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Supreme Court Fissures Over Executive Power Doctrine

Law360, Washington (October 2, 2018, 4:13 PM EDT) -- An eight-member U.S. Supreme Court splintered Tuesday over how much authority the U.S. Congress can delegate to the executive branch in the closely watched case of a convicted sex offender, with newly influential Chief Justice John Roberts appearing conflicted over the question.

Hearing arguments in Gundy v. U.S., members of the court’s conservative and liberal wings did battle over the constitutionality of the Sex Offender Registration and Notification Act for an hour Tuesday morning. Petitioner Herman Gundy has said the law violates a separation of powers doctrine known as “non-delegation” because it gives the U.S. attorney general the discretion to decide whether it should apply to those convicted of sex offenses prior to its passage.


Justice Neil Gorsuch, a critic of government overreach, left little doubt that he agreed.

“I'm having trouble thinking of another delegation in which this court has ever allowed the chief prosecutor of the United States to write the criminal law for those he's going to prosecute,” Justice Gorsuch said. “We say that vague criminal laws must be stricken. We've just repeated that last term. What's vaguer than a blank check to the attorney general of the United States to determine who he's going to prosecute?”

The force of Justice Gorsuch’s “question” prompted a quip from Justice Ruth Bader Ginsburg. “That’s your argument stated very concisely,” she said to laughter in the courtroom.

But Justice Elena Kagan offered an equally spirited counterargument. Throughout the hearing, she suggested that Congress did not violate the non-delegation doctrine because it provided guidance to the attorney general that it should try to register those who were convicted before SORNA to the extent feasible.

“There is some language in the statute that supports the government's reading, that this is a statute that basically says ‘register all pre-act offenders as far as possible, with some understanding that there are feasibility considerations that may make immediate registration of everybody impossible,” Justice Kagan said.

Justice Stephen Breyer and Justice Sonia Sotomayor also wondered if using the non-delegation doctrine against SORNA would put “300,000” similar regulations in jeopardy. ‘We'll be busy in this court for quite a while,” Justice Breyer said.

Chief Justice Roberts, now considered the court’s new ideological fulcrum after Justice Kennedy’s retirement, appeared conflicted on the issue as he interrogated counsel for Gundy and the federal government.

The chief justice asked New York federal defender Sarah Baumgartel, who is representing Gundy, whether SORNA would be unconstitutional if it said that the law applies to those who were convicted before its passage, but that the attorney general could “waive the requirements of this act when he determines that it's not feasible to apply them?”

Baumgartel answered that such a law would be “likely constitutional,” prompting Chief Justice Roberts to point out that the "consequences are the same" regarding "who's making the decision."

But Chief Justice Roberts also grilled Deputy Solicitor General Jeffrey Wall, who argued for the federal government. After Wall analogized the attorney general’s discretion over SORNA to the Internal Revenue Service’s authority over tax filings, he objected.

“This is different in the sense that the attorney general is deciding what law applies, not whether a particular act or a particular exercise in commercial activity is covered by an act that certainly applies in a general sense,” he said.

The case has major implications for executive power. For years, conservatives like Justice Gorsuch have sought to bring back the non-delegation doctrine to curtail regulatory agencies. The doctrine hasn’t been used to strike down a federal law since the 1930s. Because it is still technically on the books, the doctrine has been called a “shotgun behind the door” tempering Congress’ inclination to pass laws with broad delegations of power.

Gundy’s appeal gives the court the opportunity to pull the trigger.

Herman Gundy was sentenced to time served and five years of supervised release because he failed to register as a sex offender after he was transferred from a federal prison in Pennsylvania to a halfway house in New York.

On appeal to the Supreme Court, Gundy has argued, among other things, that SORNA violated the non-delegation doctrine because it gave the attorney general the decision of whether the registration requirements should apply to the roughly 500,000 people whose sex offense convictions occurred prior to the law's enactment in 2006. Gundy was convicted of giving cocaine to an 11-year-old girl and raping her in October 2004, according to the government.

“SORNA's delegation provision grants unguided power to the nation's top prosecutor to expand the scope of criminal laws and to impose burdensome, sometimes lifetime registration requirements on hundreds of thousands of individuals,” Baumgartel, Gundy’s attorney, said in her opening statement Tuesday. “It combines criminal law-making and executive power in precisely the way that the Constitution was designed to prohibit.”

Wall delivered a lengthy defense of the SORNA, saying that the statute provided significant guidance that the attorney general was to implement its sex offender registration requirements for those “pre-act” offenders to the extent that it was feasible.

“This falls well inside a number of the delegations that the court has looked at, because here it's not as if there is some standard in the statute like public interest or fair and reasonable rates, where the executive is really doing the fleshing in,” he said. “Here, Congress set forth all the rules. It made judgments about all the requirements.”

Gundy is represented by Jeffrey L. Fisher, David T. Goldberg and Pamela S. Karlan of the Stanford Law School Supreme Court Litigation Clinic, and Sarah Baumgartel, Yuanchung Lee, Barry D. Leiwant and Edward S. Zas of the Federal Defenders of New York Inc.

The United States is represented by Noel J. Fancisco, Brian B. Benczkowski, Jeffrey B. Wall, Jonathan C. Bond and Sonja M. Ralston of the U.S. Department of Justice.

The case is Gundy v. U.S., case number 17-6086, in the U.S. Supreme Court.

--Editing by Dipti Coorg.

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Case Information

Case Title

Herman Avery Gundy, Petitioner v. United States


Case Number

17-6086

Court

Supreme Court

Nature of Suit

Prisoner Petition

Date Filed

September 22, 2017

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