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Gundy v. United States Could Signal a Major Change in the Supreme Court’s Separation of Powers Jurisprudence

Gundy v. United States is not listed in most media accounts of important matters now before the Supreme Court, yet this case could profoundly change how courts intervene to preserve the constitutional separation of powers in the future. Involving just one individual petitioner, Herman Avery Gundy, and only one issue—how to interpret a provision in the Sex Offender Registration and Notification Act of 2006 (SORNA)—the Court’s decision could signal a change in the direction of the Supreme Court on separation of powers issues, and begin an era in which Congress will not be permitted to give administrative agencies broadly conceived powers to make rules and regulations.

For these reasons the case has drawn amicus briefs from 13 groups, including the ACLU, New Civil Liberties Alliance, Pacific Legal Foundation, and 15 Criminal and Administrative Law Professors. Predicting a result is also difficult because only eight justices took part; the argument occurred on October 2, before Justice Kavanaugh had taken his oath of office.

Gundy arose because a provision in SORNA appears to give the Attorney General the opportunity to impose a portion of the act retroactively on individuals who had been convicted of sex offences under state law before SORNA was enacted. The act was intended to create a comprehensive national system of registration for convicted sex offenders under state or federal law, requiring them to register with the federal government as well as the state in which they were convicted, and to keep their registration current in each jurisdiction in which they reside.

The act also contains a special provision for offenders who were convicted under state law before SORNA’s enactment: “The Attorney General shall have the authority to specify the applicability of the requirements of this title to sex offenders convicted before the enactment of this act.”

In a prior case—Reynolds v. US—considered by the Court in 2012, the Court (Justice Breyer writing for the majority) held (7-2) that the act’s language about the Attorney General’s authority with respect to “pre-Act offenders” was not applicable to these individuals until the Attorney General issued the regulation contemplated by the statutory language. Thus, the Court had decided in 2012 that the Attorney General was empowered by the language of the act to determine who among the pre-Act offenders would be subject to the registration requirements and who would not.

This raised a question that the Court had not decided in Reynolds, but had to confront in Gundy: could the Attorney General both declare that a pre-Act offender was required to register under SORNA and then prosecute him for having failed to register? This placed the power to make a law and the power to enforce it in the same hands—a classic violation of the separation of powers and a clear delegation of legislative authority. As Justice Gorsuch phrased it at the oral argument:

[T]he specific statutory section dealing with pre-enactment offenders says unambiguously that the Attorney General decides whether, how, when and who. . . 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.

If this was indeed a delegation of legislative authority, then the question before the Court was whether Congress had provided an “intelligible principle”—a restriction on the Attorney General’s discretion—that would limit the scope of his authority in some way. For at least 90 years, the Court had been holding, when it faced a challenge based on what was alleged to be an unconstitutional delegation of its legislative authority by Congress, that the delegation would be acceptable if Congress provided at the same time an “intelligible principle” that placed a limit on the discretion of the officer empowered by the alleged delegation. In theory, it is not a delegation of legislative authority if Congress has made the fundamental decision about the scope of the law within which the executive branch official is acting.

Many scholars have questioned whether a phrase like “intelligible principle” actually has any meaning, or is simply a way for the Court to evade difficult decisions. However, whatever the phrase may mean, there is no explicit intelligible principle in SORNA that would serve as a restriction on the Attorney General’s discretion both to declare a pre-Act offender in violation of the law and then to prosecute him. Much of the discussion in the oral argument before the Court was about whether an intelligible principle could be constructed out of the preamble to the statute, perhaps combined with what might have been construed as the intent of Congress in enacting the law.

If the Court’s decision is ultimately that this was not an unconstitutional delegation it will be because at least five justices found an implied intelligible principle, not articulated by Congress, that somehow served to restrict the Attorney General’s discretion. This, however, would seem to be inconsistent with Reynolds, which held that the Attorney General had complete discretion in this matter.

On the other hand, if the Court ultimately decides that SORNA contained an unconstitutional delegation of legislative authority it will be because at least five justices could not find an intelligible principle in the act.

Of course, the Court can deadlock 4-4, but that is likely to mean that the same issue will be raised again by another pre-Act sex offender who was not in criminal jeopardy until the Attorney General applied the law to him. Thus, eventually, the delegation issue will be resolved, and given the makeup of the Court with Justice Kavanaugh voting, the likely outcome will be the first Supreme Court declaration since 1935, that a statute contained an unconstitutional delegation of authority. In that year, two cases—A.L.A. Schechter Poultry v. United States and Panama Refining Co. v. Ryan—declared two New Deal laws unconstitutional on this ground.

A Supreme Court decision that invokes the nondelegation doctrine will be a major turning point in American jurisprudence. It will mean that the constitutional separation of powers, which the nondelegation doctrine defends, still has vitality despite years in which the Supreme Court and many scholars did not seem to take it seriously. Subsequent cases will ask the courts to give real meaning to the term “intelligible principle,” or perhaps to adopt some different and more specific formulation. If so, laws and regulations will be overturned as unconstitutional if Congress fails to create real boundaries to the discretionary powers it provides to executive agencies, which many call the administrative state.

An amicus brief filed by the ACLU in Gundy recognizes the danger to the authority of federal executive agencies inherent in the resuscitation of the nondelegation doctrine. Accordingly, it urges the Court—if it restores the nondelegation doctrine in Gundy—to make it applicable only in criminal cases, and not disturb or diminish the broad authorities that Congress has been giving to executive agencies since the New Deal. “In the ninety years since the Court first articulated the “intelligible principle requirement,” the ACLU argued,

it has broadly construed Congress’s ability to delegate powers in the administrative sphere, striking down only two statutes on nondelegation grounds [citing Schechter and Panama Refining]. . . . In the administrative setting, the Court has accepted as sufficiently ascertainable broad standards such as “in the public interest.” . . . The judicial approval accorded these ‘broad’ standards for administrative action is a reflection of the necessities of modern legislation dealing with complex economic and social problems.” [quoting Am. Power & Light 329 U.S. at 105]

Then the ACLU continued, attempting to distinguish criminal cases like Gundy from the extraordinary powers Congress now routinely grants to administrative agencies:

All delegations, however, are not created equal. Heightened concerns are raised in the criminal context when prosecutors acquire the power to both make and prosecute the criminal law. Moreover, the justifications for broad delegation in the administrative setting are generally inapplicable to the criminal domain.

This seems a forlorn hope. The Constitution’s separation of powers, which is the reason for the nondelegation doctrine, does not distinguish between criminal and civil matters, and has no reason to do so. Its purpose is to ensure that the power to make the laws and the power to enforce the laws do not fall into the same hands. This, the Framers would say, is the source of tyranny; the peoples’ liberties can be restricted both criminally and though the rules of the administrative state.

It is unlikely, then, if the Court finds an unconstitutional delegation of legislative authority in Gundy, that it will recognize a distinction between criminal and administrative delegations. Instead, for the first time in since 1935, it will open the Court’s docket to a robust discussion of how much authority Congress can delegate to the agencies of the administrative state under the Constitution’s separation of powers.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on June 04, 2019 at 10:40:11 am

It is ironic that the judiciary is being asked to pronounce on separation of powers, albeit on bureaucratic delegation issues, when the executive often colludes with senate to make appointments on the criterion of party political loyalty. European democracies put a greater distance between judges and party machines to give credibility to claims of judicial independence.

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S P Chakravarty
on June 04, 2019 at 10:44:33 am

So much for the violation in the delegation. But, what about the violation in the enumeration, or, rather, the Constitutional SILENCE respecting it? It is axiomatic that silence does not constitute assent or consent, much less empowerment, and there ayn't no express reservation or restriction enabling it, necessity and propriety restricted to express enumeration and there despite reasonable and convenient, sex offense not qualifying. A Federal police state the Framers did not intend or express.

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gdp
on June 05, 2019 at 14:39:55 pm

I believe Justice Kagan said it best, not here https://abovethelaw.com/2015/02/this-citation-by-justice-kagan-looks-a-little-bit-fishy/ because a fish is a fish, is a fish, but here:

“But whatever the wisdom or folly of §1519, this Court does not get to rewrite the law. “Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress.” Rodgers, 466 U. S., at 484. If judges disagree with Congress’s choice, we are perfectly entitled to say so—in lectures, in law review articles, and even in dicta. But we are not entitled to replace the stat- ute Congress enacted with an alternative of our own design.”

https://www.supremecourt.gov/opinions/14pdf/13-7451_m64o.pdf

Thus we can know through both Faith and reason, that from the beginning, the Contraception Mandate that was added to The Heath Care Act, after the Bill became Law, and deemed to be a Tax, that included a grievous fine that was a gross violation of the Principle Of Proportionality, induced in an attempt to influence the recipient of said fine, to violate a tenet of their Faith and/or morals, if said recipient desired to provide their employees with Health Care Insurance, sans contraception Coverage, was most definitely, unconstitutional.

In other words, in affirming and applying the spirit of the Law, neither the Court nor an Administration Agency has the authority to change the letter of the Law. (Rodgers, 466 U.S., at 484)

“But whatever the wisdom or folly of §1519, this Court does not get to rewrite the law. “Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress.” Rodgers, 466 U. S., at 484. If judges disagree with Congress’s choice, we are perfectly entitled to say so—in lectures, in law review articles, and even in dicta. But we are not entitled to replace the stat- ute Congress enacted with an alternative of our own design.”

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Nancy
on June 06, 2019 at 07:09:44 am

This placed the power to make a law and the power to enforce it in the same hands—a classic violation of the separation of powers....

Does the US Supreme Ct promulgate rules of civil procedure? Criminal procedure? Evidence?

If a question about the application of these rules arrives at the Supreme Court, should we conclude that the court is precluded from ruling on that question--because doing so would violate the separation of powers?

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nobody.really
on June 06, 2019 at 09:51:07 am

"Does the US Supreme Ct promulgate rules of civil procedure? Criminal procedure? Evidence? "

Now, really, Monsieur Rally?

don;t they? Have not the Black robes, "effectively" made rules of admissible evidence, of search / seizure, etc. and ought not the Robed Ones review civil procedures for compliance with COTUS?

Really, Old Boy really!!!!

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gabe
on June 06, 2019 at 13:06:17 pm

It is important to note that In requiring “employers to cover a certain standard of healthcare in the plans they offer their employees”, Congress cannot violate The First Amendment or The Eighth Amendment, thus The Supreme Court erred when in declaring the Federal Statute, known as The Patient Protection and Affordable Care Act (PPACA) to be a Tax, they did not declare that the obscene penalty placed on those employers who desired to provide their employees with Health Insurance, sans Contraception coverage, was a violation of both The First and Eighth Amendments of The United States Constitution.

“The analysis of proportionality is made up of three sub-principles: adequacy, necessity, and proportionality stricto sensu.”

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Nancy
on June 06, 2019 at 13:15:03 pm

It is important to note that In requiring “employers to cover a certain standard of healthcare in the plans they offer their employees”, no branch of our Government, can violate The First Amendment or The Eighth Amendment, thus The Supreme Court erred when in declaring the Federal Statute, known as The Patient Protection and Affordable Care Act (PPACA) to be a Tax, they did not declare that the obscene penalty placed on those employers who desired to provide their employees with Health Insurance, sans Contraception coverage, was a violation of both The First and Eighth Amendments of The United States Constitution.

“The analysis of proportionality is made up of three sub-principles: adequacy, necessity, and proportionality stricto sensu.”

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Nancy
on June 06, 2019 at 16:27:37 pm

It is a rare day that Nancy and I find things to agree on. So mark this one on your calendar.

I agreed with SCOTUS that the APA represented a valid exercise of the taxing authority. Specifically, I believe that Congress could create a public health system as an exercise of its authority to provide for the general welfare, and to raise taxes to pay for it. And I believe Congress could adopt a system whereby it provides a tax exemption—for example, to employers who help government bear this health care burden by providing health insurance that meets certain minimum qualifications.

Employers should be free to refrain from providing such insurance, but would then not qualify for the tax exemption—just as I can refrain from giving money to a church I disagree with, but should not expect to benefit from a tax exemption on that basis.

However, where the employer raises a religious objection to a policy, then under the Religious Freedom Restoration Act, Congress should fashion the least restrictive means to further the government’s interests.

The government’s interest in the APA was to make health care more efficient by, for example, reducing the number of unwanted pregnancies. An employer that refuses to provide insurance covering birth control arguable contributes to net social cost by increasing the number of unwanted pregnancies. Government has a bona fide interest in making the employer bear the cost of his decision.

I don’t know how much that cost is, nor who should bear the burden of calculating it, but presumably some kind of analytical model could tell us. I’d expect that this cost would be pretty small.

In sum: Yes, employers should get to exercise their religion. No, employers should not get to shift the cost of their religion onto others. But when government imposes on employers a cost in excess of the cost that the religious expression causes to society, the excess cost represents an unreasonable infringement on free exercise.

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nobody.really
on June 06, 2019 at 16:43:56 pm

If the Court has ever said that " Congress could create a public health system as an exercise of its authority to provide for the general welfare" I must have missed it,

And if they did so rule, I believe they erred and should be corrected. The "General Welfare" clause does not give Congress a blank check to pass any law they want as long as they think it promotes something as vague as "general welfare". I know I went to law school generations ago, but I don't think such a radical proposition could have been declared without my noticing. But heck, I do sleep on occasion.

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Carl
on June 06, 2019 at 17:20:21 pm

See Helvering v. Davis (1937) finding the Social Security Act constitutional because FICA taxes are a valid exercise of Congress's taxing power, and issuing Social Security checks is a valid exercise of Congress's power to spend for the general welfare.

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nobody.really
on June 06, 2019 at 19:33:36 pm

Dear Beloved son or daughter of God, which makes you somebody really,
It is important to note that the fine for an employer providing his employees with Health Insurance sans contraception coverage was grossly out of proportion to the fine placed on an employer who did not provide Health Insurance to their employees at all.
The Contraception Mandate can thus be construed as a means to violate The First and Eighth Amendments through the use of Tax Law imposed by an Administrator, which is not only unconstitutional, it is criminal due to the fact that the fine served to “influence the recipient of said fine”.

“The Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

This clause obviously does not permit “execution of power”, that would necessarily violate both The First and Eighth Amendments, as that would be unconstitutional.

First and foremost this necessarily means that no branch of government has the authority to coerce any Insurance Company into becoming a peddler of Contraception, as Contraception, which is not Life-affirming or Life-sustaining, and in some cases destroys a human life, promotes promiscuity and the sexual objectification of the human person, does not serve for the prosperity or posterity of this Nation or The World, is not Health “Care”.

Also See Burrell v. Hobby Lobby

No branch of Government can be promoting the General Welfare Of this Nation while violating our very Constitution, for which it stands.

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Nancy
on June 06, 2019 at 23:53:59 pm

Thanks for sharing such a great information, it is really helpful. Keep up the work.

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Aronberg Law
on June 07, 2019 at 10:49:09 am

[N]o branch of government has the authority to coerce any Insurance Company into becoming a peddler of Contraception….

Whatever the merits of this claim, I know of no branch of government that even tries to achieve this outcome. I suspect you may have a misapprehension about how the APA, and insurers, work.

Also See Burrell v. Hobby Lobby.

I have my qualms with the idea that for-profit corporations have religions—but if you accept that, then I largely embrace the Burwell decision.

Burwell addressed whether Hobby Lobby could legally object to providing insurance with birth control coverage in accordance with the APA. Four justices said clearly yes; four said clearly no. So the Burwell decision ends up reflecting the view of the one swing judge, Kennedy.

Kennedy concurred that for-profit corporations could have religions, but in nearly every other respect concurred with the view that Hobby Lobby was not entitled to relief from the APA. He concluded that the government successfully "makes the case that the [birth control] mandate serves the Government's compelling interest in providing insurance coverage that is necessary to protect the health of female employees…."

What save the day for Hobby Lobby is not some principle about religion, but the quirky nature of insurance. Insurers know that they’re on the hook for the cost of pregnancies, which are expensive. Because of this, insurers may find it cheaper to provide birth control coverage as a way to minimize pregnancy-related costs. Citing this fact, Kennedy concluded that it may be possible to ensure that women get access to birth control at no incremental cost—at the initiative of the insurer—and thus cut the employer out of the issue entirely.

At pp. 3-4 of his concurring opinion Kennedy said, "RFRA requires the Government to use this less restrictive means. As the Court explains, this existing model, designed precisely for this problem, might well suffice to distinguish the instant cases from many others in which it is more difficult and expensive to accommodate a governmental program to countless religious claims based on an alleged statutory right of free exercise.”

In short, Kennedy concluded that government was justified in adopting a policy that included getting birth control to women free of charge, and the only reason to rule for Hobby Lobby was that there was a mechanism to achieve this end that did not require Hobby Lobby’s participation. If that were not the case, Kennedy would have ruled against Hobby Lobby.

I’m gratified (and surprised) to learn that Nancy supports this view.

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nobody.really
on June 17, 2019 at 19:16:42 pm

While you're waiting on SCOTUS to decide Gundy v. US, check out my article "Nondelegation," now on SSRN and forthcoming in the NYU Journal of Law & Liberty Vol. 12 #3! https://ssrn.com/abstract=3399724

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Aaron Gordon
on June 26, 2019 at 06:01:05 am

[…] this month, I wrote a piece for Law & Liberty about the importance of the Gundy case, which at that time had been heard by the Supreme Court but […]

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on June 26, 2019 at 12:05:13 pm

[…] this month, I wrote a piece for Law & Liberty about the importance of the Gundy case, which at that time had been heard by the Supreme Court […]

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on June 26, 2019 at 14:32:43 pm

[…] this month, I wrote a piece for Law & Liberty about the importance of the Gundy case, which at that time had been heard by the Supreme Court […]

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on June 27, 2019 at 06:14:33 am

[…] this month, I wrote a piece for Law & Liberty about the importance of the Gundy case, which at that time had been heard by the Supreme Court […]

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[…] this month, I wrote a piece for Law & Liberty about the importance of the Gundy case, which at that time had been heard by the Supreme Court […]

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.