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SCOTUS: Gundy v. United States – Affirmed

Judgment: Affirmed, 5-3, in an opinion by Justice Kagan on June 20, 2019. Justice Kagan announced the judgment of the Court and delivered an opinion, in which Justices Ginsburg, Breyer, and Sotomayor joined. Justice Alito filed an opinion concurring in the judgment. Justice Gorsuch filed a dissenting opinion, in which Chief Justice Roberts and Justice Thomas joined. Justice Kavanaugh took no part in the consideration or decision of the case.

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. Case Details





Join the discussion

  1. Eric Knight

    And here you go. This is why the left side of the Supreme Court is not our friend. Even Alito had to do a judicial Mary Lou Retton to explain his separate concurrence, which at least had some semblance of rationality though disappointingly lacking in all the facts, in my opinion.

    Unfortunately, the plaintiff in this case was probably the reason the left side went against him. They tend to look less at the plaintiff than they do to their shifting interpretation of the Constitution. Gorsuch was spot on in his dissent.

    This is why it is VITAL that we have plaintiffs who aren’t abjectly the worst case scenarios for presenting our case. A huge loss, in my opinion.

    • texas 2

      I believe that everyone is looking at this the wrong way, SCOTUS did not rule against the sorna at all. they ruled Congress can do what they did is all. the issue was not registration, it was how they do things in Congress.

      the real test will be when someone challenges the registration as punishment compared to civil. i wait for that.

      • Tim in WI

        1. Such a case would involve a man who plead not guilty, refused to enter waiver, refused to acknowledge guilt, and opted for trial. ( Gundy did not).
        2. Such a case would necessarily require a registrant who demanded trial in an FTR AND get some of these facts in the record, even while convicted by AG henchmen.

    • Les Mis Life

      Spot on! That has always been our biggest problem in courts: worst case cases! That’s why Doe vs. Snyder was such a powerful win. The rest of the cases that get taken up aren’t really doing us favors…just cementing horrible precedents.

      • AJ

        @Les Mis Life
        June 20, 2019
        “The rest of the cases that get taken up aren’t really doing us favors…just cementing horrible precedents.”
        I disagree. If it’s such a sh!tty case, who in their right mind would cite it as precedent? The State won’t; it’ll use the precedents it cited to beat the sh!tty case. The RC won’t; it’s a sh!tty case.

        Though it adds to the win column for them, it doesn’t really make their position any more compelling.

    • Derek Logue

      You are wrong on this one, Eric.

      The issue here was on how far Congress can pass the buck. The sex offense issue here was merely incidental. Conservatives had hoped that they’d win in hopes of getting rid of pesky issues like Obama-era EPA regulations so we can pollute the planet to our hearts’ content. Alito broke rank and decided this was not the ideal case for challenging delegation.

      I’d like to point out that while Smith v Doe was a 6-3 decision, the three justices who dissented were part of the liberal wing. The conservatives are NOT going to undo Smith v Doe.

      Quite frankly, I don’t believe we will see Smith v Doe overturned. How often has SCOTUS ever reversed a previous SCOTUS ruling outside slavery?

      • Dustin

        I would say Smith v. Doe was made obsolete by the state legislatures who considered it a blank check to stack on more restrictions and obligations. Millard, Snyder, and other cases that have found the registry punitive used the exact same criteria as Smith when evaluating, the difference being the laws and rules imposed and their subsequent effects since Smith was decided.

        Perhaps it would be a better strategy to “update” Smith v. Doe rather than overturn it to get rid of the associated restrictions, then later attack the registry on privacy grounds that several states have found the registry violates. Wouldn’t hurt to point out uselessness as well, and that LE only likes it to solicit bigger SORNA grants.

      • Tim in WI

        I agree about conservative reluctance politically, But not so much among the masses who recognize the danger of an oppressive state. IMHO Some pure capitalists hold away in the R party, and are the usual suspects, war mongers & weapon makers, prison and infrastructure builders, beneficiaries of long term gov contracts, oil & natural Gas firm
        and most importantly MEDIA. IMHO it will be the believer who first reject the indenture of human to database machine. I think North Carolina v Packingham makes the case that even freedom of speech was at stake with respect to ” intent & effects test”. FREE SPEECH V INTERNET GIANTS , will soon come to pass.

      • Tim in WI

        As for the 3 who’s opinion was ” undoubtedly punitive” or was it ” unquestionably punitive” were of the Jewish community. Precisely because they’d recalled their history in 1933-36 Germany. I remind readers it was the Social Democrats in prewar Germany who began a similar ” registration regime against the ” dirty ones”.. I would also point out it was the Catholic Church that turned away it eyes and said nothing. Again history repeats.

      • AJ

        @Derek Logue:
        “How often has SCOTUS ever reversed a previous SCOTUS ruling outside slavery?”
        Apparently more often than you think. Just off the top of my head, I refer you to: Plessy v. Ferguson was overturned by Brown v. Bd. of Educ.; Buck v. Bell was overturned by Skinner v. OK; Lawrence v. TX overturned Bowers v. Hardwick; Janus v. AFSCME overturned Abood v. Detroit Bd. of Educ.; WV Bd. of Educ. v. Barnette overturned Minersville School Dist. v. Gobitis (and then SCOTUS piled on further with Wooley v. Maynard and NIFLA v. Becerra). Just in the last two weeks’ releases SCOTUS has overturned precedents, much to the dismay of JJ. Breyer and Kagan.

        Given C.J. Roberts’ statements about wanting to correct some precedents–even though he’s a huge fan of stare decisis–I would expect a few more to happen in the coming years.

  2. Eric

    It seems our only hope here in California is if Newsome follows in the steps of Brown and we see the state recognize that a blanket registration for all regardless of offense or risk is simply ludicrous, punitive, and counter productive. As we are seeing states going against the federal government and the supreme court in marijuana and abortion, I hope states like California will take ownership and override this abusive insanity. We can clearly see that the supreme court is nothing more than the personal opinions of those on the bench and how they prefer the law to read. I am thankful we have Janice and ACSOL being a voice for us. I know from my three years in SO therapy and seeing probably 85 SO’s come and go that most of us are deeply regretful for the poor choice we made and that going back, we would choose differently. I met so many people with spouses and children and businesses that are just destroyed because of this, years and decades later still suffocating under this, and this supreme court won’t even take the time to investigate the truth. Do you think any of them actually have ever talked to one of us? And I see Kavanagh abstained obviously to avoid backlash, but he should be our advocate having experienced that total unmitigated wrath and hysteria surrounding even a suggestion of sexual impropriety. No, I think our only hope is in the right of the states to make their own decisions and govern themselves. I pray Newsome is a visionary and can understand our plight.

    • TS


      Kavanaugh would only have his personal and maybe professional non-binding opinion here since he was not seated for the argument and obviously was not invited to provide such by the others which he could have been.

    • CR

      @Eric: “And I see Kavanagh abstained obviously to avoid backlash, …”

      No, he didn’t abstain. Gundy was argued before Kavanaugh was seated.

  3. AJ

    Wow. I have yet to read the Opinion, but “affirmed” says it all. So why do we even have a Congress? Why not just have Congress write a law saying, “we cede all our constitutional authority and obligations to the Executive and its various and sundry agencies, departments, and offices. Henceforth, Congress shall only hold hearings and posture on political topics.”?

    The details of this case aside, it has put a whole new level of fear and disgust in me regarding where this country has gone and where it’s going. The Constitution just took a point-blank shot to its core. It’s more confetti than anything anymore.

    But hey, as long as the Sheeple have their FB and new smartphones, who cares about any of that stuff, right? I’m truly stunned and saddened by the unfettered authority the Judicial just gave the Legislative. Time to redouble expat efforts and inquiries. This country’s pace of sliding into the sh!thole just increased….never mind the $21T debt, up “only” $1T just this year.

    • Notorious D.I.K. / Kennerly

      AJ: “Time to redouble expat efforts and inquiries.” But that we could. It’s hard not to take on a conspiratorial bent when considering the steady drumbeat of travel restrictions that accompany a worsening condition for us, America’s degraded citizens.

      Still, I’m open to any ideas about escaping from this giant open-air prison called the United States. An underground railway to… somewhere? Iceland, maybe? Or some place they’d least expect us – and we’d least expect to find ourselves, such as Myanmar (I still call it “Burma,” by the way). We just have to work out our public relation problems and convince a contrarian country to offer us asylum. Then, assuming that we’d still be able to collect our Social Security retirement benefits (just a handful of years to go, for me) kick-back and enjoy a thermal spring or the charming Buddhist monasteries and outstanding chai.

      • AJ

        @Notorious D.I.K. / Kennerly:
        If one stays mobile and “tags home” every now and then, it’s not impossible. Though I’d like permanent expat residency, I’m okay with the transient version. Heck, maybe I’ll buy one of those €1 properties in Janice’s ancestral land. They may not want me there as a citizen, but I’m guessing they’d like my financial and economic contributions, and light social-services footprint. As for the SSA benefits, that’s mostly not a problem–and certainly wouldn’t be if I’m only on long-term travel and still technically a U.S. resident. (Though I wonder what happens if I want to be gone 179 days but my State requires registration every 90 days. Sure sounds like a rational basis law is imposing an unwarranted burden on my fundamental right.)

        Regardless anything else, family issues keep me mostly Stateside for the near future.

      • Carey

        COME TO NEPAL! The air quality may not be so good in Kathmandu, but the rest of the country is Breathtaking! I left the U.S. for good on April 1st of 2019, and will only return to New York in late 2030 to be officially removed from the Registry! So far, I hsve maxed out two 90 day stays in Hong Kong, and one in Europe, where I spent most of my time in Stockhölm, Copenhagen, and Napoli. I flew from Hong Kong to Kathmandu on January 1st ..

    • TS

      @AJ, et al

      I’m putting this into the Gundy file for you and others to read at your leisure, if you like since it’s ref’d in this article, on the entire non-delegation idea and our Gov’t being possibly unconstitutional. It does answer, sort of, your thoughts above I think.

      Interesting points for sure…

      Of course, I don’t like the idea of Gundy not being the right vehicle according to some because it smacks of elitism, IMO.

  4. Mp

    If I am understanding this correctly, Justice Alito wrote….

    “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.”

    So he doesn’t agree, but will agree because most everyone else does?

    • Eric Knight

      Hence my earlier statement, “Alito is performing judicial gymnastics (Mary Lou Retton).” Sex offender adjudication is definitely the canary in the mine with regard to societal changes.

      • anonymouse

        Judicial gymnastics? This?

        “[i]f a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.”

        More like spineless opportunism if you ask me. More appropriate for 1930s Germany than SCOTUS.

        • AJ

          “More like spineless opportunism if you ask me.”
          Agreed. WTF does Alito think his job is? Just to go along with the crowd? The f*cking moron needs to vote in a manner he thinks is right. Period. Instead he let his anti-RC bias influence his writing. It won’t influence his legacy much because he’s already shown himself to be an ass.

        • SR

          Seriously. That was an extremely poor thing for him to actually say. He should’ve made up some reason other than going with the popular opinion. I was astonished when I read that.

        • TS

          “But if it saves one regulation (of 300K) from being discarded…”

    • KM

      Alito is willing to agree because of stare decisis, and nothing more.

  5. CR

    This country has been on a wrong path for a very, very, long time. Today’s decision continues that trend. It confirms that the laws that define what is a crime and who may be prosecuted need not be made by duly elected representatives of the people. With a mere wink and a nod, Congress can authorize the Executive to indulge in whatever law-making it wishes. The absence of an explicit constraint to the Executive can be now be interpreted as consent to craft any law the Executive desires.

  6. David

    Seriously?? WTF SCOTUS!??
    Now it’s going to be many more years before they will choose to hear another SO case.
    😡 Angry 😡 & 😵 disappointed! 😵

    • David

      😫 It is warped irony that, in the SAME HOUR that SCOTUS was releasing their ruling, I was doing my annual registration at the PD..😵

  7. Scotus Save Us Now

    This wasn’t a SO case, this was a delegation case. The person at the matter of the case didn’t matter. They decided congress can give power to the executive branch as long as they provide some direction. While I didnt see any direction, this decision is not surprising. A decision in the other direction would of gutted all Quasi Gov’t Agency’s such as the EPA, FTC, SEC, etc.

    They didn’t decide SORNA isn’t punishment. They didn’t decide that SORNA it self is setup right. They just decided that the AG was properly empowered to make this decision. This was a very nothing case in our battle, and more a case in the battle of smaller gov’t vs larger gov’t.

    Has they decided the other way, congress would of just changed that single line to say “and everyone whose ever been convicted”.

    • Tim

      @Scotus save us,
      Yes! You get it. Delegation is proper in cases where regulatory outcome is at stake. The people MUST be permitted to think up, build and promulgate regimes that improve conditions for the people. ( there is no presumption of efficacy necessary) Gundy failed himself by opting for plea to reduce his exposure to prison. That is done everyday and in doing so convicts throw away rights to substantive protections on the issue. ENTERING PLEA is a highly scripted process and ENTIRELY VOLUNTARY and necessarily so. Gundy here complains but forgets he’d chosen voluntarily to permit AGs to act down the road on the issue GIVEN Congress had decided to act first. Attorneys General are not permitted to compel registration without congressional delegation via act being in place first.

    • David

      @ SCOTUS Save Us Now. I realize it was about non-delegation, not sex offenses. But I think it would be naive to believe that the subject matter of the case did not have some influence on their decision.

  8. TS

    My thoughts:

    Stare Decisis anyone? That is what I read with four certain votes and the fifth going along with the majority for now, until a later time, if a case is presented to consider he can preside over. The 300K regulations which appeared to be a concern are safe, but maybe not later.

    I believe this is against what the framers had in mind for Legislative and Executive branches. The Legislature seeking help from the Executive branches to do their work (as noted in the majority opinion) is ludicrous given the Constitution. Do your job and quit grandstanding!

    Gorsuch and Thomas make sense together while writing a great dissent IMO (one for the ages at 33 pgs which is 15 more than the majority opinion and schools the majority like Thomas did on Stare Decisis in Gamble v US earlier this week), but Roberts is odd, given his history on SO topic; however, he flips on big gov’t more than a jumping bean on a hot sidewalk.

    I vote Gorsuch for CJ in due time. RBG lost favor from what she gained earlier this week in Gamble v US.

    As a side note, this ruling keeps in place the SMART Office AG 2008 and 2011 Guidelines put into place before IML and keeps the travel exceptions in addition to 21 day travel notification in full implementation as noted in IML Dispatch detailing IML 2016.

    • anonymouse

      All of what you said, but as a side note, there has never been an exception for an individuals’ travel notification requirement, hence this ruling cannot keep such a thing in place.

      For the thousandth time, the 2011 IML Guidelines give STATES flexibility to modify their state laws and still be considered SORNA compliant. They have nothing to do with an INDIVIDUAL’s notification requirement under a 2016 law.

      As many times as you spout this nonsense I will take the time to correct you. As I am worried your “legal” advice gets people’s butts thrown in prison. Not sure why you insist on playing lawyer here while people’s lives are at stake. And everyone, please remember:

      ACSOL, including but not limited to its board members and agents, does not provide legal advice on this website. In addition, ACSOL warns that those who provide comments on this website may or may not be legal professionals on whose advice one can reasonably rely.

      • TS


        Until you read the 2011 AG Guidelines on the website and the International Travel section previously and multiple times presented to you specifically to read about the exceptions, you should stop commenting here because you are misleading the others who want to know. For the one thousandth and one time, I will continually correct you. As the adage says, you can lead a horse to water, but you cannot make it drink. So, I guess I can lead you to the knowledge, but I cannot make you read it or understand it if you do read it. BTW, others here have echoed with concurrence of my noting the exceptions to the 21 travel day notification guideline.

        I have never provided legal advice here but have encouraged others to research on their own, but when I can point someone to the chapter and verse of what they are asking about, as have others here, it will be done.

      • Carey

        New York City’s Sex Offender Monitoring Unit (SOMU) will not even send a notification to tge Feds until 2 days before your flight because of Angel Watch notifications! I lost my brand new unmarked Passport because of it, and, now, I have an Emergency marked Passport that I received from the U.S. Embassy in Stockhölm, Sweden,, which I will choose to reapply for every year because of my decision to NEVER return to the U.S. until my 20 years, in April 2031, is COMPLETE, and I can be fully removed from the registry! I am a Level One in New York which I received from a State Superior Court Judge on Manhattan!

        I am also an 100% Fully Service Connected PTSD Disabled Vet. ALL VETS can contact the Veterans Office in the White House that Trump Executive Ordered just after he took office, for Help!

  9. Facts should matter

    If you’re 50 or over, I’m afraid help will come too late for you. Megan’s Law will be around for at LEAST another 30 years before SCOTUS finally deems it punitive.

    • CR

      @Facts, that’s what I think too. Which is why what @AJ said earlier resonated so well with me … “Time to redouble expat efforts and inquiries.” Relief here in the US in my remaining lifetime is looking more and more improbable.

  10. Richard

    This will be remembered as the day the UNITED STATES CONSTITUTION was ignored by our country’s highest court, surprised i’m not.. We the Voters, WE the people still have a voice and we need to let it be heard call your Congress and demand they fix the constitutional violation’s of the SOR and the Violation’s caused by SORNA and the Adam Walsh act. Disappointed Yes, Hopeful Yes,…. gonna give up NO! We have had some good wins, and I know, there is more to come!

  11. KM

    Not surprising. The left will always seek to be as powerful as possible. They will always vote to expand power over citizens. It is good to know that the conservatives are probably open to helping us.

    “[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? “

  12. The Persecuted

    Why not just give a 21 day notice a couple years in advance. Then when the time comes due sneak across the border into Mexico and cruise off into the sunset. That gives you a couple years to save. Nobody is really keeping a tight guard on people going the other way. Or buy a boat and give you 21 day notice saying destination unknown. You can buy a seaworthy boat that will get you anywhere in the world for $30K or less. The only reason we don’t get into most countries is because of the advanced warning. The key is saving enough to be able to start a life wherever you end up.

    • AJ

      @The Persecuted:
      “Or buy a boat and give you 21 day notice saying destination unknown.”
      I’ve considered this (sea) route. I wonder if one could simply tell the Fed goons, “Destination: Caribbean Sea. Ports of call undetermined, unplanned, and unknown.” Then pack a bunch of provisions and go from there. There are scads and scads of places a boat can sail in, tie up, provision, and sail off without anyone even noticing, let alone caring. Many wouldn’t even care if you stayed a while, especially if infusing cash into the economy.

      There are a couple places that are high on my list for escape. I’ve been to them before and they truly are places where people just disappear from the life they were leading. (The top medical needs at one place I know were sutures and Haldol—fun times, peeps!)

      • TS


        Please don’t forget Wilson delivered by FedEx….(movie reference there if you are wise to movie trivia and not a hint to disclose your port of call)

      • Will Allen

        It seems like a person could buy a home in another country and completely hide your ownership. That could be done in the U.S. but I’m not familiar with that in other countries.

        The home ought to have water access to the ocean. Once that is done, simply jump on a boat and drive it to your dock. Done.

        Don’t tell the criminal regime of Amerika anything except “F off.”

        • AJ

          @Will Allen:
          There’s a town in Sicily that’s also doing the €1 or €5 thing for homes. That would meet your water desire. Sicilians are typically very protective of their own, so once you’re part of the “in crown” there, IDK that you’d ever have a problem. How or if one can mask ownership, IDK, but I have to think there’s a shell company or two one can form in Panama or wherever.

      • David

        @ The Persecuted: Y’know, they require us to give 21-day advance notification of international travel….. but yes, what if you did as required but just wrote “Caribbean Ocean. Specific ports currently undecided.” ?? You are not seeking authorization or approval – by providing them with notification, you are doing as required ….. and they have no mechanism to “deny” your travel. Their “authorization” for travel is not being requested.
        (It would be interesting to see just how broadly/loosely one could define one’s travel destinations.🤔)

    • Bill

      The reason we RCs don’t ride off into the Sunset is…..
      THE U.S. MARSHALL s WILL BE UP YOU ARS IN NO TIME AT ALL THE Y.S. HAS GONE APE SHEEET OVER RCs and they have POWER LIKE NEVER IN OUR HISTORY TO DESTROY RCs with such an easy way they could spit in any direction and KILL ALL RCs and no one would/could do sheeeet !!!
      IS THIS STATEMENT CLEAR AND VIVID ENOUGH OR I COULD TALK ABOUT WHATS GOING ON … Castrations, Homelessness, Persecution..want more !! For Real !!!

    • Carey

      Yes… Every RSO should learn to Sail! First, you can go ANYWHERE, and just go check in., and put a crisp new hundred dollar bill in the front of your Passpirt so they won’t even scan it! If they refuse to take the gift, you can claim EMERGENCY REPAIRS, and they MUST LET YOU STAY!

  13. ReadyToFight

    There should be a law against Pandering Pussies in Politics.

  14. FinallyOff The Reg

    This is absolute BS. BS!!!!!! I am deeply upset and it goes to show.

    The ONE *uking chance we all had was shot down by weak judges.

    Am going back to my living in a fort in the backyard.


  15. jesse

    From Slate (The Supreme Court’s Conservatives Are Ready to Take a Wrecking Ball to the Entire Federal Bureaucracy – article link in the post) – this nails it:

    “Gorsuch’s fuzzy new rule would work a revolution in federal law. Hundreds of statutes task the executive branch with some broad goal, then let agencies fill in the details. The Environmental Protection Agency, for instance, has wide latitude to identify and restrict pollutants, because Congress doesn’t want to legislate every new regulation. Instead, it gives the EPA certain guidelines, then leaves it to the agency’s scientists to determine what rules would best serve the public. The same goes for the Department of Labor, whose experts are empowered to identify and remedy workplace abuses. Americans may complain about bureaucracy, but with Congress perpetually deadlocked, these agencies keep the government running—and, crucially, adapting to new challenges, exactly as lawmakers intended.

    Now Gorsuch wants to stop all that. His vague standard would allow judges to strike down statutes that don’t give agencies sufficient direction. What laws does he have in mind? On Thursday, he limited his critique to SORNA. But soon Kavanaugh, a critic of the administrative state, will likely join his crusade, shoring up a conservative majority. At that point, it won’t just be sex offender laws that fall, but any statute that delegates too much power to agencies in the court’s subjective view. The result could permanently hobble the executive agencies that do the everyday work of carrying out the law.

    I am not sympathetic to SORNA, and I find much to admire in Gorsuch’s criticism of the law itself. It does seem fundamentally unfair that the attorney general could impose stringent new restraints on the liberty of 500,000 people. But the deeper constitutional flaw here really lies in the court’s blessing of retroactive punishment for sex offenders. In 2003, SCOTUS ruled that the government may saddle convicted offenders with extra registration requirements without violating the Constitution’s ex post facto clause. Why? Because these requirements aren’t “punitive,” even though they’re extremely invasive and onerous.

    Congress relied upon that legal fiction to justify the constitutionality of SORNA. Gorsuch’s fury may be misplaced: The real injustice lies in America’s draconian sex offender laws, which do not appear to work at all. SORNA is a symptom of a deeper disease, one that Gorsuch misdiagnosed. The problem isn’t Congress’ delegation of power. It’s American lawmakers’ eagerness to subject even minor sex offenders to a lifetime of retribution and humiliation.

    Halleluja! Everything starts and ends with Doe v Smith. Anything else is chickensh!t.

    • Tim

      Yes is began with OMNIBUS94 SINGNED BY W.J.C. that contained the Jacob WetterlingAct.
      That Act and subsequent review forever intertwined the sex offender & state’s USE of databases. State’s began with indenture of sexual aggressive adults and moved quickly to begin identifying and indenture of children aswell.

    • TS

      I would have liked to hear what Kavanaugh had to say about this though and Justice Regulation Document Saver prevented us from knowing what a full court would have had the chance to hear, vote, and opine on. I want a refund!

      • TS

        My other thought is if this case brought from a different angle, not a SORNA person bringing it up, would’ve the outcome been different with different presentations, etc? We’ll never know of course, but if someone else wanted to do so sooner rather than later, not 84 years later, I guess the door has been cracked open.

      • TS

        I’m not the only one who believes if a fully seated bench had heard Gundy, the outcome could have been different. Kavanaugh’s vote here, using his own precedent, could have overturned the non-delegation principle brought by Gundy because Alito could’ve swung differently. Coulda, woulda, shoulda, what if…

        It would be nice if this was re-approached from a non-SORNA case and voted on by a fully seated bench where SORNA was positively impacted for those impacted by it in the end.

        Alito’s Strategic Vote Signals Reining in of Law by Regulation

        • CR

          @TS, thanks for that article link.

          It did a good job of explaining why Alito’s vote was strategic. Of course I knew already that if he had sided with Gorsuch and the dissenters, that the vote would have been 4/4, and the 2nd circuit decision would have been affirmed, just as it was anyway in the 5/3 vote with Alito concurring in the judgement. What I didn’t appreciate is that we’d never have have had Gorsuch’s dissent, nor would we have learned who voted which way if Alito had sided with the dissenters. Because in that case, nothing at all would be published except for a “perfunctory affirmance by an equally divided court”, as the article says.

          So as much as I dislike Alito, I won’t be mad at him in this case for concurring in the judgement. It left the decision as a plurality rather than a majority, but sent a clear signal that the non-delegation doctrine may yet be revived, an outcome I welcome as a small-government libertarian and a philosophical enemy of the state.

          One thing I question about that article is the author’s reference to Kavanaugh’s recusal. Kav didn’t vote because he wasn’t seated at the time of oral arguments. Is that a proper use of the term “recuse”?

        • TS


          You are welcome. I don’t believe it is a proper way to use “recuse” here in this situation. I did post just prior to the Gundy opinion being pub’d there’s a way Justice Kav could be included in on the decision. It’s not an option that’s commonly used, but it’s there. You can read more on that here in my reply to @Bo near the top of the comments:

          Had it come to a 4-4 vote, I would like to think with the importance of the topic, the bench would have given it another turn with the full 9 in play to hear it and then decide the outcome instead of leaving the lower court ruling in place, moving on, and not being able to read the thoughts as written. However, this court is keeping things lively right now and CJ Roberts is being questioned as if he really were a Conservative voter on the bench.

  16. Tax dollars

    What a bad ruling and written under the false premise to protect the public. Instead California 290 registration effectively doubled revidivism in the last ten years or so. They should br held responsible for creating the risk both the muders and attacks on SO’s and the increased revidivism

  17. TnT

    Sad but True ! The system will fall one day soon … They can not keep supporting these unconstitutional unjust laws and not expect to reap what they sow . Its only a matter of time until its their son, father, brother, uncle, nephew , in law , friend , neighbor , because 500,000 and counting , It will hit home if not today one day very soon .

  18. Brad


    This ruling was not upholding SORNA. It just stated that the US Attorney general had the right to decide if it could be applied retroactively. If they had ruled for Gundy, many organizations such as EPA, etc would’ve came tumbling down. Also, congress would’ve just fixed the law to apply it to EVERY offender, as retaliation.

    This ruling does NOT put a stop to all the recent sex offender court victories that have been occurring lately. Please stop freaking out.

    • TS


      And the premise you stated was based upon the ability of Congress to delegate to the AG, which is really the genesis of the case…delegation of powers.

    • David

      Sadly, you are quite correct, Brad.
      Congress would’ve just re-written it to apply it to EVERY offender, as retaliation. (Probably would’ve used the Florida approach – make it apply to everyone, dead or alive, for all eternity.)

    • Tax dollars

      Who wouldn’t freak out when the United States Supreme court first claims public safety in a decision about separation of power. I have not read the legislative history to see that the intent was to be retroactive. My concern is the continued taslamic opinion of public safety contrary to the facts.

    • AJ

      “If they had ruled for Gundy, many organizations such as EPA, etc would’ve came tumbling down.”
      False. Despite the bit of fear mongering in the Opinion, Chevron Deference would remain. The Dissent highlighted that would not happen. SCOTUS has long and repeatedly understood Congress needs to give broad latitude for agencies to accomplish *civil* affairs. This was about criminality.

      Based on your logic, Gundy going the other way would’ve also taken down Chevron Deference…and yet that concept wasn’t mentioned ANYwhere by anyone.

      • M

        It’s the double edged sword best seen in parenting tactics. Dad says your grounded but you gotta ask your mother for how long. She says forever, and to you, that seems unreasonable, unconstitutional in this case. So you go back to father and say hey this isn’t even how you guys usually work things out, make a good argument for it even. Dad and his ego not willing to be challanged actually accurate or not, hes not budging and reminds you he has absoved himself of this issue entirly by giving your mother the resposibility (with a few mandates he intergected of course, TO guide her weary way) and sets his foot down that you need to change her mind not his.
        You approch mother, she says maybe she overstepped but reminds you father runs this house and until he can be convinced, it’s your grounded for life, only there are 50 moms only one dad and your option to choose your real mother represents the finacial reality of most residents picking theirs.

      • TS


        Chevron Deference is discussed by the CJ of SCOTUS here:

        Supreme Court won’t strip federal agencies of all power to interpret regulations, a top priority of conservatives (

        • AJ

          Thanks. I’ll have to save watching it for a little bit later. Gundy has augmented my belief that SCOTUS will never void Chevron Deference; it’ll merely tweak and strike individual events that overstep the fuzzy line.

          Chevron has its benefits, and SCOTUS is willing to allow that to continue. Its existence fosters and feeds the current state of our nation. Though the Framers created a pyramid-shaped government, “we” have managed to invert it. The inverted-pyramid cannot function without Chevron.

  19. TS

    From NPR comes this on Gundy:

    Is The Supreme Court About To Give Haters Of The ‘Deep State’ What They Want?

    “It could depend on how Justice Kavanaugh would decide.”

    A sitting full bench would be interesting on this topic.

  20. Bo

    Justice Neil Gorsuch joined with the Supreme Court’s liberal bloc to deal victory for criminal defendants Monday, striking down a federal law that punishes gun crimes as unconstitutionally vague.
    Really reccommended reading.

  21. Matt Mitchell

    “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.”
    ― James Madison, Federalist Papers

    “It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.”
    ― James Madison

    “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce. … The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State.”
    ― James Madison

    It is very sad to see SCOTUS in a position so distant from the learned wisdom of our forefathers. Politics ought be an instrument in maintaining and granting liberty, not etching away at it. The entire purpose in our succession from the crown was to escape the servitude decisions like Gundy enforce.

    “If the people cannot trust their government to do the job for which it exists – to protect them and to promote their common welfare – all else is lost.” Barack Obama

    Politics aside, comments like this give great insight into what this country has become accustom to its expectations from Government. I do not think the constitution mandates any responsibility or demand by the people for government to “protect us”. Certainly, not by taking away the liberty’s outlined in the same document that grants them power. Promote Common Welfare, well yes thank you for shackling Registrants with your common welfare flags held high. Nazism, expressed the idea of a “people’s community” …I dont think that turned out well.

  22. TS

    More Gundy here…

    Justice Gorsuch Wages War for the Constitutional Order

  23. David⚜️

    Hmmm 🤔 So it appears that Justice Amy Coney Barrett, who favors “originalism” and “textualism”, will be confirmed to the SCOTUS. But how would she have weighed in on Gundy?? I would think that “textualism” would require her to decide in favor of Gundy that the AG of the USDOJ was overstepping his authority by making registration retroactive.

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