Hopefully you have taken the opportunity to read or listen to the recent oral arguments in the Gundy v. United States case. By many measures, it was a very good start in the Supreme Court case which challenges the Sex Offender Registration and Notification Act of 2006 (SORNA) on the grounds that it unconstitutionally delegates legislative powers to the Executive. Reason.com’s Damon Root picked up on signs that at least a couple of the Justices were already lending a very open ear to the Plaintiff’s arguments.

Judging by the oral arguments, at least one member of the Supreme Court seemed quite ready to rule in favor of Baumgartel’s position.

 

“The specific statutory section dealing with pre-enactment offenders says unambiguously that the Attorney General decides whether, how, when, and who, even who. So you don’t even know if you’re going to be subject to this law,” observed Justice Neil Gorsuch. “We say that vague criminal laws must be stricken,” Gorsuch continued. “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,” interjected Justice Ruth Bader Ginsburg, speaking to Baumgartel. Indeed it was.

A few minutes after that, Justice Sonia Sotomayor stepped in to support Gorsuch’s line of questioning. “I think a fundamental issue that Justice Gorsuch has been aiming at is—especially in criminal law—is it just to delegate to the Attorney General a fundamental question about who gets covered or doesn’t get covered by a statute? That,” she told the principal deputy solicitor general, “seems like at the core of what a law is.”

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