Will the Supreme Court gut SORNA or overturn the Gundy decision in the Loper Bright Enterprises v. Raimondo hearing?

Source: jdsupra.com 

One of the most significant areas of the law for businesses is administrative law. From questions about a new industry-specific regulation to marshaling a defense against enforcement proceedings, any entity that is subject to government regulations has an interest in developments in administrative law.

Key U.S. Supreme Court decisions in recent years have significantly cabined the role of federal agencies and opened the door to new avenues for challenging government regulation. Even more changes may be on the horizon.

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On 1/17/24 the Supreme Court will hear Loper Bright Enterprises v. Raimondo. This mentions it will be trying to overturn the Gundy decision in as far as administration power goes but maybe it could gut Sorna as well that would be ideal.

This talks about the Gundy decision vs this new approach on the administrative state.

I’m Not Law educated, and with that said I believe the courts are afraid to rule on what they and everyone knows is a violation of the United States Constitution as well as a violation of Human rights Because they allow Congress to pass the decisions on to the attorney general for how to implicate the law each state implicating the law to what they feel to be best for them, Then allow the Counties throughout the state to to inforce how they see fit.

Ok, I can see how reversing the decision in Grundy v US would alleviate Grundy of his retirement to register. However, here’s what what I’m seeing as to why Grundy might be overturned, Separation of Powers clause (SoP)?

It seems to me that the only concern the court has with Grundy, is the same concern they have with Loper Bright Enterprises v. Raimondo. That is the unlawful delegation of Congressional authority to an administrative authority in violation of the SoP. Am I missing something?

The court does not seem to be concerned with the retroactive nature of SORNA. The issue is that the decision to make it retroactive was unlawfully delegated to the US AG, in violation of the SoP. So what?

Court reverses Grundy as a violation of the SoP but not as a violation of Ex Post Facto nor as Cruel and Unusual. Legislature then passes a bill that makes SORNA retroactive back to the dawn of time. No SoP issue there. Also, no immediate Ex Post Facto nor Cruel and Unusual issue either. Might be later on, but reversing Grundy on an SoP issue does not create either. Right?

Reversing Grundy just requires Congress to recreate the requirements for Grundy to register as a Congressional act. Reversing Grundy on SoP grounds does not, as I see it, prevent Congress from doing this. The only issue, that I can see, that the court has with Grundy is that Congress delegated the authority to make this decision to the USAG instead of making it themselves. So now they just make the same decision, and in the long run nothing changes?

Am I missing something, or will reversing Grundy only result in Congress needing to pass a bill that creates the same situation we have today? Exactly the same as it is today? Maybe they also eliminate tiering as well? Make everybody inescapably lifetime registrants…even people that have already been relieved as a result of tier time limits? Nothing stopping then from doing that, right?

Just take the decree that AG Garland issued, and duplicate every single requirement as part of Congressional bill. Garland’s Imperial Decree dies, but the requirements and results live on?

SORNA could be challenged on SoP grounds? Get SORNA, in its entirety, struck down would be possible? Could SORNA be struck down because it includes an unlawful delegation of authority in violation of the SoP? That would be something, but again Congress could bring it back. Bring it back, and make it uglier?

Until the idea of a registry is struck down on Cruel and Unusual grounds, the nightmare will never really end. Even if SORNA is struck down for Ex Post Facto, no guarantee they don’t resurrect the idea with new legislation. Until the very concept of a registry is forbidden, the idea can just keep coming back as new legislation over and over. Maybe they choose not to, but nothing would stop them.

Am I missing something?

Here’s some additional discussion of the case from SCOTUSBlog:

Supreme Court to hear major case on power of federal agencies

I think this Supreme Court is likely to do away with the Chevron standard and thus kill SORNA as a collateral consequence.

I have often stated that the Supreme Court is our best bet (in respect to overturning SORNA), given the court’s (and Federalist Society’s) well-known opposition to and distaste of the “administrative state”. This court had an opportunity to do away with SORNA in the Gundy case, but Alito was too biased against PFR’s to give us a “win”, and although he wanted to rule against the Govt. in Gundy, he just couldn’t bring himself to do it.

But should the Supreme Court rule this way, thus eliminating SORNA, the ball will effectively be kicked back to Congress. Congress would be saddled with the task of writing/passing a law addressing the issue. And Congress may view this as a golden opportunity to “grandstand” on ‘sex offenders’ during an election year. Will they attempt to write and rush legislation through Congress to take advantage? Will they take the issue out on the campaign trail? As to creating new legislation, can you imagine what THIS Congress would come up with? The prospect sends shivers down my spine.

A possible ‘saving grace’ may be the timing. Typically, the court issues their opinions close to the end of their term (this would be June/July 2024). Congress would either be close to or actually on their summer break (by law, they have to break no later than July 31st). Congress wouldn’t return until September 9th, giving them about two months to write a bill which they could then campaign upon. Will such a short window rob them of this golden opportunity to “grandstand” on the issue?

And should this scenario unfold as described above (lots of ‘ifs’), and Congress indicate that they are willing to tackle this issue (write a bill) before the 2024 election, I think it would be wise for us to contemplate a concerted, concentrated, well-thought-out, and thoroughly funded opposition and lobbying effort in D.C. just as we do in California. Perhaps this may ‘slow down’ the process if at all possible. In any event, I feel the time is NOW as far as beginning discussions of such efforts. Should we not be prepared, we may never get another chance, and we’ll only have ourselves to blame.

Loper is 1 of 2 cases SCOTUS is hearing this term that takes on the administrative state. Sadly, the 2nd case alludes me at the moment. The conservative wing of SCOTUS full well realizes that Gundy was the perfect opportunity to kill SORNA however, they went the conservative route and waited for a totally unrelated case to come before them to do the job. I believe wholeheartedly they will strike down the government overreach.

Another case of interest is Williams v Washington which examines whether a plaintiff must exhaust all state remedies before proceeding to federal court. If anyone has ever filed a 2254, 2255 or a 1983 lawsuit federal judges consistently deny the petition if all state remedies have not been exhausted.
In most of these cases the state courts refuse to offer relief even on a strictly as applied basis because it will upset the case law of an individual state. The state AGs know this and they throw together a brief and submit it even if there is an argument of actual or factual innocence presented. If Williams prevails that helps streamline the appeals process that is heavily tilted against any registrant especially at the state level.

I want to think it will help us if the separation of powers issue is resolved in our favor. But the system is rigged.. if SORNA is declared an unconstitutional delegation then congress will rubber stamp the SORNA rules. My prediction, I hope it is incorrect.

I would rather fight one set of rules rather than one set combined with 50 other states interpretation of the rules. I think the conflict of the overlap between sorna and state law is ripe for litigation (as in ACSOL case)

One can listen to a recording* of the Hearings arguments here.

Supreme Court Hearing Live Oral Argument Audio

*It was live streamed, but the site is replaying the audio recording on a loop.

If folks had been paying more attention to events in Wisconsin over the last year, they wouldn’t have their hopes up on overturning Gundy. Because the Wisconsin Lifetime GPS case is another Gundy on a micro level. A state agency (Wisconsin DOC) asked for guidance from the former Attorney General on how to interpret the GPS lifetime registration statue by raising the question “does multiple convictions stemming from the same complaint, in the same court procedure, warrant lifetime GPS?” The former AG said yes, and the Wisconsin DOC ran with it. But they got their butts handed to them by the Wisconsin Supreme Court last May with the Corey Rector decision that said the DOC imposed lifetime GPS rule can only apply in separate court hearings. So what did the Wisconsin legislature do this month? Passed a bill to make this rule specific to “sex offenders.” And that’s EXACTLY what US Congress would do if SCOTUS decided to overturn Gundy. Plus Congress will have the public support to do so. They may not have had it to codify Roe v Wade into law, or pass a nationwide law against marriage equality. But nearly all 435 representatives & 50 senators will make sure there’s a scheme in place to monitor & make information public on people who committed child sex crimes. It may not be called SORNA, but it’ll be the same thing. Sorry yah!

Justice Ketanji Brown Jackson said “sooner or later we’re going to have to address the registry”.
This could be that moment.

Here is a video that’s a few years old that talks about the Gundy case an how it applied to non delegation doctrine.

Say SCOTUS does rule for these fishermen and begin the dismantling of the administrative state, what then?
How many cases will have to be filed in umpteen different jurisdictions to first say there are ex post facto issues at the federal level. Then these same types of suits will have to be litigated at state levels as state AGs will not accept their states laws as being unconstitutional.
I’m not trying to rain on anyone’s parade, but this is the reality of the road going forward. It is the same as the compelled speech case out of Arkansas. How many times does that issue have to be litigated?