The Supreme Court declined to upend the administrative state on Thursday in a split decision that augurs coming earthquakes in constitutional law. Think executive agencies have too much power to interpret and enforce the law? Want courts to dismantle landmark statutes protecting the environment, consumers, and employees? You may be in luck: The conservative justices are eager to take a hatchet to the federal bureaucracy that governs much of modern America.
Thursday’s ruling in Gundy v. United States revolves around a statute known as the Sex Offender Registration and Notification Act. Passed in 2006, SORNA established a national sex offender registry and compelled convicted offenders to register with state officials. Those who failed to register or update their whereabouts faced 10 years’ imprisonment. The law expressly applies to everyone convicted after its passage. But what about the roughly 500,000 people convicted of a sex offense before SORNA? Here, the statute was hazy, stating that the attorney general “shall have the authority to specify” its retroactive application and “prescribe rules” for these pre-SORNA offenders.
Herman Gundy challenged that provision as a violation of the “nondelegation doctrine,” the principle that Congress can’t shift too much legislative power to another branch of government. SCOTUS has deployed this principle only twice in history to knock down federal statutes, both times in 1935 to rein in the New Deal. Today, it’s more or less moribund, because it only requires Congress to lay out an “intelligible principle” to guide an agency’s exercise of authority. Gundy claimed that SORNA’s retroactivity provision flunks that test.
In a plurality decision, Justice Elena Kagan, joined by the other liberals, rejected his argument. Kagan pointed out that SORNA’s text requires the establishment of “a comprehensive national system for the registration of [sex] offenders” that “includes offenders who committed their offenses before the Act became law.” By its own terms, it encompasses any “individual who was convicted of a sex offense”—not just offenders going forward, but everybody up to that point too. “Reasonably read,” then, “the Attorney General’s role … was important but limited: It was to apply SORNA to pre-Act offenders as soon as he thought it feasible to do so.” And that he did: 217 days, to be precise, after SORNA’s enactment, Attorney General Alberto R. Gonzales applied the law retroactively.
Kagan, then, found the “intelligible principle” required by the nondelegation doctrine: Congress declared that it wanted SORNA applied retroactively when the attorney general decided it would be practicable. “That delegation,” she wrote, “easily passes constitutional muster.” And, she pointed out, “if SORNA’s delegation is unconstitutional, then most of Government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs.”
Justice Samuel Alito provided the fifth vote to uphold the law, but did so begrudgingly. “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years,” Alito explained, “I would support that effort. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.” In other words, Alito isn’t going to break 84 years of precedent to the benefit of a half-million sex offenders.
Why wasn’t a majority willing to revisit the nondelegation doctrine? Simple: Justice Brett Kavanaugh wasn’t yet seated when SCOTUS heard Gundy in early October and thus didn’t participate in the opinion. The conservative bloc wasn’t at full capacity. That left Justice Neil Gorsuch to pen a righteous dissent scorning “a plurality of an eight-member Court” for ignoring “the Constitution’s demands.”
Joined by Chief Justice John Roberts and Justice Clarence Thomas, Gorsuch provided a lengthy history lesson about the separation of powers’ protection of individual liberty and condemned the “intelligible principle” rule as a “misadventure.” He would demand much more, requiring Congress to give the executive branch vastly more guidance in enforcing statutes. It’s not actually clear what test Gorsuch would use to locate nondelegation violations, but the gist seems to be that the executive branch is mostly limited to making “factual findings.”
Gorsuch’s fuzzy new rule would work a revolution in federal law. Hundreds of statutes task the executive branch with some broad goal, then let agencies fill in the details. The Environmental Protection Agency, for instance, has wide latitude to identify and restrict pollutants, because Congress doesn’t want to legislate every new regulation. Instead, it gives the EPA certain guidelines, then leaves it to the agency’s scientists to determine what rules would best serve the public. The same goes for the Department of Labor, whose experts are empowered to identify and remedy workplace abuses. Americans may complain about bureaucracy, but with Congress perpetually deadlocked, these agencies keep the government running—and, crucially, adapting to new challenges, exactly as lawmakers intended.
Now Gorsuch wants to stop all that. His vague standard would allow judges to strike down statutes that don’t give agencies sufficient direction. What laws does he have in mind? On Thursday, he limited his critique to SORNA. But soon Kavanaugh, a critic of the administrative state, will likely join his crusade, shoring up a conservative majority. At that point, it won’t just be sex offender laws that fall, but any statute that delegates too much power to agencies in the court’s subjective view. The result could permanently hobble the executive agencies that do the everyday work of carrying out the law.
I am not sympathetic to SORNA, and I find much to admire in Gorsuch’s criticism of the law itself. It does seem fundamentally unfair that the attorney general could impose stringent new restraints on the liberty of 500,000 people. But the deeper constitutional flaw here really lies in the court’s blessing of retroactive punishment for sex offenders. In 2003, SCOTUS ruled that the government may saddle convicted offenders with extra registration requirements without violating the Constitution’s ex post facto clause. Why? Because these requirements aren’t “punitive,” even though they’re extremely invasive and onerous.
Congress relied upon that legal fiction to justify the constitutionality of SORNA. Gorsuch’s fury may be misplaced: The real injustice lies in America’s draconian sex offender laws, which do not appear to work at all. SORNA is a symptom of a deeper disease, one that Gorsuch misdiagnosed. The problem isn’t Congress’ delegation of power. It’s American lawmakers’ eagerness to subject even minor sex offenders to a lifetime of retribution and humiliation.
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