Article
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Gundy’s petition raised four questions, but the Supreme Court chose to take up just one of them, a question on which the circuits were not split and which the justices had repeatedly declined to hear in the past: “Whether SORNA’s delegation of authority to the Attorney General to issue regulations under [34 U.S.C. 20913(d)] violates the nondelegation doctrine.”
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I find this sentence from the article to be especially intriguing. To me it sounds like SCOTUS is ready to draw a bright line on non-delegation. Being a fan of the Constitution as written–and not at all a fan of “intelligible priniciple” or Chevron Deference–I would love to see SCOTUS declare this an unconstitutional delegation by Congress to the Executive. Gee Congress, you might actually have to go back to writing laws instead of passing them off to the Executive and saying, “here, you figure it out.”
And then, of course there’s the Government’s bogeyman/fear mongering argument: The government notes that since SORNA was enacted, 4,000 sex offenders have been convicted of “federal sex-offender registry violations,” and “many of those offenders who failed to register would go free” if the court were to invalidate the delegation in SORNA.”
Heaven forbid someone be allowed to go free! The horrors of such, especially for such a heinous crime as FTR and it’s year+ sentence.
Fans of the Constitution should be cheering for Gundy to prevail. We may actually start to get our government back on track with such an outcome.
Maybe I missed it, but is this going to SCOTUS right now?
As someone federally convicted pre-SORNA and living in a state that recently became AWA-compliant, a favorable outcome would seem to benefit me greatly. I’m guessing I’d end up having to register under whatever law was in place in my state at the time of my 2004 conviction.
“One provision of SORNA created a requirementthat a convicted sex offender register with every jurisdiction in which he resides, works or studies, as well as in the jurisdiction in which he was convicted.” 🤔 This seems inaccurate: we are required to register in BOTH our current place of residence AND the State/jurisdiction in which convicted?? I believe we are only required to register where we currently reside…… otherwise, Florida (conviction jurisdiction) would have a FTR warrant for me.
Well
I’ve read the article. The law is a mess! For myself, many of the laws are very confusing. You would literally need to be a lawyer to know who and what applies to who? I register annually and no one has ever mentioned my requirements for International Travel? So, I truly would have no idea many of these laws existed unless this website exhausted? For the layman, it’s all rather confusing. The laws need to change and I hope the new Tier Law changes things!
Oral Arguments transcripts for Gundy can be found here on Oct 2, day of the arguments (This will lead you to the 2018 term when they get it posted): https://www.supremecourt.gov/oral_arguments/argument_transcript/2017
Oral Arguments recording for Gundy can be found here at the end of the week, Friday, Oct 5, after conference: https://www.supremecourt.gov/oral_arguments/argument_audio/2018#list
Here is a Federalist Society analysis of the case. Interesting read.
https://fedsoc.org/commentary/publications/party-like-it-s-1935-gundy-v-united-states-and-the-future-of-the-non-delegation-doctrine
Intriguing. Every time I log onto this site, I read some very intelligent and non intelligent comments. I’ve read comments, attachments, people giving others legal advice and so on. Yet, who really cares about the legal briefs or opinions given by judges/lawyers etc? Does it really matter? As noted, I would be doing anything and everything I could do to get my charge reduced to a misdemeanor/expunged to get my case reduced and so on? We can talk/give opinions and etc, but unless we somehow get involved, it’s simply a waste of time! The recent new law enacted in Nevada (increasing the number of registration requirements per year) is disturbing? Why? This will clearly incur additional costs? Arrests? Probation/Parole Violations? Sham? Might they now charge to register? I was initially under the impression Nevada was more lenient, yet this law seems to target child related offenses?
USA, for one of the rare moments I hear ya. That is exactly right, people need to get to the courthouse and bombard the court with petitions against this new BS. They need to file against every thing but especially every time they up the ante like this. Absolutely arbitrary with no public benefit.. File File File that is my motto…Also like I stated who cares if the suits just get dismissed, even better that way no amateurs get to go far enough to set bad precedent, Sure as hell would cost the state millions and create chaos in the courts and I bet would eventually get major publicity as well. All those things we all want right???? Well go online copy paste and file…Easiest way to cost them money and time without provoking LE really. Be that itch that they just cannot reach.
Here is a link to today’s oral argument. Gorsuch is solidly on the “our” side. The other justices are a bit hard to read where they sit on this issue.
https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/17-6086_9ol1.pdf
I hope I’m 100% incorrect but after swallowing aspirin and achieving a pain in my neck and a headache reading through the arguments and I’m far from a legal schooler my take on the constitutionality of this is that the constitution is vague in this area that subjects this area of the constitution to be very subjective thus i see a 6 – 2 vote and nothing changes.
JUSTICE GINSBURG: “So he — he has to know what the Attorney General’s regulation is?
There’s no notice given to these people. They can be charged with — with failure to register, even though nobody — no one ever gave them notice that they had to register?” Page 40, Line 9.
Thabk you, RBG! We are supposed to somehiw, magically, be aware of every new requirement and restriction …. and are held responsible for any gailure or infraction…. as if we are omniscient beings!! 😡 That “Well, of course, they’ll just know” attitude has always pissed me off!!!
Man this case is stupid waste of tax payers money and valuable resources on both sides. I like the feeling I get out of the justices comments and such but the foundation of this case is just a statutory language issue in that the Feds did not specifically tell the AG to apply the federal law retro-actively. I did not even bother reading the entire thing but that is the opinion that I am assuming is going on from some of the comments on here. Has no real meaning for state registries, and all the legislature has to do is amend the language or whatever they do. like I stated before these Justices are going to be pissed off once they get a case in front of them with the fact that the solicitor general lied to them, and I think they will find it hard to believe that is was inadvertently as well. Man I hope my case makes it there, any attorney makes it there and we will be burnt for years or decades to come because they will not argue correctly. I know it, or they will be compensated or intimidated in a variety of ways to not bring good arguments and to throw the case.
Is this even going to work? I mean congress gives the states incredible leeway in how they can apply regulations all the time, right? I guess I am going to have to read the docs.
Did anyone notice on page 55 that the government’s attorney referred to registrants as “these people”? That is the same language used during the Civil Rights era to refer to African Americans. The purpose for using the term “these people” is that it identifies a group of people as “other” than those in the mainstream and therefore acceptable targets for shame and punishment.
My favorite passage in this oral argument comes from Gundy’s attorney who says on page 62 that “This is not civil rule-making. This is the retroactive application of criminal law penalties that affect individual liberty interests in the most profound way.” She speaks the truth!
I found this part interesting as well.
So both comprehensiveness as moderated by some flexibility — some — some feasibility constraint seems in the statute “as long as you’re taking the statute as a whole.”
This is argued in my case and is an important statement as it strengthens AJ’s and my argument.
The 6th Circuit, being similarly bound by Smith, conducted de novo review and considered the cumulative effect of SORA, rather than separately assessing each disability and burden and then finding it inconsequential.
Another words, taking the statute as a whole. Including all aspects, whether embedded in the statute or not.
Also, that is a very perceptive acknowledgement that Janice has made, “these people” is absolutely discriminatory and has always been used to justify the mistreatment of a second class citizenry.
I’ve read the SCOTUS transcript…and here is my take on all this.
Both sides argued very well and were prepared. The only exception to that was at the end of the government attorney’s time when he went on about how a decision favoring Gundy would let loose numerouse sex offenders and exaggerated about sex offender safe zones comprising of numerous states. That was complete BS and mostly addressed in the following rebuttal about how states control over who is on or not is not affected at all by a decision here. Otherwise, the government attorney did a good job explaining how the intent of Congress to protect the public from as many sex offenders as feasibly possible and practical is just what the AG did with the rules it came up with regarding retroactive affect.
My belief is that Gundy will lose, but there will be a dissent of 2 or 3 Justices including Goresuch, that only serves a purpose of slapping the legislatures hand and send a message that they need to be more specific in the future when a person’s liberty is at stake.
At most, perhaps we can hope for some language in the majority and/or dissenting opinion that the real challenge to the retroactive application of the sex offender registry needs to be fought under other Constitutional provisions such as Due Process, Bill of Attainder, or cruel and unusual punishment. We have had the benefit in may other cases regarding sex offender laws such as Smith V Doe, Connecticut DPS V Doe, and Packingham where the Justices gave pretty clear direction. Someday, I hope someone can make use of all those nuggets of wisdom and get a proper case to SCOTUS.
Mike R’s Pro Se case actually does a good job of that, but we have even more nuggets of wisdom since his filing to include in future cases. Hopefully we get even more here.
Janice makes a good point about “these people”. That’s why we won’t make progress until Bill of Attainder is properly attacked and the entire scheme exposed as based on false fears and the problem that occurs when a politically powerless and hated defined class of people become nothing but an easy way for politicians to keep putting feathers in their caps with the continued abuse of their power and influence manipulating an uneducated majority of voters. To think that occurred to gays, Japanese, Communists, and blacks but hasn’t or isn’t occurring to sex offenders is just being plain ignorant. Society will always rally against the perceived boogy man of the time with irrational but popular persecution.
I was just listening to the oral arguments in Gunday (for a second time). It is so aggravating that they are going back and forth on stuff like this when the bottom line is that “these people” – as we are repeatedly referreed to – have an extremely low recidivism rate!! And yet “those people” in government are wasting all of this judicial time and legislative time on restrictions, retroactivity, which sections of the statute might apply to which ex-offenders, etc.
In light of the incredibly low recidivism rate, it is absolute madness and Incredibly frustrating to be wasting all of this time on this ridiculous SORNA!
⭐⭐⭐ VERY USEFUL! ⭐⭐⭐
Here’s a great site for hearing (and seeing*) the Gundy oral arguments:
https://apps.oyez.org/player/#/roberts9/oral_argument_audio/24617
*The photo off the SCOTUS Justices at the top of the website will highlight whichever Justice is speaking/asking the question.
“Jeffrey B. Wall
I think, as — as long as it’s done the things it did here, it’s created the crime, it’s defined the elements — ”
congress created the crime hummmm
SCOTUS is hearing arguments today in an EPA case concerning delegation of authority. Maybe they won’t be so squeamish or cowardly as they were with the Gundy case. 🙄