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

___________ was out on supervised release in 2004 from a 1996 crack distribution conviction when he met an 11-year-old girl. He served her cocaine and raped her. As soon as Monday, the Supreme Court will rule on his fate.

While court-watchers have been focused on other headline issues the court may decide this term—including cases on abortion, citizenship questions on the Census, and partisan gerrymandering—the ______case could mark a watershed of its own. At issue isn’t the lurid crime itself, but just how much power Congress can delegate to the executive branch. Full Article

Join the discussion

  1. Tammy Smith

    Bout ….Damn Time !

  2. Illinois Contact

    This is a potentially momentous decision for us. But, in the typical political context of rubber stamping anything to punish sex offenders, don’t you think Congress could just enact as law the Attorney General’s regulations, and that would make it legal. I have found the text of the Adam Walsh, but where is the Attorney General’s additional regulations that are at the heart of this case?

    • Steveo

      @Illinois Contact – I’m no lawyer, but I think they’ve been hiding behind vague law, because the more the define it, the more vulnerable it becomes, because it’s bad law, it has to be officially defined as being ex-post-facto coverage, and so I think it sets up real problems for congress.

    • AJ

      @Illinois Contact:
      “where is the Attorney General’s additional regulations that are at the heart of this case?”
      —–
      Federal Register / Vol. 76, No. 7 / Tuesday, January 11, 2011 / Pages 1630-1640

    • TS

      @IL Contact

      In addition to @AJ posting of the placement to the 2011 AG Guidelines, here is a link to the guidelines: https://www.smart.gov/guidelines.htm

      In reply to the rubber stamp of the current guidelines, yes, that could happen and has been discussed here before. However, it would take a bit more effort, IMO, given the data, etc available today and what else is added to the bill to codify what the guidelines are today.

      For example, without getting ahead of the SCOTUS cart here, WRT travel, the 21 day notification would come under scrutiny as really being required and the opening of the INTERPOL notification from USMS/Angel Watch after reporting of the trip by the local LE office who received the travel notification.

      As mentioned in this thread by @Steveo, the vague bad law would be opened up to all sorts of review, grilling, and modification to the application of it.

      Passport markings are not eligible for review under this since they are codified in law and not under guidelines.

  3. Tim IN WI

    TAKING DOWN THE ADMINISTRATIVE STATE.

    Can we have a discussion about the ” administrative state” without implications concerning government USES of a database? NO!

    The 94ONMIBUS inextricably tied sex offenders to the database and gov USES thereof. The notion was the way big data evinced the folks that they were the good guys looking out for our kids. Now kids themselves are indentured to the machines.

  4. Tired Old Man

    no decision today, maybe next Monday perhaps it’s a tie and they are trying to not have it as a tie

    • AJ

      Re: Gundy.

      There was a snippet in the scotusblog.com live blog this morning that said, “We believe that Sotomayor is writing Gundy.” If so, I fear her ideological leanings may indicated a poor outcome for us. Also, her seniority (#6, ahead of Kagan Gorsuch, and Kavanaugh–and Kav sits this one out, having been seated after argument) makes it impossible for her to be the senior justice on the ruling. If she’s writing it, someone handed it off to her. It would also mean it’ll be one of the earlier Opinions issued when it does come out, since they read in reverse-seniority order. With 27 Opinions yet to come out, it’s going to be a flurry of activity these last few weeks.

      Personally, I wouldn’t be surprised if there’s a tie and it gets re-heard next Term, allowing Kavanaugh to join. Ugh.

      • steve

        @AJ

        Think you might be wrong on Sotomayor

        “If we read between the lines of the oral arguments, a couple of members of the Supreme Court seemed to be leaning toward siding with Gundy.

        “The specific statutory section dealing with pre-enactment offenders says unambiguously that the attorney general decides whether, how, when, and who. So you don’t even know if you’re going to be subject to this law,” observed Justice Neil Gorsuch. “We say that vague criminal laws must be stricken.…What’s vaguer than a blank check to the attorney general of the United States to determine who he’s going to prosecute?”

        Justice Sonia Sotomayor continued that line of questioning. “I think a fundamental issue that Justice Gorsuch has been aiming at is—especially in criminal law—is it just to delegate to the attorney general a fundamental question about who gets covered or doesn’t get covered by a statute?” she asked. “That seems like at the core of what a law is: If someone does X act, you’re covered or you’re not.”

        • AJ

          @steve:
          Oh I desperately hope my fears are wrong on both results (against, tied)! Who are you quoting in your post?

        • Chris

          Always hard to predict, but if Sotomayor writing, maybe this is positive.

          https://scotusoa.com/gundy-v-us/

        • SR @ Chris

          If I read that correctly, at least one of the Justices might side with the government because this would otherwise effect 300,000+ laws that were delegated away? If so, that’s some high great BS of a reason there. If something is wrong, it’s wrong. It shouldn’t matter how many issues it would cause correcting it.

        • TS

          Those are very good reads, @chris @steve. Thank you for providing those to this forum. If people are going to prognosticate with odds, and how many documents are potentially needing to be changed, then it’s crazy because it could be anything in the end. Should start a pool then. (I just really wonder if it’s the number of documents that are potentially open to changing or that have to be thoughtfully converted to law because then that puts a huge plate of work in front of Congress which doesn’t want to do any work to begin with.)

          In my mind, it goes back to who got a good night sleep the night before the vote and how they justify their vote in the end.

        • TS

          @SR

          Yes, you read it right and are spot on with your thinking. We spend enough money redoing things in the country, these can be added.

        • Tim in WI

          Gundy is in a similar disposition as me in 1992. The WI DOJ\AG added me to WISOR. meanwhile I’d absolutely no clue. I’d refuse to plea over that HE and eat xtra for refusing! When they took my DNA I asked for comparison but was blown off by DOC, DOJ, and my attorney of record. SCOTUS by its non action supported THE BLANK CHECK in promulgation.

        • Tim in WI

          Wis. Stat. 301.451g (a) uses the date December 25, 1993, my Judgment predates as May 21,1992. Conveniently the A.G. Doyle ignored the law he did not like and went with the one that suited his aim 301.451g(b) “A person who was in prison, parole…. for a sex crime.” Ex post by definition.

          Neither D’s not Rs follow the constitution OMNIBUS94 Proves that. When I asked my state’s Senator Mr. Feingold why he voted “nay” on the final bill he used the word “unfathomable” to describe the contents. ( as in HR 5533). Like RBG, JJ STEVENS, he’d paid attention in
          world history class, where ” uses of registration ” had evidenced very bad outcomes beginning in Germany circa 1933, 6. Ironically the Catholic church at that time also looked the other way. Lead to murders then too, but very few objected. Led to conglomeration in slums, and homelessness, some ran ,more tried to hide. Work was completely denied by local unions, shops and peddlers were boycotted or ran out of town. All to remain appearing as ” justice for the untrustworthy. ” Those registrants however did not have to contend with the database infrastructure we see today.

          Today boy & girls take nudes of themselves and share with friends are called pornographers and indentured to machine database. Sick, Sick Sick. People will continue to look the other way, until it is their kid or kin.

    • Tim

      Janet Reno, that is WHO!
      All for unfettered USES.

    • AJ

      @steve:
      Thank you. I do recall reading the exchange in the transcript. Keep in mind Justices sometimes ask a question opposite of their “position” (nobody is truly impartial) to flesh out something that may support or refute it. I have no worries where Gorsuch stands on this. I’m less confident in Sotomayor’s position.

      At any rate, my fears stand and (if true) I still find it curious she’s been tasked with the Opinion. Then again, it could just be a work-balance move and an easy slam-dunk writing. (Doubtful, given the gravity of the case and how long it’s been since argument.)

  5. mike r

    My 2 cents,
    IDK where this case is going, but it seems like micromanagement of the executive branch by the legislative branch through the judicial branch. Yeah, there are hundreds of thousands of laws such as SR suggested that rely upon the administrative state to determine the exact regulations or applications of a federally mandated regulatory regime. Congress would have to go into such specifics on every statute it enacts that it could not legislate. The question arises in this case that is the more specific point is how much can congress delegate power to the executive branch. I think it is going to come down to the exact question being asked, who a law applies to and does congress have to spell out in every regulatory statute exactly whom it applies, or can they delegate that exact power to the executive branches or the administrative states. If congress has to name exactly whom a law applies to it is going to have top go back over hundreds of thousands of statutes and amend them to state whom the regulation or law applies to. Other than that, this case means nothing really. The real question, and I believe it is being challenged by CATO is, can they state apply retroactively a regulatory law. This is a big question and it is unconstitutional, in my opinion and apparently CATO. We have talked about this before on here, but I still believe you cannot retro a say tax on a property I bought 20-30-40 years ago and expect someone to pay all the accumulated back taxes retroactively. Someone stated they do this but I find it hard to believe. If my property tax was such and such dollars for 30 years and it all of a sudden goes up, there is no way that the state can say, “you owe us 30 years of taxes retro at this new rate, pay up.” No way. Cannot happen. Somebody mentioned an EPA action as an example of a retroactive regulation, but if a company say pollutes an area it can be sued in civil court to have to pay for that cleanup cost, so even there it is not a retroactive tax or regulation, it is a civil judicial decision. Apparently they have civil retroactive regulatory schemes since CATO filed a brief challenging the civil issue. I think they may very well win on that issue. IDK, I do not say much on here anymore but there are my 2 cents. Lol…

    • TS

      @miker has a point about the number of delegations given and the court. If you look at the doc @chris linked, there’s another set of linked docs within it. One discussed the court beyond the politics, but the ideals involved of which one Justice at least looks at things, ahem, large numbers. I encourage reading those linked docs too. It’ll help at least see things at the court. I didn’t say understand though. Too much going on behind the curtain for that to happen IMO.

  6. Steveo

    Ok, so the article that steve posted is extremely helpful in sorting out the significance of what is going on here. I suggest you go read it and refresh your memory. Here is a very important paragraph from it: “The law also contains this provision: ‘The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter.’ In other words, Congress left it up to the A.G. to determine how to deal with the estimated 500,000 individuals whose sex crime convictions predate SORNA’s passage.”

    Now why would congress leave that particular issue undefined and let it be handled through some executive maneuver? Because they knew it was problematic. They knew you just can’t apply stuff to people who cut a deal before you made the new law. That’s called ex-post-facto, or retroactive application of punishment. The government wouldn’t be in this spot if they hadn’t done such nefarious things.

  7. H Kim

    Not the most sympathetic figure, Gundy. Let’s hope his crime isn’t somehow used to invalidate his arguments on delegation of powers. I seemed to also think that Sotomayor could be standoffish to registrants in their court cases she was involved with, judging from past cases involving her.

  8. American Detained in America

    For years now, I have been struggling to understand why anything to do with “sex offenses” has anything to do with the Adam Walsh case. Even in the confession of who the police believe killed Adam Walsh, there was no sexual motive, nor did he molest the boy. This act was way too overreaching. It’s kinda like how the rape and murder of Jessica Lunsford was used to “legitimize” internet stings when the internet had absolutely nothing to do with that case.

    • Tim

      It was about the uses of the machine database and it’s applications to man. Why not begin with evil men and go from there. Why not opt for unfettered use AND USE IT. Atomic bomb effects were tested on humans too. The first thing our leadership did was indenture men to them and compelled maintanence. Re? Machina! A prime mover for corporate control. As evidenced by the MN>HN=Null.
      All firms prefer (K) in the long run versus(k) labor. As sure as water flows downhill! But does a truly free humanity survive such an inclination? SOR has proven to promote lawlessness NOT suppress it. Precisely because the INTENT was hidden.

      The ultimate question in Gundy is even wearing a device would PREVENT ABSOLUTELY his 1. Ability to: acquire cocaine, 2. Give it to a child, 3. stop bad action before it occurs.
      NO! Though it would help gain conviction afterwards. An AG will in every case demand it.

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