On Monday, the Supreme Court agreed to hear Gundy v. United States, a constitutional challenge to federal sex offender regulations. If, like me, you believe that America’s current sex offender regime is draconian, unjust, and counterproductive, that might sound like good news! And perhaps it is. But there’s one aspect of the court’s grant that may be very bad news from progressive viewpoint: It will only consider whether the policy in question violates the nondelegation doctrine—a hazy legal principle last used to strike down New Deal legislation in 1935.
The law in question, the Sex Offender Registration and Notification Act (SORNA), required states to expand their sex offender registries or lose millions in federal funding. It also increased punishments for sex offenders, keeping them in the registry for decades, strictly limiting their freedom of movement, and allowing them to be detained for years in “civil commitment” after they finish serving their prison sentences. Oddly, Congress did not clarify whether SORNA must apply to sex offenders convicted before the law’s passage. Instead, it gave the attorney general authority to apply the law retroactively, which he did.
Typically, the Constitution’s Ex Post Facto Clause prohibits the government from applying a new criminal law retroactively to punish an offender who committed his crime before the law’s passage. But in 2003, the Supreme Court rejected an Ex Post Facto challenge to Alaska’s retroactive sex offender registration act, holding that Alaska’s measure was not sufficiently “punitive” to violate the clause.
Thus, Herman Gundy—the defendant in this case, who was convicted of a sex offense before SORNA’s passage—decided to challenge the federal law’s retroactivity under the nondelegation doctrine. Under this theory, Congress infringes upon the constitutional separation of powers when it delegates too much legislative authority to another branch of government. Here, Gundy asserts that Congress delegated an unconstitutional amount of power to the attorney general by allowing him to determine how to apply SORNA retroactively.
I am simultaneously sympathetic to and terrified by this argument. On the one hand, SORNA is a truly terrible law, and I’d like to see it reined in. On the other hand, Gundy may open up a nasty can of worms. The Supreme Court has deployed the non-delegation doctrine to strike down legislation precisely twice—in 1935. Both laws were New Deal regulations: one governing industrial labor laws, the other setting quotas on oil sales. But shortly thereafter, the court changed its attitude toward the New Deal, giving up efforts to police economic reforms. Since then, the court has largely abandoned the nondelegation theory, allowing Congress to delegate power to another branch so long as that power is limited by some “intelligible principle.” Justice Anthony Kennedy described the doctrine as “somewhat moribund” during oral arguments in 2014.
In recent years, however, several conservative justices have expressed an interest in reviving nondelegation principles. Justice Clarence Thomas wants to bring it back; so does Justice Neil Gorsuch, who praised the doctrine as a safeguard of personal freedom while on the 10th U.S. Circuit Court of Appeals. (He also endorsed it in a 2017 speech to the Federalist Society.) Many progressives fear that, once resuscitated, the theory could be used to strike down all manner of economic regulations.
It’s a reasonable concern. These days, Congress hands off most regulatory authority to a slew of federal agencies situated in the executive branch. A court concerned about nondelegation could strike down a vast range of liberal legislation under the doctrine. Labor laws and environmental protections would be especially vulnerable, since Congress gives agencies a broad mandate to interpret and implement these measures. If the Supreme Court renders that mandate unconstitutional, federal rules that protect workers’ rights, collective bargaining, clean air, and endangered species would fall.
So: Should progressives panic about Gundy? Not quite yet. University of North Carolina criminal law professor Carissa Byrne Hessick points out that the Supreme Court could set different rules for the non-delegation in the criminal context. Gorsuch suggested as much in his 10th Circuit opinion—which, in fact, involved a similar challenge to SORNA’s retroactivity. In an impressive dissent, Gorsuch wrote that Congress must provide something more than an “intelligible principle” when delegating prosecutorial authority given the “individual liberty” at stake. “If the separation of powers means anything,” he asserted, “it must mean that the prosecutor isn’t allowed to define the crimes he gets to enforce.”
I think Gorsuch is probably right, but I worry about this court’s ability, or willingness, to limit the non-delegation doctrine’s revival to criminal cases. Gorsuch has a knack for reintroducing conservative principles in cases where they lead to a liberal outcome, even though the underlying rationale tilts the law rightward. Would this conservative Supreme Court cabin non-delegation to criminal law? Or might it succumb to the temptation to use this principle as a sword to slay economic and environmental regulations, too? Gundy will give us a glimpse of the answer.
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