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The Supreme Court Wants to Revive a Doctrine That Would Paralyze Biden’s Administration

Joe Biden promised us an FDR-sized presidency—starting with bold action to halt the spread of COVID-19, end the worst economic downturn in decades, and stop the climate crisis. Biden could use regulation and executive action to move quickly to decarbonize the economy, cancel student loan debt, and raise wages. But a Biden administration has an even bigger problem than two long-shot special elections in Georgia: the new 6–3 conservative majority on the Supreme Court may soon burn down the federal government’s regulatory powers. …

But last year, in a case called Gundy v. United States, four conservative justices announced that they wanted to bring the nondelegation doctrine back to life. Gundy arose out of a national sex offender registry law that explicitly applied to everyone convicted after the law took effect but delegated authority to the Department of Justice to determine when and how it applied to people convicted before the law took effect. Herman Gundy, who was convicted before the registry law took effect, argued that the law violated the nondelegation doctrine. The court upheld the law. But in a dissent joined by Chief Justice John Roberts and Justice Clarence Thomas, Justice Neil Gorsuch wrote that the court should revive the dormant nondelegation doctrine.* Gorsuch’s dissent argued that Congress may only delegate policymaking power to agencies under three narrow circumstances: to “fill up the details” of a legislative scheme; for executive fact-finding to determine the application of a rule; and to assign nonlegislative responsibilities to the executive and judicial branches. Justice Samuel Alito wrote separately to say he’d like to “reconsider” the nondelegation doctrine—just not in a case about sex offenders’ rights. Full Article

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Our former Top U.S. National security Advisor Lt. General Flynn had some interesting to say in an interview with !ou Dobbs this evening(Thu) regarding the use of our nations surveillance programs, both foreign & domestc. Long before the gener’s criminal case, Sex offenders were the first sold out to electronic surveillance saints and in many ways defines the blurred lines between proper versus improper \ constitutional v unconstitutional uses of the infrastructure to maintain civil authority. In many ways a States’ ability to indenture of citizens to database property clears the way for other onerous, but presumably civil, uses including election tampering.
Most of the advantages, however are not wrought by the pure surveillance, rather the benefits derived from the analysis of collectives of databases are far greater. That is how you harvest votes.

While they’re at it, maybe they can reign in the use of “interstate commerce” to claim jurisdiction over things which clearly are not commerce at all, like me walking across a state line and into a neighboring state. SORNA only exists if the feds have jurisdiction, which they shouldn’t under any sane definition of commerce.

@ Worried Wisconsin: I certainly agree – it seems like prosecutorial overreach. Unless you are actively engaging in genuine interstate commerce – such as selling FÜL* hats, t-shirts and bumper stickers – it should not apply, especially if the agrued “commerce” is simply buying gas or renting a hotel room.
*”Fight Ünconstitutional Laws”

Yes, reviving the “non-delegation authority” may hobble Biden, but it will equally hobble all following administrations as well. And maybe it wil lead to greater bipartisanship as lawmakers will have too much real work to get done and less free time for arguing and throwing mud!!

When did this become a pro Biden website?? Its people like me, who is libertarian, that wants limited government!! The ones on the left including Biden thats always for an over reaching government!! I’m for very limited government whether its pertains to sor or guns or marriage!! When a government that has no bounds gets involved it screws everything up!!

@ Hambone: Agree 100%. For the life of me, I can’t think of one single problem that the government has ever solved. Even if they ever did, I’d bet my left nut that their solutions caused ten more problems that ended up being worse than the original.

I see nothing pro Biden (or pro any other politician) here. The statements about hobbling Biden were factual, and would apply equally to any other administration as well regardless of which way they leaned.

Bringing back the non-delegation clause would quickly bring chaos and havoc to government regulation and programs all across the country, and it will be some time till all the various lawsuits and problems are dealt with. Especially with the non-cooperation we’re seeing in congress, it is really hard to believe that they’d be able to write bills with the kind of detail which would be necessary to avoid a non-delegation lawsuit moving forward. My guess is that they’d write more legislation which pushes the specifics back to the states to implement to avoid running into non-delegation lawsuits.

But, it would unlikely do nothing to help those on a SO registry since that issue was specifically addressed already by the court last year. We’ll likely be in the same spot years from now if we’re waiting for this balloon to lift us up.

The issue of jurisdiction vis-a-vis interstate commerce is another one which would have broad effect across federal regulations, and it could serve to remove jurisdiction of the feds for anyone not convicted of a federal crime or directly engaged in interstate commerce.

It’s not necessary for a person required to register to cross a state line to fall victim to SORNA, and the newly proposed changes to SORNA will make that even worse. However, there is hope in going against this via the interstate commerce angle. In US v. Lopez Justice Thoma argued that allowing Congress to regulate intrastate, noncommercial activity under the Commerce Clause would confer on Congress a general “police power” over the entire nation. That seems to be exactly what the feds are doing with SORNA – enforcing police power over the entire nation.

The fact they are calling it a “Biden Administration” even before he is sworn in (if he ever will be) is pretty much Pro Biden.

Hambone, thank you, that was a big turn off to me, too. I don’t want to bring up politics, but Biden was the VP doing lots of international travel, and International Megan’s Law was written and passed under his watch, as well, Kamala seems to flip flop on crime to whatever suits her rise to power in the moment. The only good I see is if Bill Barr disappears so will his his SORNA upgrade. Politicians care about votes, and as we become one million strong we are a significant political force. Groups like ACSOL will use that political clout to change policies, but we can’t be silent.

@Eric,. I think the problem with assuming Bill Barr going away would do away with proposed SORNA changes assumes the the idea for these changes were initiated by Barr himself. The reality however is that the changes were likely masterminded by the SMART office and brought to Barr because Barr is the delegated authority who can make these changes. As such, whether or not Barr is there or somebody else, it’s probable that the SMART office will continue to push this agenda to whoever the AG is at the time. I think it would be wrong to assume that after Jan 20, if the proposed changes aren’t implemented any new AG would see fit not to implement them. In my opinion anyway the SMART office is trying to SELL the proposed changes to the AG and it’s all about money to make SMART bigger.

@Hambone, @Dustin, I agree and agree. I will add the L party is the only party that sees the registry for what it is as well. If people learned a little more about L policies they would not be so concerned if something like this were to happen. Personally I hope it does happen.

Sex offenders aren’t Republicans or Democrats their sex offenders plane and simple the only time we are acknowledge by these politicians is when they got their boot on our necks to show the public they mean business.
I wonder how many sex offenders still vote its hallreus how people forced to register still wanna be apart of society sex offenders need to wake up and realize Society hates you your unwanted and uninvited.

Good luck

Nothing wrong with people forced to register wanting to be part of society including placing a vote when they can. Having the ability to vote is a right one should partake in in this country whether politicians put boots on necks or not. Not every ballot entry is about a person running for office or position. You vote on those entries you want to, not every one has to be voted on. Go vote, people died for the right to do so in this country. (I won’t address the counting of the votes which is a different topic and for another forum.)

I’ve voted in every election I could since being done with my sentence. Even before that, I was actively involved in political action. I’ve made more phone calls that I can count to politicians and their staff, written hundreds of letters, and made many requests of others in my life to do the same.

When a politician gets a letter or phone call from someone, they don’t automatically look us up on the sex offender registry. There is no red light that comes on when I call their office to let them know. I make a well researched and well thought out argument and always try to include suggestions for alternative action if appropriate. If I’m calling about a problem, I always have a solution to suggest.

True – there are some that hate us or don’t want us around. Always will be that way. But, that is by no means “society” as you put it. I’ve found many more people willing to give me a chance, even after discussing my history with them, than I’ve had close the door on me.

While I agree that we are unwanted, I do believe we should be politically active. I have, alone, been able to change legislation in my state be contacting legislators (and actually have them respond positively). If that failed, I used the courts and have won.

Same here – have had success in getting small changes made to various pieces of legislation over the years, and even helped a little to get a larger bill stopped. I’ve found that a written letter delivered by mail still the most effective.

How noble of Justice Alito saying, “ he’s willing to consider a revisit of the doctrine, as long as it doesn’t involve those people.” Yup the registry is punishment and it’s a damn shame when justices don’t follow the constitution. Registry America’s experiment for the government to see how much they can get away with.

I’m not so pessimistic about Alito’s remark. Alito wrote the Packingham opinion, to include calling all the rules and restrictions imposed on registrants whose sentences were served “troubling.”

Judges, even USSC ones, aren’t immune from politics. It makes some sense to revisit the doctrine under a less emotional issue, then apply it (or not) to registry cases later.

I stand corrected and forgot about his opinion in Packingham; which is more optimistic. We probably have a better shot at getting the doctrine revisited by a less hot button issue. My mistake sometimes my emotions get the best of me.

If Biden is lucky enough to weather the contested election process and be inaugurated, he will have smooth sailing as they will simply pack the Supreme Court with at least four, and more likely six, more progressive justices by summer, which makes this entire article moot. (And if the court were as “conservative” as it is purported to be, then they would have at least heard the cases where the contested election process.)

Incidentally, a Biden (or, more likely by March, a Harris) Administration will wreak havoc on registered sex offender laws around the country, as criminal justice becomes more politicized rather than adhere to rigid constitutional authority. In short, justice by the mob will prevail; and guess who’s at the bottom of the list?

You guys reviving of doctrines is good in many ways or should one take the 4 Steps in Criminal Justice. 1. Were these laws written early enough to have been written by the eye wittness … Oh if its a computer ordeal than there is no eye wittness or is thei. In Physical ordeal their can be an eye wittness or even that victim yelling rape in some cases. 2. Were they (law, government, etc) colabratting with internal evidence or external evidence. 3 Did ths law change or did not change by some oversight with new laws. Even sex offenders have rights to speak up.

4. Last but not least.. do authorities have any reason to lie about anything, or be bias to a lie in these registry issues.Now that is a test for anything or doctrine or law. So what is the reason anyone lies… Is it for sex, money, or power or who is using the sword unjustly?

Now I have never liked to vote but Biden is here to stay. We all have our troubles in this registry and we can’t be judging out of context can we are we all just as concieted as the next person or who is using coercion, persuasion, or belittling one today.

Would love your thoughts, please comment.x