Countdown to ‘Gundy’
On October 2, 2018, the Supreme Court of the United States is scheduled to hear oral arguments in Gundy v. United States, A “sex offender” case.
Reporter Amy Howe on SCOTUSBlog described the issue in the case as, “whether the law improperly delegates to the U.S. attorney general authority to decide whether SORNA’s registration requirements should apply to sex offenders who were convicted before SORNA was passed. Only Congress, Gundy says, has authority to legislate; it can, to at least some extent, outsource this power to another branch, but if it does so it must provide “clear guidance” – which it has failed to do with SORNA.”
The outcome of this case, which can potentially impact the hundreds of thousands of individuals whose convictions pre-date the passage of SORNA (a/k/a Title I of the Adam Walsh Child Protection and Safety Act of 2006), can be huge.
In lay terms; when SORNA was passed in 2006, Congress did not specify whether it would be applied retroactively or only to individuals who committed offenses thereafter. They left it up to the US Attorney to decide (as we know, the US Attorney decided it will apply retroactively). Leaving that decision to the US Attorney is not permitted according to the “non-delegation doctrine”, which says that Congress cannot delegate its legislative powers to agencies. In other words; the US Attorney cannot be both the law maker and the law enforcer.
The immediate best possible outcome is that the SCOTUS finds that SORNA cannot be applied retroactively, but don’t get too excited… You might be thinking, “can’t Congress simply follow up the decision in Gundy with “SORNA 2”, which expressly orders it be retroactive or pass some other Act directing the laws to apply retroactively?
Yes and no…
Yes, Congress can attempt to pass a law they will undoubtedly declare will “correct a loophole that sex offenders are trying to exploit” and try to get some traction out of that buzz-phrase.
But…
Herman Gundy and anyone else whose offenses took place pre-SORNA but were later charged with violating a registration requirement under SORNA, might be exonerated. So that’s a good potential win.
And, if Congress decides to take another crack at SORNA, we get another crack at Congress! Armed with a dozen years of research and studies (yes, it’s been 12 years since SORNA) showing SORNA’s failures, we have an opportunity to work with legislators to try and fix this bad law, apply it only prospectively or (maybe this is wishful thinking) scrap the whole thing! That’s a good potential win too.
And also, this case will force the SCOTUS to hear about the horrible mistake they made in Smith v. Doe (2003). So far there have been ten (10) Amicus Briefs filed in the case, all in favor of Gundy. One, in particular, a “Brief of Scholars Whose Work Includes Sex Offense Studies”, that was written by the leading experts in sex offense research, represents the voice of 900,000+ people required to register as sex offenders! A copy of the brief can be read here: https://www.supremecourt.gov/DocketPDF/17/17-6086/48963/20180601161907751_17-6086%20tsac%20Scholars%20Whose%20Work%20Includes%20Sex%20Offense%20Studies_A-2b.pdf
We have been waiting for a case to come before the Supreme Court that will compel them to consider their “frighteningly high” statistic is frighteningly wrong! This might just be that case.
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Damn! I wish my case was before 2006. Missed it by 2 years. But I will still be happy if it helps hundreds of thousands of individuals that pre-date SORNA.
I hate to burst everyone’s bubble, but I don’t see this case affecting anyone other than possibly providing some good quotes from Justice’s for future cases.
SORNA as enacted by the federal government is just a “suggestion” to the states. The states enact the actual laws and requirements to be on each state’s registry list. As far as I know, most state’s didn’t delegate any authority illegally and declared the retroactive application in their original laws. Therefore, any win in Gundy just takes a stab at the US Legislation miss-step but doesn’t have any weight on State’s laws.
Please correct me if I am wrong. I hope we can at least get some good SCOTUS quotes like we got from Packingham out of this and maybe some hints that “frightening and high” is a sham, but I don’t see anything more.
And also, this case will force the SCOTUS to hear about the horrible mistake they made in Smith v. Doe (2003).
That’s the part I wanted to hear. Can’t wait to see what their opinions are regarding Smith after all these years if they have any or say anything about it.
Same here. Can’t wait !
Having just read all of the decisions by the lower courts in this case, and the writ itself, I can’t share your optimism. The petitioner’s argument never mentioned the issue of whether SORNA is unconstitutionally retroactive punishment at all. Quoting what the petition asks the Court to do in regard to that point, “Finally, this Court should take the opportunity to address a frequently recurring question in SORNA cases, which impacts hundreds of thousands of individuals — the question of whether Congress properly delegated to the Attorney General the question of whether SORNA’s registration requirements should apply to offenders convicted prior to SORNA’s enactment. The Court should rule that this was not a proper delegation of legislative authority.” The Supreme Court can easily rule on this case without ever commenting on that point, because it is not a question properly before the court. Since Congress routinely allows the Executive branch to fill in the details, I would be very surprised to see the Court rule it to be improper. Amicus briefs in the Supreme Court aren’t worth the paper they are written on. The Justices don’t go easily on the lawyers during oral argument either. You aren’t given a lot of time to argue your position. Since the main argument in this petition is a claimed loophole about when you have to register, it’s doubtful that any discussion of an unconstitutional retroactive claim will even occur.
The question is not about an unconstitutional retroactive claim. It’s whether Congress can delegate that issue (whether it’s to be applied retroactively or not) to the US Attorney General.
I respectfully disagree with your pessimism. The last couple cases to actually be heard by the SCOTUS were winners; Nichols and Packingham. Let’s hope for three in a row.
Let me add a little to my earlier comment. None of the previous decisions by the lower courts in this case addressed the issue of improper delegation of law making power to the Attorney General at all. Therefore, it is highly unlikely that the Supreme Court will rule on it either. The reason it got to the court in the first place was because there were conflicting opinions from the lower courts. The Supreme Court is not very likely going to delve into delegation of powers issues on a case like this that can be easily disposed of. I might be wrong, but I’ve seen them ignore petitions that were written much better than this one. It is a collateral issue thrown in at the end without much argument, and the Supreme Court has little interest in collateral issues.
There are roughly 6,000 cases that apply to be heard by the Supreme Court of the United States each year.
The Court agrees to hear about 80 (yes, eighty) of them.
This not a petition for a Writ of Certiorari that will be ignored. This case has been selected to be heard and an opinion will be issued. Whether you believe the case has merit or not, that’s one thing, but your assertion that the Supreme Court will not rule on it is wrong.
I have to apologize to everyone for earlier comments. I have been researching the Gundy case and found that the Supreme Court is actually ONLY considering the nondelegation doctrine. https://www.supremecourt.gov/qp/17-06086qp.pdf
My doubts were based on how broad such a decision could be. Most recently for example, I had seen how most of the details regarding immigration are left up to the immigration dept. rather than spelled out by Congress. Tons of other rules and regulations are left up to other agencies rather than Congress as well. However, it could also merely result in sending the law back to Congress for a quick vote. Apparently, the Court hasn’t used such reasoning since 1935
https://slate.com/news-and-politics/2018/03/supreme-court-may-revive-non-delegation-doctrine-in-gundy-v-united-states.html
It will be interesting to see if the Court really is willing to rattle the legislative and executive branches with a big ruling, but we are living in unusual times.
The Nichols and Packingham cases didn’t exactly offer much to registered sex offenders. The Nichols ruling that sex offenders no longer have to update their registry info after moving out of their home state was just common sense. Most states would never expect anything else. Packingham simply prevents the government from barring sex offenders from accessing social media sites. It still allows the sites themselves to discriminate. From what I have read at other sites, the Court is likely taking up Gundy for the broader purpose of forcing Congress to stop delegating rule making to administrative agencies. It may also be overly optimistic to believe that this case will “force” the Court to re-examine Smith v Doe. If you have ever listened to oral argument at the Court, you would note that the Justices interrupt the attorneys constantly and steer the presentation to what THEY want to hear, not to what the lawyer wants to present. It is very likely that the focus of this case will not have much to do at all with sex offenders. You should read all of the amicus briefs filed in the case. There is one that argues about how delegation infringes on religious freedoms. And again, even if Gundy wins, it just puts the ball back into the hands of a Congress that can fix the law with a one-line addition making it fully retroactive. It may prove to be an interesting case, but it will not address the FACT that registries ARE punishment.
I am a realist. Hope for the best, expect the worst. With the cases coming back up, election year and all these promises being made, we will just have to see.
Sorry, but time & time again, the higher powers that be hear the cases, look at all the contradicting evidence and just “kick the can down the road”.
Let’s just hope this time they pick that can up.
What about the cases where people plead out not knowing the registration was coming in 91 I was 18,plead out the judge says in 4 years you’re free of restrictions that is why I plead. No way I would have plead knowing this was for the lifetime. It’s not right
That is Ex Post Facto – a separate suit and an issue not covered by Gundy
How is ex post facto not covered by Gundy?
FAC states: “The immediate best possible outcome is that the SCOTUS finds that SORNA cannot be applied retroactively…”
Is not retroactivity the same as ex post facto (a law that retroactively changes the legal consequences or status of actions that were committed, or relationships that existed, before the enactment of the law)?
https://en.wikipedia.org/wiki/Ex_post_facto_law
That’s my point exactly
Not directly. This case is not about the constitutionality of applying a sex offender law retroactively, it’s about whether Congress can delegate that decision to the US Attorney General.
So only Congress can pass unconstitutional acts; they can’t delegate that authority? I don’t see a win for us here.
Tired I know how you feel I’m in the same situation as you. This communist KGB gestapo type action , not to mention unconstitutional, has got to stop. If this country allows this type of action to continue everyone in this country minus a few hierarchy are in big trouble.
Same here, I took a plea deal, I had (3) other felonies pending at the same time. I took a 7 year plea deal. My attorney told me even if I win one, they will give me the maximum on the other’s. Everything was concurrent. The date alleged, the crime took place was 1989. There wasn’t no such thing as Sex Offender Registration, I would have taken my chances with Jury Trail, if I would have known Years later I would be subjected to this Registration Process!!! I just can’t understand (it’s not punishment) I feel like, I signed a contract with our Government and the Violated the agreement!!! I should have the opportunity to have my case reopened. People like me, who are being subjected to this Registration vyears after release, is so fundamentally wrong. I beat the odds, made a decent life after prison., Then get it Destroyed all over again with Registration!!!
I know I’m in the same boat.