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In addition, as Gundy notes, there are “hundreds of thousands” of pre-SORNA offenders now covered by the attorney general’s guidelines — as many people, he points out, as live in Wyoming — and the court’s decision will determine whether or not they will face criminal liability for failure to comply with SORNA’s registration requirements going forward.
Beyond the law of sex-offender registration, the approach the court takes in could have repercussions across the law of the administrative state.
The government notes that since SORNA was enacted, 4,000 sex offenders have been convicted of “federal sex-offender registry violations,” and “many of those offenders who failed to register would go free” if the court were to invalidate the delegation in SORNA.Broad delegations of authority to the executive branch form the foundation of modern regulatory government.But given Ginsburg’s dissenting vote in , Justice Clarence Thomas’ recent opinions on nondelegation and administrative power, and Justice Neil Gorsuch’s dissent from denial of rehearing en banc in a U. Court of Appeals for the 10th Circuit case involving SORNA, there is a real possibility that the court will issue a ruling that revives the nondelegation doctrine from its 80-year slumber.By issuing an interim rule, the attorney general had made SORNA’s registration requirements applicable to pre-SORNA offenders, and Billy Joe Reynolds claimed this interim rule was invalid. At the Supreme Court, Reynolds challenged that logic, contending that SORNA did not of its own force apply to pre-SORNA offenders and that a valid interim rule was therefore necessary to subject him to the registration requirement and its enforcement provision.The Supreme Court agreed with Reynolds and reversed in a 7-2 opinion by Justice Stephen Breyer.
That seems to me sailing close to the wind with regard to the principle that legislative powers are nondelegable.” The prudent course, Scalia urged, would be to interpret the statute narrowly so that it steered clear of the constitutional shoals of the nondelegation doctrine, the principle that Congress cannot transfer its power to legislate to another branch of government.