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The Sex Offender Law That Could’ve Broken the Government

Herman Gundy was a convicted sex offender who failed to register as one in Pennsylvania and New York, states in which he traveled and resided. Under the Sex Offender Notification and Registration Act of 2006, he had to register, so he was sent to prison again for failing to do so. Gundy v. United States was a 2019 Supreme Court case that dealt with the “nondelegation doctrine,” the practice that prohibits Congress, well, from delegating its legislative abilities to executive administrative agencies such as the Department of Justice or private organizations, etc. Justice Elena Kagan writes in her opinion for the case, “Indeed, if SORNA’s delegation is unconstitutional, then most of Government is unconstitutional.” Full Opinion Piece

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The Government SUCK! These mofoers know that retroactive punishment is “NOT” The American Way !

Does Gundy, under the new Tiered Registry Law, give the California Department of Justice ultimate authority to place people into tiers?

If so, this is incredibly troubling. Also troubling is that politically speaking, even though I tend to lean left, why did the “liberal” wing of the Supreme Court not rule in favor of Gundy?

It seems counterintuitive that the “conservative” justices ruled in favor of Gundy.

Practically speaking, and from a long-term perspective, it’s incredibly troubling that the liberal wing of Supreme Court would lead us to believe that putting a society’s well-being in the hands of bureaucrats, “scientists,” and “empirical science” trumps the Constitution, as well as the legislative bodies and committees that examine strictures that may have control over the individual — not just the “sex offender” — life.

I just have a bad feeling that Gundy has the power to make the Tiered Registry Law a living hell, especially with what seems like implied power that it gives the California Department of Justice and its corrupt, career-driven, Assistant Attorney Generals and bureaucrats.

First I’d argue that liberals and conservatives alike are not on the side of sex offendets. Regardless of this, I believe the liberals didn’t look at it from the perspective of it being a registrant case but rather the issues that it would cause with government as a whole should it be determined that the legislature can not delegate this rule making ability to someone in the executive branch. Delegation is something liberals generally support and they aren’t going to rule against that. The conservatives on the other hand are generally more against this legislative delegation but don’t want to support this idea when it comes to registrants.

Very keen perception and insight in your post. Delegation by default adds to complexity while simultaneously decreasing accountability to the people.

Not wanting to deal with it in regard to RCs was pretty much what Alito said in his POS filing. He is willing to look at non-delegation but not in this instance. What a worthless bag of flesh.

@Uh Oh

For what it’s worth … My opinion is the DoJ does not have “Ultimate authority” to decide tier designation.

DoJ was tasked with interpreting the legal codes as defined in the law. The law itself has ultimate authority. If there are codes from federal or other states the DoJ tries to fit as best as possible to a comparable CA code.

Even then an individual can petition the courts if one finds/believes the DoJ has made a mistake.

The DoJ is not empowered to move codes from one tier to another for example.

While I agree with your statements. The USDOJ in 2012 re tiered 5-6 codes into different tiers from where the were in 2006. 18 USC 2243 went from II to III in the eyes of the DOJ and they made the tribes change their laws to match, or lose funds.

However, the Circuit Courts have as late as 2019 stated that 18 USC 2243 is Tier II, and ignored the USDOJ. So, a bunch of 18 USC 2243 offenders are Tier III because USDOJ mandated the change for “substantial compliance” yet the Courts when looking at FTR classify it Tier II.

I dunno bro. Seems like the DOJ is putting a lot of people in “To Be Determined,” or putting people in higher “tiers” than they actually should be, and not following the actual text of SB 384.

At least from what I’ve seen and heard…

Non delegation theory is a scotus affirmation based in separate of powers clauses in our constitution. Gundy complained about congress passing their duty onto the administrative.

A better non delegation complaint case perhaps would highlight the impermissible Congress’ legislative choice to grant the Administrative the general duty of the judicial- the doling out of DOC COMMITMENTS or other civil obligations on the basis of crimes.

The reason non delegation has diminished is it slows gov response to the instant threat. We see that concept in action, for example, in the response strike by US military forces in Syria yesterday.
That strike was an act of war. Declaration of War however is a congressional authority under our constitution. Congress has indeed exponentially expanded Admin agility to take war like action, with the caveat of notice to house and Senate leadership.

Still, it is one thing to delegate ones own authority to another branch but to delegate an authority not within your own to manage is another.

Very well written article. Agree ex post facto in any form is wrong and unconstitutional despite Reynolds. If SCOTUS can carve out loopholes, exceptions, or prong tests at any time they desire, then we as a country are really in a world of hurt and have been since they started doing it, e.g. Calder v Bull IMO.

This article has the comment posting by Rudy101 I erroneously mentioned in another posting I provided this AM.

I thought conservative judges interpret the Constitution as originalists; while liberal judges interpret the Constitution as being a living and breathing document.

The government has gotten to big and bureaucratic officials write the bills; while giving congress only hours to read before voting.

Moratorium on rent?

A Fed judge outright declared unconstitutional the rent moratorium put forth by CDC agency. Obviously the Texas’ Congress had made no statute laying the groundwork for such gov action by the agency via the delegation scenario as is in Herman Gundy case. The center for disease control utilizing the covid situation to once again expand federalist power into the day to day of individuals. Sound familiar?

Would love your thoughts, please comment.x