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…

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SCOTUS: Petition Maryland v. Rogers

Maryland v. Rogers addresses whether sex offender registration is “punishment” within the meaning of the Sixth and 14th Amendments. Jimmie Rogers pleaded guilty to a Maryland criminal law that provides that a person may not knowingly “take or cause another to be taken to any place for prostitution.” Because the victim’s age was not an element of the offense, the prosecution did not present evidence of her age. However, the Maryland Department of Public Safety and Correctional Services determined that the victim was a minor. After Rogers’ release from prison,…

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Janice’s Journal: Mourning the Loss of U.S. Supreme Court Justice Ruth Bader Ginsburg

After a long battle with cancer, U.S. Supreme Court Justice Ruth Bader Ginsburg died yesterday. She and her wisdom will be missed profoundly. As a civil rights attorney, an appellate court judge and a U.S. Supreme Court justice, Ginsburg could be counted on to understand the plight of the underdog. She also understood that being an underdog does not mean you have no rights. Ginsburg is best known for fighting for, and then protecting, the rights of women. She is less known for her position on registrants. Yet buried in…

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SCOTUS: Justices Nix Heavy Sentences for Repeat Sex Offenders

In an opinion that aligns Justice Neil Gorsuch with his liberal colleagues, the Supreme Court overturned a law that imposes heightened punishments on sex offenders who are caught with child pornography. “Only a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty. That promise stands as one of the Constitution’s most vital protections against arbitrary government,” Gorsuch wrote for the plurality Wednesday. “Yet in this case a congressional statute compelled a federal judge to send a man to prison for a minimum of five years without empaneling a…

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SCOTUS: Gundy v. United States – Affirmed

Judgment: Affirmed, 5-3, in an opinion by Justice Kagan on June 20, 2019. Justice Kagan announced the judgment of the Court and delivered an opinion, in which Justices Ginsburg, Breyer, and Sotomayor joined. Justice Alito filed an opinion concurring in the judgment. Justice Gorsuch filed a dissenting opinion, in which Chief Justice Roberts and Justice Thomas joined. Justice Kavanaugh took no part in the consideration or decision of the case. Issue: Whether the federal Sex Offender Registration and Notification Act’s delegation of authority to the attorney general to issue regulations…

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How a Sex Offender’s Case Before the Supreme Court Could Bring Down the Administrative State

___________ was out on supervised release in 2004 from a 1996 crack distribution conviction when he met an 11-year-old girl. He served her cocaine and raped her. As soon as Monday, the Supreme Court will rule on his fate. While court-watchers have been focused on other headline issues the court may decide this term—including cases on abortion, citizenship questions on the Census, and partisan gerrymandering—the ______case could mark a watershed of its own. At issue isn’t the lurid crime itself, but just how much power Congress can delegate to the executive…

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SCOTUS: Court poised to rule for challenger in dispute over constitutionality of sex-offender law

This morning the Supreme Court heard oral argument in a dispute over the constitutionality of a federal law that requires convicted sex offenders to return to prison for at least five years – and possibly for the rest of their lives – if a judge finds that they have committed certain crimes. The defendant in the case, an Oklahoma man who served time for possessing child pornography and was then sent back to prison after he violated the terms of his supervised release, argues that the law violates his right…

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Why Should Feminists Be Against the Sex Offender Registry?

In October, the Supreme Court heard a case that was painfully ironic, considering the Kavanaugh hearings the nation had just been subjected to: a challenge to the United States’ extremely restrictive sex offender registry laws. While opinions on the case Gundy v. United States, which challenges the Attorney General’s ability to retroactively impose registry requirements, have yet to come out, debate around sex offender registries is particularly important in the wake of #metoo. Established in the ‘90s following several high-profile rapes and murders of children, the sex offender registry used…

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SCOTUS: Who Gets to Define the Crime?

Agencies have to interpret statutes to carry out the work of the administrative state. But in the hands of federal prosecutors, does interpretation amount to defining the crime itself? Herman Gundy believes that is what happened to him. In a case before the U.S. Supreme Court this term, Gundy v. United States, Gundy is challenging his conviction for failing to register as a sex offender under the Sex Offender Notification and Registration Act (SORNA). Failing to register is a federal felony. Full Article

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The ‘Frightening and High’ Factoid About Sex Offender Recidivism Still Stalks Courts Across the Land, Completely Untethered From Actual Numbers

Arizona Supreme Court overturned a state ban on bail for people accused of sexual assault “when the proof is evident or the presumption great,” concluding that the categorical exclusion violated the constitutional right to due process. Critics of that decision are urgingthe U.S. Supreme Court to take up the case, Arizona v. Goodman, and their arguments highlight the continuing influence of misconceptions about the “frightening and high risk of recidivism” among sex offenders. Full Article

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States Can’t Make Up New Laws to Punish Old Conduct Just Because They Call Them “Civil”

Article I, Section 10 of the Constitution provides that “[n]o State shall … pass any … Ex Post Facto law.” The Ex Post Facto Clause was incorporated into the Constitution to prohibit states from enacting retrospective legislation, which the Framers believed to be inherently unfair and contrary to the principles of limited, constitutional government. Despite the Framers’ clear aversion to retrospective lawmaking, the Supreme Court has since adopted the view that states are uninhibited from enacting retroactive civil penalties. So long as a retrospective law contains a discernable legislative purpose…

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SCOTUS: Justices face nondelegation challenge to federal sex-offender registration law

Argument Preview: Congress enacted the Sex Offender Registration and Notification Act. One provision of SORNA created a requirementthat a convicted sex offender register with every jurisdiction in which he resides, works or studies, as well as in the jurisdiction in which he was convicted. Another part of SORNA, its criminal enforcement provision, made it a crime for a convicted sex offender subject to the registration requirement to fail to register or to keep his registration information updated if he travels across state lines. But what about sex offenders convicted before…

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MI: Treatment of sex offenders depends on whether they’ve challenged rules

Eight months after the U.S. Supreme Court effectively upheld a decision saying parts of Michigan’s sex offender registry law — one of the toughest in the nation — were unconstitutional, thousands of former sex offenders who thought they’d be off the registry by now, or facing less severe restrictions, have seen no changes. Full Article

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New Civil Liberties Alliance to Supreme Court: “Don’t let the Attorney General write criminal laws”

[news-journal.com – 6/1/18] The Constitution vests all legislative powers in Congress, and thus bars Congress from splitting its authority with an unelected executive official. Nonetheless, when Congress in 2006 wrote the rules for registration of sex offenders in the Sex Offender Registration and Notification Act (SORNA), it gave a blank sheet, with no guidelines, to the Attorney General to create registration rules for past offenders. This executive lawmaking is being challenged at the U.S. Supreme Court in Gundy v. United States. Although the particular case concerns registration rules for sex…

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This Case Could Help Prevent Congress From Outsourcing Its Power

[heritage.org 3/8/18] Gundy v. United States could result in a ruling that would challenge Congress’ tendency to delegate lawmaking authority to executive offices. Key takeaways: SORNA established a comprehensive system of registering sex offenders and requires offenders to register in the jurisdiction where they live, work, or go to school. In practice, however, Congress delegates quite a bit of authority to executive branch officials and administrative agencies. When Justice Neil Gorsuch was on the 10th U.S. Circuit Court of Appeals, he dissented from the court’s denial of an en banc…

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