During Tuesday’s oral arguments in Gundy v. United States at the Supreme Court, Justice Neil Gorsuch name-dropped an unusual ally: the American Civil Liberties Union. Gorsuch asked Jeffrey Wall, the principal deputy solicitor general, to respond to an argument in the ACLU’s amicus brief on behalf of Herman Gundy, a sex offender challenging a federal registration law. Days before, the ACLU announced its opposition to Brett Kavanaugh’s nomination, a rare move for an organization that typically refrains from endorsing or opposing judicial nominees. Last year, the group issued a sharply critical report on Gorsuch—who, upon joining the bench, promptly ruled against the ACLU in a series of high-profile cases.
Yet here was Gorsuch, relying upon the ACLU’s reasoning to challenge the authority of the Trump administration—and, specifically, Attorney General Jeff Sessions—to impose retroactive penalties on sex offenders. It was a remarkable moment, but not a surprising one: Gorsuch has voted to limit federal law enforcement authority before, and he’ll do it again. The catch is that Gorsuch’s idiosyncratic views on federal power and individual liberty, while helpful to progressive causes in cases like Gundy, pose a huge threat to business and environmental regulations that liberals support. Civil libertarians who seek Gorsuch’s vote risk fueling his crusade against the “administrative state.” Unfortunately, they may have no other choice.
Gundy revolves around a single section of the Sex Offender Registration and Notification Act, or SORNA, a draconian 2006 law that established a national sex offender registry. SORNA also requires convicted sex offenders to register with state officials and periodically update their whereabouts. Failure to register or provide updates is a federal criminal offense that can result in 10 years’ imprisonment. When Congress debated SORNA, it could not decide whether it should impose these burdens on individuals convicted before the law was passed—about half a million people. So it delegated that decision to the attorney general, who would determine if and how SORNA should apply retroactively.
This delegation is extremely weird. Congress delegates policymaking to the executive branch all the time, giving federal agencies like the Department of Labor wide latitude to implement statutes. But Congress rarely asks a federal agency to establish criminal laws—and when it does, it typically gives them some direction explaining its goals. Here, Congress simply abdicated its responsibility to define the scope of a criminal statute, passing the buck to attorneys general without even giving them any real guidance.
As Justices Antonin Scalia and Ruth Bader Ginsburg pointed out in a 2012 dissent from a decision involving SORNA, this sweeping grant of legislative power raises grave constitutional concerns. At the height of the New Deal, the Supreme Court struck down two laws as violations of the “nondelegation doctrine,” rooted in the Constitution’s separation of powers. The court acknowledged that Congress can hand over a great deal of authority to the executive branch. But it held that Congress must provide some “intelligible principle” to guide the agencies’ execution of the law.
That’s a low bar, and legislators quickly began inserting such “principles” into their bills to avoid a constitutional infirmity. It worked: The Supreme Court hasn’t struck down a law on nondelegation grounds since 1935. Today, however, conservative judges—including Gorsuch—have expressed interest in reviving a doctrine to place new limitations on executive branch agencies. Gundy is the Supreme Court’s first opportunity to curb their authority.
Yet Gundy creates a dilemma for the left, because SORNA is a truly terrible law, and its retroactivity provision deserves to be invalidated. Herman Gundy is represented by the Federal Defenders of New York, a public defender office that aids indigent people charged with federal crimes. It often represents individuals who failed to comply with SORNA’s stringent registration scheme, sometimes by mistake. SORNA drives America’s mass incarceration problem by sending rehabilitated offenders back to prison because they failed to fill out certain paperwork. Any criminal justice reformer should oppose its extension to the half-million people convicted before it passed 12 years ago.
Gorsuch, a skeptic of vague criminal statutes, came down hard against SORNA’s retroactivity clause on Tuesday. (He also condemned it when serving on the 10th U.S. Circuit Court of Appeals.) “I’m having trouble thinking of another delegation in which this court has ever allowed the chief prosecutor of the United States to write the criminal law for those he’s going to prosecute,” the justice told Sarah Baumgartel, Gundy’s lawyer. “We say that vague criminal laws must be stricken. We’ve just repeated that last term. What’s vaguer than a blank check to the attorney general of the United States to determine who he’s going to prosecute?” (“That’s your argument stated very, very concisely,” Ginsburg cracked to Baumgartel.)
Here’s the thing: Gorsuch is absolutely right. And judging by the other justices’ skepticism of SORNA’s delegation, his view will carry the day in a lopsided ruling against the government. But while a ruling against the government would be a victory for criminal justice reform, it could also be very dangerous to the progressive project. Countless federal laws use broad language to let agencies enact policies to carry out Congress’ objectives. Statutes that regulate air and water, for instance, let the Environmental Protection Agency decide how best to reduce pollution. Those that regulate Wall Street and consumer fraud let agencies like the Consumer Financial Protection Bureau pass rules to police financial markets.
If the Supreme Court goes big on Gundy, it could place these laws in peril. (The many conservative groups that filed amicus briefs on Gundy’s behalf urged the justices to do precisely that.) But it doesn’t have to. The ACLU brief that Gorsuch mentioned provides a sensible alternative, urging the court to apply more scrutiny to delegations in the criminal context due to the heightened threat to individual liberty. Gorsuch advised this very path in his 10th Circuit opinion questioning SORNA; indeed, the ACLU brief quotes him extensively, in a pretty clear effort to snag his vote. Perhaps he and the ACLU are in perfect agreement, and the justice sees no need for an expansive decision that reins in every federal agency.
But when Gorsuch swings left, he tends to plant seeds that will grow into conservative jurisprudence later on. When he voted to strike down a hazy deportation law, the justice wrote separately to cast doubt on the legality of commonplace regulations, like those that govern business licensing. If he writes the opinion in Gundy, expect a similar time bomb that could blow up the administrative state. Gorsuch’s libertarian streak may prove helpful to progressive groups like the ACLU. But when they court his vote, they’re playing with fire.
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