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Gundy v. United States could signal a major change in the Supreme Court’s separation of powers jurisprudence

Gundy v. United States is not listed in most media accounts of important matters now before the Supreme Court, yet this case could profoundly change how courts intervene to preserve the constitutional separation of powers in the future. Full Commentary


How a Sex Offender’s Case Before the Supreme Court Could Bring Down the Administrative State (June 2)

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  1. Bo

    For The National Law Journal (subscription or registration required), Tony Mauro reports that “[t]he long delay in the court’s decision-making” in Gundy v. United States, which asks whether a provision of the federal sex-offender act violates the nondelegation doctrine, “has been a mystery and a cause for consternation among court-watchers who view the case as a crucial milestone in the effort to shrink the power of federal regulators and bureaucrats.”

    Does anyone have a subscription?

    • TS


      I read it in full w/o issue (e.g. no reg or sub needed) at this link:

      SCOTUS Mystery: Why Is the Gundy Decision Taking So Long? It’s been 247 days since the argument, and the court has yet to issue its opinion as it nears the end of the current term.

      From the article, “It is a thorny case, but the long period of time between argument and decision is rare. Theories abound on why it is taking so long.

      “The first complication is that only eight justices were on the bench during the Oct. 2 argument. Brett Kavanaugh was not sworn in until Oct. 6. But if his absence produced a 4-4 tie, the court would probably have used a familiar tool in such cases: scheduling the case for reargument after the ninth justice arrives. That occurred in Knick v. Township of Scott. It was argued Oct. 3, and then reargued Jan. 16. That case, too, has not been decided.

      Another possibility is that whoever wrote the majority opinion lost the 5-3 majority, leaving the court to decide if the case needs to be reargued. Justice Sonia Sotomayor is likely to be the author of the majority, because she is the only justice who has not written an opinion in a case argued in the October cycle. Another plausible explanation is that the justices were still writing and circulating concurrences and dissents until the last minute. Gaziano predicts the decision will be a “magnum opus” with many pages.

      Whatever the problem is, the mystery will likely be solved soon.

      “I predict that if there’s no decision heading into the last week of June, the chief justice will announce on the last day that it’s being held over for reargument,” Cato’s Shapiro said. “In my view, that wastes a lot of resources and they should just let Kavanaugh participate in the decision making based on his reading of the briefs and argument transcript.”

      By longstanding tradition, new justices do not vote on cases that were argued before they joined the court. But court experts acknowledge that if they wanted to, new justices could participate, because the court at the time of handing down the opinion would include the new justice.

      William Suter, the former clerk of the Supreme Court, told NLJ in 2017, “I know of no statute or rule that would prohibit a new justice from participating in such a case.”

      But he added, “I think the ‘common sense rule’ would be that a new justice would not participate. It would look fishy, especially if the newbie voted with the majority in a 5-4 decision.””

      Good article overall if you can read it in full.

  2. Steveo

    Ok, so it sounds like we will probably either hear something on the 17th or by the 24th. Of all the theories that are out there about Gundy, the two that I think are most plausible are that it’s a 4/4 split, and they’re all talking to try and split somebody into the other camp, or it’s just such an important case in regards to limiting executive power that they want to make both sides (the majority and dissenting opinions) different drafts into well presented final statements.

    Any thoughts on what happens if Gundy wins? Does it put the writing on the wall for states who’ve also used sketchy maneuvers to apply registration laws retroactively? Does it put State laws at odds with Federal laws? What does it do to the International Megan’s Law that was created so late in the game?

    • steve

      Breaking it down even further. For those on the internet years after they pled. Do they come off? Any law passed after the fact are wiped out?

      • Steveo

        @steve : So it’s all about federal law. The state I live in, Texas, does not even comply with SORNA. I’m no lawyer, and it seems that lawyers aren’t talking a lot about what will happen if Gundy wins, but it seems to me that federal law helps shape state law, and though states are sovereign there is a lot of coming together on thought that seems to happen with sex offender laws, particularly with the federal regulation scheme, which the feds offered or withheld money to the states based on their compliance with SORNA. I think its’ also significant that some of the conversation that the judges touched on had to do with who gets covered. In my mind that makes me think that there might be some strong language about how people make plea deals and then in the future loosely defined new laws are created that empower an executive officer to invent further sanctions to apply to them. So in addition to the issue about congress not defining the law enough, there should be language that attacks the ex-post-facto nature of it all. So my opinion is that it will at the very least put the writing on the walls for states to look at in their own retroactively applied regulation schemes, but it seems to me that they might even be out of line with a federal ruling at that point…. Now keep in mind I am just speculating and saying some things that I am thinking….. I might be totally wrong in my understanding of this stuff.

    • CR

      I hate to see anyone pinning hope on the outcome of this case. SCOTUS has already said that registration of sex offenders is regulatory, and thus not ex post facto punishment when applied retroactively. Do you think they will walk back parts of 2003 Smith v Doe with this ruling? I don’t think so.

      They may declare that Congress impermissibly delegated authority to the AG. That won’t stop Congress from enacting any struck down portions of SORNA in a permissible fashion. And if they do, the new law could end up being even worse. I don’t know how, but that seems to be the way SO legislation works.

      • AJ

        Well put. Just as Packingham was a First Amendment case that happened to involve a RC, Gundy is a non-delegation case that happens to involve SORNA. The subject is secondary, at best, to the subject matter. SCOTUS cares little who is being harmed by a law. It cares only whether the law exceeds Constitutional limits.

        That said, I do feel that if SCOTUS rules for Gundy, it will cast a light on the whole RC concept and scheme. Even with a split government, it may open a window of opportunity to introduce a measure of sanity into it all. Unlike in 2003 and a few years hence, there are people (judges, some legislators, more citizens) who can see past the Chicken-Little panic and mania. My hope is that if Congress is forced to give clearer, better guidance to the AG, it will open a conversation in the halls of D.C. and something shifts. Ignoring the mountains of data about RCs that now exist versus in 2003 will be difficult, even for freaks like Chris Smith (especially him, what with NJ’s 21-year study…right in his own backyard, so to speak).

        BTW, if SCOTUS finds for Gundy, the Federal Government still has Chevron Deference. All it would mean is Congress has to give *some* sort of guidance and boundaries, versus “go do whatever you think is right.”

      • TS

        We are all interested in what the outcome is and any possible ripple effects, but speculation at this point is not worth it, IMO. It could really be anything, even something not discussed yet.

        It is interesting to read what the pundits and legal experts have to say about Gundy as well as what those on the bench have to say with closely watched cases still pending opinion. The swath of Gundy could be huge (ahem, Justice Alito thinks so x300K) where SORNA is but one topic swept up in it.

        IML references the 2008 and 2011 Guidelines (these can be seen on the website), so they could be part of changes in the future since the AG issued them as Guidelines, which means anything could happen, for better or worse when it comes to travel notification, exceptions, etc.

        I second what @AJ and @CR said.

  3. Seveo

    @AJ, ok lets roll with that idea that congress has to actually define the extent to which the registration scheme should apply to grandfather in those who’s day in court has already come and gone. They will have to put down in the law, clear language that is very problematic for them. They will have to say something to the effect that “this new law also applies to people who’s day in court was any time before this new law”. I mean we all know why they didn’t’ originally define it and left it to the AG to simply regulate into law is because the mere defining of it makes it more vulnerable. That has to be what the legal teams assigned to help write the law in the first place must have been thinking, right? I think it’s got to be at least some sort of a win for the side of all of us who’ve continually had the deal changed on us to be more and more punitive, more and more invasive, more and more limiting of our liberty. I know I would NEVER have taken the deal offered to me if I had known that they were going to change it to a lifetime as a second class citizen that can never get rid of this scarlet letter, or even move away to escape their perpetual torment of me and my family.

    • CR

      What would make it more problematic for the federal government to clearly define the retroactive application of the law than it has been for the states that have done so? I believe the majority of them have.

    • AJ

      Following up on CR’s post, what would prevent Congress from simply taking the AG’s guidelines, spiffing them up into the proper legalese, and make it an Act? This seems procedurally simple, given every State has pretty much done that. However, I still think that beyond procedure it will be a tougher row to hoe. Just imagine the image of Patti Wetterling testifying before a congressional committee on the uselessness of the registries. Of course she’d be countered by Walsh and Klaas. However Ms. Wetterling will have facts and research on her side, while the two jamokes will only have ranting and raving on in their arsenal.

      Again, if it falls to Congress to have to finalize the rules, I believe it’s a win for us. I do not see a late-night suspension of the rules parlor trick happening this time around.

      • TS

        I’d hope someone would question Mr. Walsh about his underage dating habits back in the day or even how he got here since Adam wasn’t…. You get the point.

        He can stick with selling oversized button flip phones afterwards. His credibility should be zip.

  4. Steveo

    @CR – I’m not super in touch with all of this, so I could be wrong, but I think I recall the way my state did it is that they did a process maneuver where they have a never ending statue of of limitations tied to the crime itself, so they can say that people who commit that crime must register because of that, not that they actually claim it must be applied retroactively. That would be a violation of ex-post-facto laws. Basically they have to find slimy and dishonest ways to get their agenda done. Most of us who have to register were never charged federally, so it seems like they would have to do something different.
    I sort of wish that someone smarter than me about all of this would say more, but perhaps I just don’t know what I’m talking about and the naysayers are all right that it’s all useless and nothing good will come of it.

    • CR


      You said above that you are in Texas, so let’s just look at the Texas registration statute as an example. It is in Chapter 62 of the Code of Criminal Procedure. It makes its retroactive application plain from the very beginning of the chapter:

      Art. 62.002. APPLICABILITY OF CHAPTER. (a) This chapter applies only to a reportable conviction or adjudication occurring on or after September 1, 1970.

      The original Texas registration law dates back to the early 1990s. When it first passed, it wasn’t retroactive, nor did it include deferred adjudications. Those changes came later, I believe the inclusion of deferred adjudication in the late ’90s, and retroactive starting with the current version, as best as I recall. The current version of the law dates back to 2005, and has had that applicability statement in it from its inception.

      I have not read the registration statutes of most states, but of the few that I have read, they are equally up front about the retroactive application of the law.

      Including such language hasn’t been problematic for the states, so there is no reason to think it would be problematic for the federal government to do the same thing. The key reason is that registration laws are deemed to be civil laws of a regulatory nature, not criminal laws. The prohibition on ex post facto laws is said, by SCOTUS many years ago, to be applicable in the criminal law context only. Even though that is not what the Constitution actually says…

      • Chris f (@CR)

        Funny thing about Texas…or not funny…is that they blatantly made it retroactive even though the Texas Constitution forbids both ex post facto and retroactive civil laws. Smith V doe doesnt even matter. They can’t do any retro laws and did it anyway.

        I believe it survived challenges by citing some irrelivant retroactive cases dealing with water rights and there being some extreme cases where retro laws must occur for the benefit of the survival of the state. Definately shouldnt have been applicable to ignoring netotiated plea deals and set expectations administered by a judge.

        • CR

          There are one or two recent Texas cases that were challenging the plea aspect. I don’t know their current status.

      • AJ

        “The prohibition on ex post facto laws is said, by SCOTUS many years ago, to be applicable in the criminal law context only.”
        When @CR says “many years ago”, he means in 1798…as in 9 years after that old rag the Constitution was signed.

  5. Steveo

    Thanks CR and AJ… CR, I think that case you are talking about is scheduled for October. My trial was in January of 1994, so I’m thinking I will qualify to be removed if they win, or I was thinking if they win that I will be able to go to court and have a lawyer cite their case I guess.

  6. Bobby

    So everyone, just curious on what people think. Do you think we will finally get a decision I. Gundy come Monday the 17th, or do you think SCOTUS will make us wait until the 24th?. Again just curious on what people think about it.

    • Tuna

      I think they may punt until next term, and re-argue.

    • CR

      I think the 24th, but no matter when it is, I would not be surprised if they decide to rehear the case in the fall with a full court. Only 8 justices heard the case last October.

      If it gets rescheduled for oral arguments in the fall, then I expect we won’t get a decision until this time next year.

  7. TS

    Patience everyone…We’re all frustrated with this pace but IIRC, it was discussed here this could be one case that goes to the term’s end before publishing.

    • AJ

      Yes, Gundy could be the Opinion tossed on the table as the black robes run out of the room. 🙂 “Here’s our last homework, teacher, see you in October!”

      I’d have to go back to see what sorts of cases remain, but typically SCOTUS doesn’t like to issue too many “serious” or “weighty” decisions together. So Gundy will probably come out along with a handful of cases with narrower effect. Given the weight of this decision–possibly shifting away from FDR’s expansions–I would not be at all surprised for it to come out on the last day of the Term. Again, if the rumor that Sotomayor is the author is true, it will be an early release on whatever day it comes out (Opinions are read in order of reverse seniority). It still strikes me as odd that such a junior Associate would get the task; I don’t see the Chief or a senior Associate shirking the authorship of such a landmark case.

  8. Bobby


    So I was looking all over scotus website and scotusblog, and didn’t find anything on Gundy, so I’m guessing we will now have to wait until next Monday to hear scotus’s out com concerning Gundy?

    I know a lot of you out there know way more then I do about this stuff and how it works. that’s why I am asking any new or current news or updates on Gundy. When it comes to this stuff i’m as dumb as a box of rocks. LOL Thanks in advance.

    • CR

      This morning SCOTUS added another opinion day for this week, Thursday the 20th. They disposed of four cases today, and still have 20 cases to go for this term. I would expect two or three opinion days next week as well. Gundy could come on any of them.

      • TS

        Thanks @CR

        That supercedes my just submitted reply before seeing your updated opinion days update.

      • E

        I sure wish federal courts of appeal had the same “end of session” due dates as USSC. @AJ or others, do you know why USSC has a June deadline but appeals courts (like the one sitting on Colorado’s Millard Case) can take forever??

        • AJ

          Courtesy of CockleLegalBriefs (
          For the first 101 years of the Court’s existence, Justices were required to spend most of their time traveling around the country on horseback or in carriages to sit as circuit judges – known as “circuit riding.” Without circuit riding, it was said, Supreme Court Justices would be cut off from the political, cultural, and legal life of the rest of the nation.
          Hmmm…seems the fears have come true. They ARE cut off from the lives of the rest of the nation!

          The practice continued in the modern, though pre-air-conditioning, age when DC would empty out for the summer. Anymore it’s probably just a convenient way for them all to be able to take their vacation time (keep your eyes peeled for J. Thomas and the missus RVing around the country and at Walmart parking lots! Yes, really.) and/or hit the book and/or speaking circuits. Given there are no other Justices available to sit in their stead, it’s pretty much an all or none operation. Meanwhile Federal CCoAs and the District Courts have judges aplenty and they can also block out segments of their calendars for their own individual vacations and such. As these courts say, they are always open, meaning always in session. As such they have little need to push for an end-of-term deadline.

    • TS


      Unless you see something today at scotusblog, next Monday will be the day.

  9. CR

    The decision on Gundy was released today, with Kagan writing for a plurality of the eight-member court. The second circuit’s decision was affirmed. Congress did not violate the non-delegation doctrine by telling the attorney general to decide whether and how to apply SORNA to people who committed an offense before the effective date of the act.

    We are indeed second class citizens, no matter the protestations to the contrary uttered by judges and legislators who insist on viewing registration laws as merely regulatory.

    It is confirmed that we can never be free again, never fully rejoin society again, after committing a sexual offense. Any relief we manage to obtain during our lives can, at any future time, be wiped out by some new act of the congress applied retroactively, or worse yet, by the attorney general making up laws as he/she sees fit, based upon the most general and non-specific delegation by congress.

  10. CR

    Gorsuch, in the opening paragraph of his dissent, points out the problem for the rest of America, that is, for all other people residing in this country:

    “The Constitution promises that only the people’s elected representatives may adopt new federal laws restricting liberty. Yet the statute before us scrambles that design. It purports to endow the nation’s chief
    prosecutor with the power to write his own criminal code governing the lives of a half-million citizens. Yes, those affected are some of the least popular among us. But if a single executive branch official can write laws restricting the liberty of this group of persons, what does that mean for the next?”

    If everyone understood that, perhaps a new tea party would ensue.

  11. CR

    Even if SCOTUS had decided that Congress overstepped its authority through its delegation to the AG in this particular case, that would not have brought us relief because it doesn’t address the real issue, the error of SCOTUS in 1798 in Calder v Bull.

    Well, I’ve always been cynical about this particular case, and I have to say I’m not particularly surprised by the decision. Nor am I surprised that Alito, even though he indicated he would be willing to reconsider the approach of the past 84 years with respect to non-delegation had there been majority consensus, nevertheless voted to affirm, concurring in the judgement. He could have withheld that, but it would be out of character for Alito to go against the desires of the other branches of government when it comes to sticking it to “criminals” in general, and “sex offenders” in particular, a class he appears to hold in great disdain. (Not that he differs in that regard from most people.)

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