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.
Over 12 years ago, Congress enacted the Sex Offender Registration and Notification Act.
One provision of SORNA created a requirement that 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 SORNA’s enactment?
The government contends that the attorney general’s discretion under SORNA is confined to a single issue — to determine the applicability of the statute’s civil registration requirement to pre-SORNA offenders.
In making that determination, the government argues, the statute supplies the “general policy” for the attorney general to pursue: “ .” Congress determined that granting discretion to the attorney general to implement the registration requirement for pre-SORNA offenders was necessary, the government says, so that the attorney general could address logistical and practical difficulties with administering the new national registration scheme and harmonizing it with a patchwork of state registration schemes.
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.
A baker’s dozen of amicus briefs were filed on Gundy’s side, but the U. solicitor general stands alone before the Supreme Court in defending the constitutionality of SORNA’s delegation to the attorney general.