Congress can’t punt its lawmaking responsibility to the attorney general

Source: 6/6/22

Congress makes the law; you are innocent until proven guilty; and everyone is entitled to due process of law. These are elementary principles of American government that we all learn in grade school. But they are threatened when Congress gives the U.S. attorney general unilateral power to write the criminal laws his office is charged with enforcing.

It shouldn’t be controversial to say that someone must not go to prison unless he broke a law written by Congress (or a state legislature). But Attorney General Merrick Garland evidently doesn’t see things this way. And, sadly, neither did the Congress that empowered Garland to make up his own criminal code on the fly.

In 2006, Congress passed the Sex Offender Registration and Notification Act (SORNA), which requires states to keep registries for those convicted of sex offenses. SORNA also makes it a federal crime for an offender to fail to register with his state.

But Congress did not want to wade into the messy details of what constitutes a “sex offense,” or what the registration requirements should be. Instead, Congress told the attorney general to issue rules deciding the “time and manner” of registration, the “information required,” and who must register. 

To understand why this became a problem, consider the new rules that Garland issued last year. According to these rules, anyone who has been convicted of a relevant crime is required to register, even if their conviction was expunged. They must register in person, at least once a year, and provide local police with information that includes their Social Security number, internet usernames, work or school information, any international travel, passport and vehicle registration, and professional licenses.

My client — who shall remain anonymous here — was convicted in 1996 of a misdemeanor offense for inappropriately kissing a 16-year-old when he was 23. He was sentenced to probation and required to register as a sex offender.

He took his offense as a wake-up call. He completed hundreds of hours of therapy, obtained college degrees, and did everything he could to become a productive and valuable member of society. By 2002, his conviction was expunged by the State of California, in part because the registration requirement no longer made sense for someone like him. In 2010, a judge issued a certificate of rehabilitation recognizing my client’s extraordinary turnaround. According to California, not only does he not need to register as a sex offender, but he has no criminal history and is considered to be fully rehabilitated. California won’t let him register because it doesn’t consider him to have a conviction.

That doesn’t matter to the U.S. attorney general. Under Garland’s rules, my client must register once again, and if he doesn’t, he is guilty of a federal crime.

Read the full opinion


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I can not believe this opinion article written by an attorney involved in the lawsuit was published in The Hill. You can’t get much more exposure than that in DC. The Hill is a respected source of information in DC. Awesome!

So the new ruling states, if you’ve ever been convicted of a sex crime you must register. So, does that also include people that thier registration has timed out? Like if you had to register for 10 years, and you no longer have to register, would you have to register again? This is really interesting, as this could affect many people if so. Or am I missing something?

First off, I find it so ridiculous that someone who kissed a 16 year old inappropriately would be considered a sex offender. Plus, he completed 100 of hours of therapy which seems like overkill to me. It does not sound as if he had some sort of addiction, but that is not my place to determine. Secondly, it is mentioned again that California won’t let him register because it doesn’t consider him to have a conviction. Is that because of the 1203.4 expungement? If so, how is that that those with a 1203.4 still have to register in California. Who wrote that into law? Someone who does not have the legal authority do so?

Oh wow! The Hill! 👍🏻 ‘Glad he wrote this opinion piece and is getting the word out!

(I live in California and my registering agency does not collect Internet usernames, never has. So I guess I am automatically guilty and it’s just a matter of time before the U.S. Marshals come knockin’ on my door with a Federal FTR arrest warrant! 🤷🏻‍♂️)

You did good Janice. its not every lawyer that understands about due process. I never even had a due process but a type of a fix as in the arresting officer said to me in confidence if I plead guilty I will talk to the judge and the proseciter for you and everything would be alright. Thin he gives me that “wink”
When it was all said and done I got probation. Guess that’s one way for Government to save face and a trail by jury. I just wonder if their where any registrants on that jury selection that day…. something to think about. Government never amazes me.

It never ceases to astound me. Fact is WI registration regime Act was put to Congress by our then A.G. in the spring of 1995. Naturally he needed Congressional sponsors and votes, but it’s in the record that he brought the bill forth. Resulting in Act 98(1995) &WIStat.175.45a’b. b. containing the ex post language. It is unclear when the date December 25 1993 became the date in the bill, as it was passed I think without an actual effective date in it.

So while he can’t make law..he can certainly write a bill. Naturally any bill he did submit could have serious personal implications. Thus the punt. The A.G serves the President, and are often discharged after a change in administration.

This is why we have 3 branches of government and the ‘Separation of Powers’ clause.
Congress has empowered the executive branch to be legislative as well which is unconstitutionally in violation of the ‘Separation of Powers’ clause and if the Supreme Court of the US has any backbone at all they will uphold that clause and remove the so -called power of the attorney general to make laws on his own.
Otherwise, the ‘Separation of Powers’ clause is no longer enforceable and we can expect further breaching of each governmental branch onto another.

Punt! I love how the word is used in speaking about this A.G. and this law making responsibility. Sounds like a quarterback call. Well lets just punt the ball and let the others fumble for it as we have SORNA backup and other means. Talk about justice taking a holiday.
While I’m sure many should stick to the foundational laws (commandment law). where is the fairness of right or wrong in many of these duress types of issues of the registry. Sure the A.G. can recommend or call any play but whos’ playing ball and upsetting the balance of justice. Who is beguiling who in these enticing overloads of justice. Talk about a courtroom rape drama. These government people are rapping most of you all over the coals To me many of you all are getting raped out of truth and justice and your due process and yes government does make mistakes and/or errors just like everybody else.

I don’t understand how I was free to enjoy all my rights with out reoffending I’ve been out of prison for a crime 38 years 12 years later I was incarcerated for failing to register ( but I had been doing the same thing over 12 years ).. Then I lost all my rights my job my house put on a register for life.worth out due process. And even nope the DA passed my case to the public defender and they should they won’t represent me. Yes I’ve had custody sole and PHYSICAL CUSTODY of my daughter in 1991 stay out of prison with out any serious or violent offense.. Never had a risk assignment or declared a violent sex or high risk sex offender … Until the AG was giving the power to elect all offender to register and put on public displayed .. Which is the same treatment as in Jim Crow. Case.

Well I looked at the PA state police website and they haven’t changed the wording on their website so. I don’t think they can force all states to implement this, I think they k ow better because of the financial burden they have gone through with all the lawsuits they have lost and the money they will loose, which will come again if they decide to go along with the scheme.

I wonder if anyone has ever looked into what other categories of law Congress did this on. If it was only for sex offenses that would be an interesting point bring before a court. On the other hand if it was for other things as well, but not everything that could be just as big of a problem. Any branch of government with the power to do something can’t merely half do something then pass off the rest of the responsibility to another branch because the first branch “didn’t want to get involved with the details”. Imagine this happening on any other job. How about a doctor sending a patient with intestine issues to a plumber? That’s human plumbing right? It would never be acceptable.

Was looking at the twitter feed from the article, looks like twitter doesn’t appreciate the hill putting the article there for comments because they removed it, I made a few comments on the article but, they were all removed as well. Guess they don’t believe in the first amendment, or they don’t want to be a vehicle in ending sorna.