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Sex offender registry sparks Supreme Court debate over congressional powers

Supreme Court justices on Tuesday grappled with how much power Congress can pass on to federal agencies in a case that could change the way Capitol Hill legislates. Full Article

Transcript of oral argument

Join the discussion

  1. Don’t tread on me

    Now this is encouraging….

  2. ioshiames

    I don’t know if anyone read through all of this, but this is a great legal read to get some insight from the justices. It is very clear that if the justices decide that pre-act offenders do not have to register and that SORNA is unconstitutional (due to the non-delegation rules) then the federal umbrella of SORNA is gone. Yes, that is correct. SORNA is gone. If funding is removed, the states will have far less motivation to continue the scheme. Huge case here (although I would never have thought it would have been brought down by a non-delegation violation).

    • Tired of this

      I really want to be optimistic about this, and I sort of am, but isn’t there a chance that Congress would simply rewrite a new version of SORNA which does not violate nondelegation?

      • AJ

        @Tired of this:
        “isn’t there a chance that Congress would simply rewrite a new version of SORNA which does not violate nondelegation?”
        —–
        Absolutely, though they wouldn’t need to rewrite the whole thing. Congress could simply add language–even hidden in some other Bill–granting the AG the authority. That this is to do with SORNA really doesn’t matter a whole lot to SCOTUS. To them, the only issue is the issue of an unconstitutional delegation from Legislative to Executive.

        IMO, any opening of the SORNA jar will bring about much more push back and debate than previously. I say that purely on my “feel” for how things have gone, nothing else. I foresee many academics and citizens–and maybe even some media types–chiming in about how f’d up these laws are. There are too many studies, including governmental ones, showing it doesn’t work, and too many people waiting to jump down their throats about it. Snyder and Muniz will almost assuredly enter the conversation as well.

        • tim

          @Congree needs to admit the people’s intent! RETRIBUTION! PAYING AGAIN! behind the electronic lists and databases.

    • AJ

      @ioshiames:
      “if the justices decide that pre-act offenders do not have to register and that SORNA is unconstitutional (due to the non-delegation rules) then the federal umbrella of SORNA is gone.”
      —–
      Incorrect. What would be gone would be the AG’s guidelines that apply to pre-Act individuals. Also, since SCOTUS presumes severability, even if unmentioned by Congress, the rest of SORNA will stand. From Regan v. Time, Inc., 468 US 641, 653 (1983): “Whether an unconstitutional provision is severable from the remainder of a statute is largely a question of legislative intent, but the presumption is in favor of severability.” From Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686 (1987): “In the absence of a severability clause, however, Congress’ silence is just that—silence—and does not raise a presumption against severability.”

    • American Detained in America

      One of the flaws in your statement is that there have been hundreds of thousands of us who were convicted after the act passed.

  3. PK

    I could hear the government argue:

    “We can’t just let 100,000 Sex Offenders loose on the streets”.
    “Because we need to “”control”” them”.

    • AJ

      @PK:
      “I could hear the government argue…”
      —–
      No need to wait to hear it, you can read it on pp. 58-59 of the transcript:

      “If Petitioner prevails…there will be no federal duty to register in the 32 states that haven’t substantially implemented. As a matter of federal law, more than half the country will be a sex offender registration-free zone. Even in the remaining 18 states, they will not be picking up new pre-Act offenders who come into contact with the justice system because there will no longer be a duty to register.”
      “All told, our best estimate is that we’ll lose a couple of thousand people out of the registries every month, and that’s not even including tribal areas, where we wouldn’t be able to get at non-tribal members. And, of course, some substantial portion of the 4,000 convictions at issue would be in — in — in jeopardy of being vacated either on direct or collateral review.”

      Boo hoo! How that is a valid argument about why a law should stand, I have no idea. “But your Honors, if you hold the AG’s actions as unconstitutional, we’ll have to stop violating the Constitution regarding pre-Act citizens…and even worse, those improperly charged will have charges dismissed!”

      • AO

        @AJ – more practically, I see it as how many of 100k+ people who have apparently remained sex crime free for 30+ years suddenly become a random danger because legislature/AG decided so? I’d like to think facts still somewhat matter.

      • TS

        @AJ

        Is this where we can insert a comment on Blackstone’s commentaries and USG workings? It may be appropriate.

  4. CR

    @ioshiames, yes, there is commentary and discussion of the oral arguments in another current thread about this case here:

    https://all4consolaws.org/2018/09/scotus-justices-face-nondelegation-challenge-to-federal-sex-offender-registration-law/

    My opinion is that if SORNA is struck down in full or in part due because of the delegation issue, Congress can and probably will simply reenact it without delegating authority to the AG to write the laws. They can simply incorporate the regulations as implemented by the AG. That will serve to make it presumptively constitutional again.

    Depending on how the question is resolved, Congress could also reenact SORNA with additional guidance to the AG, providing the “intelligible principle” needed to satisfy the courts.

    Either way, SORNA can be reenacted rather quickly if Congress desires. So I don’t think there will be any lasting positive impact for registered citizens, since SORNA, if killed, is not likely to stay dead.

    Where this could be big is in effect on countless other laws that were created by Congressional delegation.

    • AnotherAnon

      @CR, you are probably right, but there could be complications for the government. Would re-enactment start a new enactment date in terms of ex post facto? This could matter if any court finds SORNA to have evolved into punishment, like the new NV law so obviously did. So if SCOTUS strikes down SORNA on delegation grounds maybe a new date would apply, and anyone convicted before that new date could argue ex post fact before that date — sometime in 2018 or whenever SCOTUS publishes its opinion and congress re-enacts. A new Smith v Doe challenge like the Alaska one the court approved might not survive given how the laws have evolved into more blatant punishment. Indeed, I would suspect a good argument with strong evidence would cause an injunction. Interesting question: could such a challenge to the new law be coupled with state law like NV’s? IOW, could SORNA be blamed for NV’s new law? If so, is NV’s new law punishment compared to the Smith v Doe Alaska decision?

      Smith v Doe
      https://supreme.justia.com/cases/federal/us/538/84/

      Alaska’s Sex Offender Registration Law is Punitive, Prohibiting Ex Post Facto Application

      https://www.prisonlegalnews.org/news/2015/jan/12/alaskas-sex-offender-registration-law-punitive-prohibiting-ex-post-facto-application/

      Ex Post Facto

      https://www.prisonlegalnews.org/search/?selected_facets=tags:Ex%20Post%20Facto

      • CR

        @AnotherAnon, thank you for the link to the Alaska Supreme Court decision on the precedential applicability of a previous ruling of the court on a new ex post facto ASORA question in light of the courts own change of Appellate rules that called that precendentiality into question. Interestingly, the state contended that the court’s amendment of an Appellate rule making the decision in a two-to-one vote of the court non-precedential when only three of the five justices participated in the decision, barred the previous 2-1 ruling by the same court that ASORA was punitive from being precedential in the new case. But they ruled that the change in the Appellate rules were not retroactive, so the precedential effect of the previous 2-1 ruling was preserved.

        Wow, you have to read my summary a couple of times to make sense of it. The article at the link you posted is more clear, but in my defense, it took them a lot more words to manage that. 🙂

        That is a good example of how changes in laws or court procedures could affect future cases or lawmaking. In that case it didn’t change the outcome in the way the state wanted, but one could see how it might. So yes, I would agree that evolving laws can complicate the landscape for the government in a theoretical case where they might want to reenact a law that was previously stricken.

        In this case, though, I think the answer to your question about whether re-enactment would set a new date in terms of ex post facto is no, it would not. Not for now, at least. As of now, nothing has changed at the federal SCOTUS level from what it said in Smith v Doe. While cases like Millard in CO might bring some change eventually, there is currently no legal barrier to re-enacting SORNA exactly as it currently stands, simply by avoiding the delegation of rule-making to the AG. If, some day, the simple act of registering sex offenders is viewed as imposing punishment, then yes, the date of re-enactment would make a difference.

        Some have suggested that there might not be the political will today to re-enact any stricken parts of SORNA verbatim, but I don’t know about that. Almost anything can be passed via a chicken-shit voice vote over the holiday season when the Congressional population in DC is at an ebb.

  5. TS

    @PK

    NO! We cannot have that!! What would this country come to?!

    Heck, the USG gave 4,000 (I think w/o referring to the transcript again to confirm) as their scary number. It sounds like MO in their smaller number yet of those who are unaccounted for and the immediate need to find them for the fear of them being free without LE knowing their whereabouts.

    On the other hand, the 200K-300K number (# of regulations) given out by Justice Breyer in a scare tactic of his own, when noting a brief, that may need to be addressed if Gundy’s case overturns the appellate case ruling. OMG! The work load that may come into SCOTUS’ inbox with petitions to consider on this very topic (lest be heard) OR even worse yet, the work Congress would need to do to address this very topic when there are more important things to consider daily such as National Taco Day proclamations!

    • AJ

      @TS:
      Yeah, and I thought Breyer came across as a total jerk with those comments.

      Hey Justice Breyer, do you know why there are 300,000 of them? Because SCOTUS allowed the floodgates to be opened! Don’t start crying about what you created…and which you have had ample opportunity to change. Besides, if SCOTUS properly delineates what’s good and bad, deciding those 300,000 cases will fall to the every court but yours. 300,000 is what happens when you let government run amok from the Constitution. But we wouldn’t want to trouble Congress with figuring out legislation, would we?

  6. TS

    You all will find this of interest and think ACSOL could make this article a post of its own:

    How Justices Ruth Bader Ginsburg, Neil Gorsuch are on the same side of a key SCOTUS case

    https://www.washingtontimes.com/news/2018/oct/2/ruth-bader-ginsburg-neil-gorsuch-wary-sex-offender/

    Added Justice Ginsburg: “There’s no notice to these people.”

    Madam Justice, that has been a problem for years for the citizenry of this country regardless of what law is passed. I will not even give the Fed Register the credit some folks would like to in how it “notifies” the public of new Fed Law. Posting, hope it is read and shared is not notification (neither is the fine print in the back of the newspaper with legal postings IMO). I have never heard of a State Register that posts new laws in the same fashion as the Fed Register.

    The public never knows what they can and cannot do on a given day WRT the law because of the lack of notification to them unless it has the legislative stamp of “I need votes and this is what I did for you, my constituents!” or maybe media attention. Combine that with LE who does not have to enforce the law correctly, as given permission by SCOTUS previously, or even tell them of the new law (except with the occasional grace period before full implementation), the citizenry should be very afraid to leave their domicile for the fear of breaking some law they were unaware of in the first place.

    While the registrant is told continually to be aware of travel laws, e.g. of other places and passports, and do their respective research before departing, even the USG cannot get it correct when it comes to ensuring the registrant who does do their research and tries to be in full compliance can be in full compliance. This, Madam Justice, is the flooding of the country of laws (200K-300K perhaps?) that are not fully researched, vetted, understood, written, or passed for proper implementation. Leaving it for one Congressionally confirmed and authorized person to decide what legally can happen and to who is no better than King George doing the same before this country decided it had had enough and showed its collective middle finger in return.

    • A

      @TS
      Regarding the link you posted to the Washington article written……..in reading this I find this comment interesting.
      “SORNA was enacted so sex offenders could be tracked once they’re released back into the community.”

      There are keys words here that I clearly feel implies for lack of a better term that SORNA shouldn’t be applied to pre-enactment. It says “could to tracked once they’re released back into community”. Well for those with convictions from 1956 to say 2000 or later but before 2006 have/had already been released, completed they time/sentence/probation etc.

      Does anyone read it the same?

      • AO

        @A – Don’t put a lot of stock into how authors of articles word, define, or state anything involving the registration (and likely many other legal matters). More often than not, what they write is fairly incorrect from reality. Even more so, when it comes to law, laymen definitions of words and phrases are not nearly the same. For example, you can be easily legally be branded a “sexual violent predatory” when your crime involved no contact with the victim. Also, the registration is just about universally seen as punitive by both society and politicians, while legally it’s not punitive but regulatory. This a huge legal distinction and the main reason why the registry continues exit and apply to people who have completed their sentence.

        • TS

          @A

          I concur with @AO here.

          As for pre-existing legal conditions, e.g back to 1956, it is ex post facto in my mind, period and Congress has dropped the ball, yet again, on their watch to define what needs to be defined. If it was not in law then, then it cannot go back to sweep up those it would have had it been law once it becomes law afterward.

          At the same time, I go back to my King George analogy from earlier today about deciding who and what is wrong with a pen swipe while being the judge, jury, and executioner in the name of the USAG by the power vested in me from the (lacking) US Congress through weak Fed Law.

          @AJ – Yes, yes it is so apropos to see such a pairing. I hope Kagan, Sotomayer, and Thomas join them. I have no hope for Alito, Breyer, and Roberts (who could see his registrant legacy severely curtailed until Congress updates the law into a new form but maybe not as strong).

    • AJ

      How appropriate that the man who filled Scalia’s seat is joined with the only other Justice who dissented in Reynolds. Scalia and Ginsburg disliked Reynolds then, Gorsuch and Ginsburg dislike AG Gundy now.

  7. Need2know

    Wouldn’t this potentially have an impact on IML too, both deferring reporting requirements to AG and retroactive impact of those convicted prior to legislation passing?

  8. Need2know

    Interesting article in Slate about this topic – seems promising. https://slate.com/news-and-politics/2018/10/neil-gorsuch-sex-offender-registry-supreme-court.html

    • Notorious DIK (said to be Kennerly)

      The article is, as usual from the left and, in this instance, MARK JOSEPH STERN, confusing concepts of “liberal” and “conservative” and “individual liberty” and “authoritarianism.” So they end up professing themselves consternated (although not “surprised”) that Gorsuch, who they view as “idiosyncratic,” (please!) would agree with the equally consternated/confused ACLU in some matters but not in others. Actually, he’s the one who is consistent, they and the ACLU are not. “The catch is that Gorsuch’s idiosyncratic views on federal power and individual liberty, while helpful to progressive causes in cases like Gundy, pose a huge threat to business and environmental regulations that liberals support. Civil libertarians who seek Gorsuch’s vote risk fueling his crusade against the “administrative state.” Well, that’s not really how it works now, is it? There is no mechanism for “seeking a Justice’s vote” unless you count amicus briefs or are the litigant. If there were we’d be lobbying them relentlessly. So that seems to be a pretty pointless concern. Perhaps they should do what the rest of us do and be gratified when a Justice lands on the side of liberty and angry when he or she does not. Still, this article rightly excoriates the law and I am grateful when the “progressives” manage to get an issue right – especially this one. The conservatives are total crap on this issue. Stern offers this assessment which, if proven correct, will make me happy to congratulate him on his perspicacity/crystal ball: “…judging by the other justices’ skepticism of SORNA’s delegation, his view will carry the day in a lopsided ruling against the government.” Although he also claims that the groups who filed the amicus briefs were “conservative.” No, they’re almost all “libertarian.” But progressives are unable to discern or acknowledge the difference because to do so would be to reveal their own tortured confusion. Finally, and strangely satisfyingly, there’s this: “If he [Gorsuch] writes the opinion in Gundy, expect a similar time bomb that could blow up the administrative state. Gorsuch’s libertarian streak may prove helpful to progressive groups like the ACLU. But when they court his vote, they’re playing with fire.” I would contribute as much dynamite, matches and flammable material as is necessary to blowing-up the administrative state. I’d hold a post-Reichstag party to celebrate such an event. But then, we’d still have to kill Hitler. That essential duty got overlooked the last time.

  9. Gralphr

    If they ruled in Gundy’s favor and said it is Ex Post Facto and thus illegal, would that also mean it would make the passport issue illegal since its a law amended to SORNA and the fact its a new law they are forcing people convicted decades ago to follow? I’d think if they thought SORNA was Ex post Facto and punishment, then everything that associated with it would be void as well. Its nice to see some Judges understand forcing people to register due to convictions years or decades before SORNA is nothing more than punishment and against the constitution. I hope they also really bring home the point the registry itself is punishment in that it does NOT allow one to go on with their life and that allowing SORNA to stand means accepting the government can make up ex post facto laws on a whim and make everyone follow them or be punished no matter how long ago the conviction was……….

    • EJ

      Supreme Court Oral argument PDF on their own web site on page 42 of 70, line #16. The Judge refers to registration as a punishent. Using the word “penalize” in reference to SORNA. They know it is.

      • TS

        Yes, Justice Kagan did use the word “penalize” on pg 42/70 @line 16.

        Penalize:
        – subject to some form of punishment.
        – (in various sports) punish (a player or team) for a breach of the rules by awarding an advantage to the opposition.
        – put in an unfavorable position or at an unfair disadvantage (would this be the definition she would default to if asked about what she meant?)
        synonyms: punish, discipline, inflict a penalty on

        I think you are right though, they realize it is a punishment, but try not to say anything about it.

  10. Illinois Contact

    First thought is about the “effective” date. Which applies, the original SORNA passage July 27, 2006, or the AG rule effective on February 28, 2007? If you were convicted in December, 2006, for example, is that “before?”

    “The Attorney General published this Rule to specify that SORNA applies retroactively to all sex offenders, including sex offenders convicted of the offense for which registration is required before the enactment of SORNA.”

    “Effective Date of Interim Rule: February 28, 2007 | Effective Date of Final Rule: January 28, 2011”

    But, more importantly, it seems to me, is that I was convicted in Illinois under Illinois law, so what effect would striking down SORNA a Federal statute have on me (and most people who have state convictions)?

    EXCEPT for the IML, which as I read it is “part” of SORNA. Would it go down if Gundy wins, so it could not be applied retroactively, which would affect almost everyone now on the registry?

  11. matthew

    https://www.youtube.com/watch?v=T-MsEGQqGbA. Admin, this is about the hearing on October 2nd with Gundy vs. United States. Around the 30 min mark, one of the justices asked about what happens if they are a great citizen after so many years. She made some great comments in our favor.

  12. TS

    Interesting article here regarding this case I thought you all would like to read:

    Gorsuch and Sotomayor Fault Congress for Giving ‘a Blank Check to the Attorney General’

    https://reason.com/blog/2018/10/09/gorsuch-and-sotomayor-fault-congress-for

    “It remains to be seen whether or not a majority of the Supreme Court will see this case in the same light as Gorsuch and Sotomayor seem to see it. If the Court does, it will be a significant win both for criminal justice reformers and for critics of executive overreach.”

    June 2019 expected decision from the article.

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