Gundy v. United States
139 S. Ct. 2116, 204 L. Ed. 2d 522 (2019)
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Rule of Law:
A congressional delegation of authority to an executive agency is constitutional under the nondelegation doctrine as long as Congress provides an 'intelligible principle' to guide the agency's discretion. A statutory directive to apply a law to a specific group as soon as feasible, taking into account transitional and administrative challenges, constitutes a sufficient intelligible principle.
Facts:
- In 2005, Herman Gundy pleaded guilty under Maryland law to sexually assaulting a minor.
- In 2006, Congress enacted the Sex Offender Registration and Notification Act (SORNA) to create a comprehensive national system for sex offender registration.
- A provision of SORNA, § 20913(d), granted the U.S. Attorney General the authority to specify how the Act's requirements would apply to 'pre-Act offenders' like Gundy, who were convicted before the law was passed.
- In 2007, under this delegated authority, the Attorney General issued an interim rule specifying that SORNA's registration requirements apply in full to all pre-Act offenders.
- After Gundy was released from prison in 2012, he moved to New York but failed to register as a sex offender as required by the Attorney General's rule.
- As a result of his failure to register, Gundy faced federal criminal charges.
Procedural Posture:
- The United States prosecuted Herman Gundy in the U.S. District Court for the Southern District of New York for failing to register as a sex offender.
- Gundy argued that the prosecution was based on an unconstitutional delegation of legislative power under SORNA § 20913(d).
- The District Court rejected Gundy's constitutional claim, and he was convicted.
- Gundy, as appellant, appealed his conviction to the U.S. Court of Appeals for the Second Circuit.
- The Second Circuit, siding with the United States as appellee, affirmed the district court's decision, holding that the delegation was constitutional.
- The U.S. Supreme Court granted Gundy's petition for a writ of certiorari.
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Issue:
Does Section 20913(d) of the Sex Offender Registration and Notification Act (SORNA), which grants the Attorney General the authority 'to specify the applicability' of SORNA's registration requirements to sex offenders convicted before its enactment, violate the nondelegation doctrine by unconstitutionally delegating legislative power to the executive branch?
Opinions:
Plurality - Justice Kagan
No. The delegation in § 20913(d) of SORNA does not violate the nondelegation doctrine. When read in the context of the entire statute, its purpose, and its history, the provision does not grant the Attorney General unchecked legislative power to determine whether SORNA applies to pre-Act offenders. Instead, it provides an 'intelligible principle' by instructing the Attorney General to apply SORNA's requirements to all pre-Act offenders as soon as feasible, giving him discretion only to address the administrative and transitional problems of implementation. This is a limited, 'small-bore' delegation that falls well within the bounds of what the Court has consistently upheld, as Congress cannot be expected to legislate every implementation detail.
Concurring - Justice Alito
No. While he would be willing to reconsider the Court's lenient nondelegation jurisprudence in an appropriate future case, he cannot conclude that this specific delegation is unconstitutional under the current deferential standard. For the past 84 years, the Court has consistently upheld even broader delegations under the 'intelligible principle' test. Therefore, it would be 'freakish' to single out this particular statute for invalidation without first formally revisiting the underlying doctrine.
Dissenting - Justice Gorsuch
Yes. The statute violates the nondelegation doctrine by unconstitutionally delegating core legislative power—the power to write criminal law—to the Attorney General. The plain text of § 20913(d) gives the nation's chief prosecutor unfettered discretion to decide whether, when, and how SORNA's requirements apply to a half-million citizens, with no guiding principle from Congress. The plurality's 'feasibility' standard is a judicial invention not found in the statute's text. This delegation violates the separation of powers by allowing Congress to abdicate its constitutional responsibility to make difficult policy choices.
Analysis:
This case highlights the deep divisions on the Court regarding the nondelegation doctrine, a principle that has not been used to strike down a federal law since 1935. While the plurality opinion maintains the status quo of a highly deferential 'intelligible principle' test, Justice Alito's concurrence and the strong dissent from Justice Gorsuch signal that a majority of the Court may be ready to revive a more robust version of the doctrine. The decision leaves the modern administrative state intact for now but suggests future challenges to broad congressional delegations may find a more receptive audience, potentially leading to a significant shift in separation of powers jurisprudence.
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