Chief Justice Roberts gets the best of both worlds—the Court narrows Auer, but is not seen as overturning a precedent dear to progressives.
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.