Supreme Court Decides Gundy v. United States

On June 20, 2019, the Supreme Court of the United States decided Gundy v. United States, No. 17-6086, holding that Congress’s delegation of authority to the Attorney General to specify offenders to whom the registration requirements of the Sex Offender Registration and Notification Act (SORNA) apply and to prescribe rules for the offenders’ registration is constitutional and does not violate the nondelegation doctrine.

SORNA, 34 U.S.C. § 20901, et seq., establishes a national system for the registration of people who have committed sex crimes and crimes against children. It defines a “sex offender” as any person convicted of an offense involving a sexual act or sexual contact, or certain offenses against a minor. And SORNA requires a sex offender to register before the completion of his or her sentence of imprisonment for the sex offense (or within three business days of sentencing, if not sentenced to prison) by submitting certain information to authorities in every state he or she resides, works, or studies. A sex offender who fails to register or keep the registration current is subject to criminal penalties including lengthy prison terms.

People convicted of sex offenses before SORNA’s enactment presented a practical problem. Many of them were not registered at the time of SORNA’s enactment (either because pre-existing registration laws did not cover them or they had avoided registration), while others could not comply with the registration requirement because they had already completed their prison sentences. For those people (called pre-Act offenders) SORNA gave the Attorney General of the United States the authority to “specify the applicability” of SORNA’s registration requirements to pre-Act offenders, and to “prescribe rules for the registration of any such sex offenders … who are unable to comply with” the initial registration requirement. Under that authority, the Attorney General issued a rule specifying that SORNA’s registration requirements apply to all pre-Act offenders.

Herman Gundy is a pre-Act offender who served a prison sentence and was released in 2012. He moved to New York but never registered in the state as a sex offender. He was subsequently charged and convicted for failing to register. Gundy challenged his conviction, arguing that Congress unconstitutionally delegated its legislative power when it authorized the Attorney General the authority to specify SORNA’s applicability to pre-Act offenders. The district court rejected Gundy’s argument and the Second Circuit affirmed.

The Supreme Court affirmed. No opinion garnered a majority of the Justices, but a majority of the Justices did hold that SORNA complied with the Court’s existing nondelegation cases. Under those cases, Congress may delegate powers to the executive branch by statute if the statute contains “an intelligible principle to which the person or body authorized [to exercise the delegated authority] is directed to conform.” A majority of Justices concluded that SORNA satisfied that standard because the statute gave the Attorney General only “limited” discretion. The Court had previously held (in 2012) that Congress meant for SORNA’s registration requirements to apply to all pre-Act offenders as soon as it was feasible to do so, and delegated to the Attorney General only the authority to address how to apply the statute to pre-Act offenders who could not comply with the initial registration requirements, not the authority to decide whether to apply the statute to some or all pre-Act offenders. A majority of Justices concluded that SORNA gave the Attorney General “only time-limited latitude to excuse pre-Act offenders from the statute’s requirements,” but not to excuse any of them from registration altogether. And those Justices concluded that such a delegation contained “an intelligible principle” that limited the Attorney General’s discretion in administering SORNA.

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.