The nondelegation doctrine is a legal theory that one branch of government must not authorize another entity to exercise the power or function which it is constitutionally authorized to exercise itself. When Congress enacted SORNA, they didn’t specify whether it was to apply to people who were convicted of a sex offense BEFORE the law’s passage or only to those convicted AFTER. Instead of Congress specifying, they gave the attorney general the authority to determine whether it should be applied retroactively, and he did!

The executive branch is not supposed to make laws, only Congress can do that.  The nondelegation doctrine provides that Congress cannot delegate (or hand over) its lawmaking power to the executive branch.  Lawmaking is for Congress, not the president.

For almost 100 years, this doctrine has been ineffective in patrolling the boundary between legislative and executive power.

In J.W. Hampton v. United States, 276 U.S. 394 (1928), the Supreme Court clarified that when Congress does give an agency the ability to regulate, Congress must give the agencies an “intelligible principle” on which to base their regulations. This standard is viewed as quite lenient, and has rarely, if ever, been used to strike down legislation

In A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), the Supreme Court held that “Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested.”

In 2019, four justices of the Supreme Court seemed willing to consider whether the nondelegation doctrine should be revived.  The court reviewed a law that gave the attorney general unilateral power to label certain people as sex offenders.  The court upheld the law with Justice Neil Gorsuch dissenting, “if the separation of powers means anything, it must mean that Congress cannot give the executive branch a blank check to write a code of conduct governing private conduct for a half-million people.”

This theory of nondelegation is surfacing again with the legal challenges that are coming as a result of the president’s vaccine mandate.  Florida Action Committee takes no stand on whether or not the mandate is constitutional and respects the right of its members to have their own opinions.  We are simply watching this situation to see how the courts now handle the nondelegation doctrine, and how it might possibly apply in the future to the unilateral power given in the past to the attorney general concerning SORNA.

 

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