Nearly 20 years ago, Congress passed a law requiring people convicted of certain sex offenses to register with their states. But Congress also left it entirely up to the U.S. Department of Justice, a part of the executive branch, to write the rules governing who must register, how often, what information they must provide, and when they have broken the law. But the DOJ’s job is also to criminally prosecute people who fail to follow the same rules the agency has written. It is unconstitutional for the nation’s chief prosecutor to both write the law and enforce it. .
John Doe* enlisted in the Marines at 17 and was honorably discharged eight years later. When he was a 23-year-old service member in 1996, he had a sexual encounter with a 16-year-old girl that, while not sexual intercourse, broke California law against sexual activity with someone under the age of 18. He pled guilty to a misdemeanor and was sentenced to three years’ probation. He was also required to register as a sex offender with the State of California.
Otherwise, John was living on the straight and narrow. He married and had two children. He worked hard, becoming a successful businessman and an active member of his church and community.
By 2012, the State of California had recognized John’s rehabilitation by completely expunging his record and issuing a “Certificate of Rehabilitation.” Under California law, he no longer has a criminal record and isn’t required to register as a sex offender.
But in December 2021, the U.S. Attorney General issued a new rule governing sex offender registration that would require John to re-register as a sex offender—even though, as far as California is concerned, he no longer has any record at all. In fact, California won’t allow John to register, yet the new rule still presumes he’s guilty of a federal crime for failing to do so.
The Attorney General shouldn’t be able to unilaterally impose a rule that places tremendous burdens on people like John. By re-registering, John would have to provide the state with personal information, including all internet usernames, robbing him of the ability to protest the government’s action anonymously. He’d also be forced to stop going to his children’s schools and might even have to move. Perhaps even worse, because he can’t register as the federal government has demanded, he faces the prospect of criminal prosecution at any time.
When Congress passed the Sex Offender Registration and Notification Act (SORNA) in 2006, it gave the Attorney General unrestrained authority to create new registration requirements. The Attorney General is exercising that authority without input or direction from Congress. This is a clear violation of the principle of “non-delegation,” the idea that Congress cannot delegate its lawmaking power to the executive branch.
Now the Attorney General has used this power to put John Doe in a Catch-22: forcing him to register as a sex offender, for which he has no mechanism to register in California, and for a crime that the state has expunged from his record.
Represented by the Pacific Legal Foundation (PLF) free of charge and joined by the Alliance for Constitutional Sex Offense Laws (ACSOL), John is challenging Congress’ unconstitutional delegation of authority to the Attorney General to issue SORNA requirements—a clear violation of the non-delegation doctrine and separation of powers.
In 2019, the Supreme Court declined to reinvigorate the non-delegation doctrine in a case called Gundy v. United States. However, the Court avoided ruling on the constitutional issue, while several Justices mentioned in dissent that SORNA is ripe for a constitutional challenge. This case could present them with an opportunity to revisit that decision.
*Our client is using the pseudonym John Doe to protect the life and reputation he has built in the decade-plus since his record was fully expunged.
Related links:
See complaint document below or download here
This organization has stated during its monthly meetings that those who have an expungement, CoR and relief from registry, for the purposes of this new law, SORNA did not apply because there is no conviction. Now we have this lawsuit challenging SORNA based on someone who has no record and no registration requirements and NOW you’re saying he has to register at the federal level and is out of compliance?
I’m really getting fed up with the conflicting information. Which is it?
if it goes to trial will we be able to sit and listen to the trial and can we be updated on when where it takes place
I foresee this case being dismissed for failure to state a claim. If it was a misdemeanor he would only be required to register for 15 years, max, under SORNA. Meaning his federal duty expired in 2014; thus, he suffers no injury here and has no controversy.
Am I missing something here?
Perfect! How do we donate for this specific case?
Very exciting!
Could go much further since its Fed. AG G.Merritt should expunge doj’s mess they made last Admin.
GO ACSOL!
Let them have it! Both barrels of justice!
The PLF almost has it right this time. Yes, it is an unconstitutional delegation of authority for congress to delegate its law-making ability to the U. S. Attorney General but let’s not beat that one to death at the Supreme Court level. What they keep missing is another unconstitutional issue in Article III. According to U. S. Supreme Court decision in Plaut v. Spendthrift Farms, Inc., it is forbidden to have congress/executive branch employees, revisit, modify, change, annul, a previously closed Article III court case. For example: anyone convicted of a sex offense prior to AWA becoming law and who is post convicted of failure to register as a result of the language in AWA and the federal register, and who already possesses a previously closed Article III court case, the Plaut decision forbids it from being reopened. AWA is simply forbidden from reopening a case. So essentially, someone who is post convicted of failure to register, and who is originally convicted of a sex offense prior to AWA becoming law, can beat that case if they raise Plaut v. Spendthrift Farms, Inc. It’s against the U. S. Constitution for the legislature to modify a court case that has been closed, simple as that. Look at the Gundy decision where Justice Gorsuch dissents, you will find that he referenced Plaut v. Spendthrift Farms, Inc. I suggest that the PLF folks fight this on both fronts concerning their challenge against the USAG and most importantly, raise the issue of Plaut to claim a constitutional violation of Article III.
🥳🎉 I’m certainly very excited about this lawsuit! I hope they will record (and make publicly available) the oral arguments when the lawsuit gets to that point. 🤗😁👍🏻
Of all the formally criminalized sexual activity that is now considered perfectly normal and acceptable these days (no need to get into specifics) if you are a young man in your early 20s attracted to a young woman who is 16 you have to register as a SEX CRIMINAL if you act on that natural and “normal” attraction.
That has always been ridiculous on the face of it. I understand the reasons for the law not wanting older more sophisticated guys to take advantage of young girls. But the vast majority of the time they are meeting each other in some natural social situations, such as at church or an ethnic event or some other innocent activity, as opposed to a man who is out there in a predatory sense specifically looking for young girls to “be with”.
If a government feels such laws are necessary to protect girls, there should at least be a one-time grace., taking into account the totality of the situation that even if it results in a conviction for certain “activity”, one should not have to register as a SEX CRIMINAL under those circumstances.
Especially when one takes into consideration that 18 is not a universal minimum norm in the vast majority of civilized countries for young people being able to consent to sexual relations.
But yes, whatever the laws are, don’t break them, but neither does one need to be registered as a sex criminal in all such situations. THAT is a crime. As is what the federal government is doing to John Doe here and many others like him.
If a state says we are done with you and your punishment and your registration, since they are the ones that imposed that in the first place, they should be the ones that have the say in the matter in the second place. Not the federal government.
Somebody should file a lawsuit over this… Oh wait, they are. GOOD!
Go get em’!
👍🏻 Here’s the story!!:
REASON: The DOJ Says a Man Whose Record Was Expunged Still Must Register As a Sex Offender, Which Is Impossible
I personally want to see the injunction fly. That will create doubt that the system works, which it doesn’t.
In Iowa, I have registered in 3 counties and the sheriff’s have all answered every question I have asked in 3 different ways, or just say they don’t know. And I am not going to jail because I was told something one place and different in another.
Part of the reason I bring this up, is that, by a landslide, the Gov signed a “alteration” to modifications.
Meaning that they changed when you can apply to be removed, now, to cooperate with federal SORNA. They did add that if you have been on long enough that you can still fall under the old modification dates.
Is this an Article III type thing or no?
Btw, and I kid you not, in their discussion notes, they wanted to fall under the JAG-Bryne grant because it would give the state 100k more dollars to spend on DRUG TREATMENT classes.
Anyway, go get em!
If registration is regulatory, not punitive, why can’t anyone register themselves voluntarily? Why should a conviction for any number of offenses be a requisite?
Stupid questions, I know…
This Government is off its rocker. Its killing itself a little every day.
Think about this,that 21 day notice for example in my opinion interferes with my travel and that my friends is another upper cut to our so called right to free travel. What there
doing to this guys is absolutely observed. We all owe ACSOL and the ACLU very much thanks !