The Sex Offender Law That Could’ve Broken the Government

Herman Gundy was a convicted sex offender who failed to register as one in Pennsylvania and New York, states in which he traveled and resided. Under the Sex Offender Notification and Registration Act of 2006, he had to register, so he was sent to prison again for failing to do so. Gundy v. United States was a 2019 Supreme Court case that dealt with the “nondelegation doctrine,” the practice that prohibits Congress, well, from delegating its legislative abilities to executive administrative agencies such as the Department of Justice or private organizations, etc. Justice Elena Kagan writes in her opinion for the case, “Indeed, if SORNA’s delegation is unconstitutional, then most of Government is unconstitutional.” 

Why did Justice Kagan say most of government would be invalidated based on a sex offender law case? It’s because the executive branch’s bureaucrats actually write many regulations and execute the law. An example of this is the Pure Food and Drug Act of 1906, where in Section 3, Congress delegates the ability to make “uniform rules and regulations” and enforce this act to the executive branch.

Yes, the people enforcing the laws and actually writing most of our regulations are not elected. Maybe ancient Athenian citizens would balk, but I wouldn’t. Would people seriously want Nancy Pelosi or Mitch McConnell deciding how much milk is needed in your yogurt for it to be called yogurt? Or maybe something more serious, like how many parts per million of lead in water is needed before the pipes need to be resoldered? Never mind that our elected officials don’t have time to figure this stuff out; they also simply aren’t qualified. There’s a reason why executive agencies are full of scientists and lifetime officials who know what they’re saying. 

Back to Gundy. He was convicted prior to the creation of SORNA, so did the Attorney General have the retroactive ability to apply SORNA to him? Subsection d of SORNA provides that the Attorney General decides how SORNA applies to previous sex offenders. This effectively delegated Congress’s power to the Attorney General, and the Attorney General decided all pre-SORNA sex offenders had to register under SORNA. The question now: is it constitutional for Congress to delegate its powers to the Attorney General to “specify the applicability” of SORNA?

As niche and possibly esoteric as this question sounds, the legitimacy of the administrative state is at stake. People use the term loosely to include the bureaucrats of the executive branch and of separate agencies, such as the FDA and EPA. If the Supreme Court had ruled against the district court and Second Circuit in favor of Gundy, they would have agreed that Congress could not constitutionally delegate its authority to the Attorney General to enforce SORNA to pre-SORNA sex offenders, as it did not meet the requirement for an “intelligible principle,” established in Mistretta v. United States. Mistretta was an 8-1 decision under the Rehnquist Court that ruled that Congress must have an “intelligible principle” or legitimate reasons to “obtain assistance from coordinate Branches.” 

What is the “intelligible principle?” Law works under the interesting notion of precedence, stare decisis, something you hear often in relation to Roe v. Wade. Stare decisis means, in Latin, “to stand by things decided,” so courts, including the Supreme Court will follow what previous rulings have laid down, even if it’s not “sound.” The next evolution of our constitutional question is if SORNA followed the “intelligible principle,” which is necessary due to the precedent of the Mistretta case. As a reminder, the “intelligible principle” is this idea that Congress must have an explanation for delegating its tasks to other branches or bodies. 

The implications for the legitimacy of the administrative state are huge — if Gundy fails to meet the “intelligible principle,” then what does? If no present delegations of power meet the “intelligible principle,” then how will Congress delegate its power to the administrative state? What if Congress can’t anymore?   

We’re getting ahead of ourselves: there’s still some legal-ese we have to cover. 

The story gets even more complicated because Mistretta is not the only precedent to focus on here — the syllabus of the opinion is littered with citations to previous cases. That’s great for a legal scholar, but pretty difficult for a college freshman to surf through. The last precedential case I’ll mention is Reynolds v. United States, in which the Supreme Court ruled that it is required for the Attorney General to apply SORNA to pre-SORNA sex offenders ASAP. Reynolds was a 7-2 split (oddly enough, the two dissenters were best opera bros Ginsburg and Scalia.) Justice Breyer wrote that Congress, through SORNA and the word “applicability,” wanted the Attorney General to decide the applicability of SORNA to previous sex offenders. For Congress, delegating to the Attorney General the ability to retroactively apply SORNA to sex offenders was an emergency interim rule, and the Attorney General eventually applied SORNA to all pre-SORNA sex offenders. 

To recap, there are two main precedents here: Mistretta, which requires Congress to have an “intelligible principle” supporting its power delegations, and Reynolds, which allowed the Attorney General to retroactively apply SORNA to pre-SORNA sex offenders. 

In the end, Kagan wrote the opinion for Gundy v. United States, with Breyer, Ginsburg, Sotomayor signing this opinion, and Alito writing a concurrence. Justices Roberts, Gorsuch, and Thomas dissented, and Kavanaugh did not participate. The logic was that Reynolds, which dealt with the same subsection of SORNA in this case, provided an “intelligible principle,” required by Mistretta to justify this delegation of powers. 

Now that our constitutional question is resolved, let’s go to the question of its impact. Its impact is in the counterfactual, the “what might’ve been,” because if Gundy won, then how else could we decide the constitutionality of Congress’s delegation abilities? The whole administrative state that enforces our laws could very well be considered partially or even entirely unconstitutional. Other than Mistretta’s “intelligible principle” doctrine, what would the opposing conservative justices prefer? Probably not something that makes “big government” easier. 

The makeup of the Supreme Court is now drastically different from the court that heard Gundy. The conservative justices are eager to knock down the meandering complexities of the administrative state; in their dissent, Justices Roberts, Thomas, and Gorsuch thought Gundy was the case to knock the bureaucratic arm of the government down. Alito, the remaining conservative justice (Kavanaugh did not participate) had the same intention as the other conservatives but agreed with Kagan’s opinion because he did not think Gundy was the case to do so. Our new 6-3 conservative majority, possibly, with another case, could create something deadly to the administrative state and, effectively, the government as we know it today. 

Sources and Further Reading:

6 thoughts on “The Sex Offender Law That Could’ve Broken the Government

  • February 26, 2021 at 7:05 am
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    I realize this article is about the “administrative state” and how a sex offender law had put a threat on the ability of the Admin State to enforce its regulations.

    Can the administration state pass regulations such as pollution control and enforce those regulations, but those regulations actually increase pollution?

    Does there actually have to be be any efficacy of the regulation or can it even cause harm, for the regulation to be valid?

    See, I won’t follow the registry. I left the registry. It is applied ex-post facto and has no relationship to a safer community. All it takes is my safety and/or security and this leads to higher rates of offending. This is easily provable as no research exists that says the registry is effective at reducing re offences and even states why a registry increases offense levels.

    Yet I am still liable to a regulatory system that will imprison me for long periods of time for failure to subject myself to harm.

    No ex-post facto laws, no double punishments, no cruel and unusual punishments and I het Due Process and Equal Protection.

    You all really think you can throw me into prison for up to 10 years for fleeing across state lines because of your illegally applied registry?

    I get that I have no legal protections BECAUSE of the unlimited ability of the State to “regulate” regardless of the harm the regulations pose to community safety.

    But I also invoke the doctrine that allows me to flee laws only designed to harm me. You all should talk about THAT a little more.

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  • February 27, 2021 at 5:15 am
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    The topic of allowing the administrative state to pass and enforce regulations that are counterproductive, if not harmful, is a matter that needs to be dealt with in this country. Dealing with SORNA is one such case in point.

    According to Kelly K. Bonnar-Kidd, PhD, at the NCBI National Center for Biotechnology Information (Ncbi.nlm.nih.gov/pmc/articles/PMC2820068/), “…sex offenders living in the United States are bound by multiple policies, including registration, community notification, monitoring via a global positioning system, civil commitment, and residency, loitering, and internet restrictions. These policies have led to multiple collateral consequences, creating an ominous environment that inhibits successful reintegration and may contribute to an increasing risk for recidivism. In fact, evidence on the effectiveness of these laws suggest that they many not prevent recidivism or sexual violence and result in more harm than good.”

    All research is showing relatively low re-offense rates (committing another sex crime) for people on the sex offense registry when compared to other crimes, with the exception of murder. According to Karl Hanson, one of the leading researchers in the field of sexual offender risk assessment and treatment, the lifetime re-offense rate (committing another sex crime) is anywhere from 10% to 30%, depending upon which study is used. (https://youtu.be/Hnf3bmoPLx4)

    Research also shows that at least 90% of FUTURE sex crimes will be committed by people NOT on the registry. (NCBI: “Sexual Offender Laws and Prevention of Sexual Violence or Recidivism”, by Kelly K. Bonnar-Kidd at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2820068/)

    Ninety-three percent of victims know their perpetrator. (RAINN: Rape, Abuse & Incest National Network, https://www.rainn.org/statistics/children-and-teens)

    SORNA regulations are forcing hundreds of thousands of people in this country to remain on a punitive registry even though they are not re-offending. The Ex Post Factor of the constitution applies as the registry is punitive. Hopefully, this will come before the U. S. Supreme Court some day.

    Reply
  • March 21, 2021 at 1:08 pm
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    This article is lame propaganda. I’d give the author a pass on that hyperbolic click-bait headline, except that she doesn’t even try to either substantiate or laugh it off in the article. She just leaves it hanging there, as if it’s a foregone conclusion. She doesn’t claim any specific Constitutional expertise in her bio, alludes to being a college freshman, and doesn’t look old enough to have gained a lot over the years, so it’s possible that she just spun content from other propaganda she read into this article and may not even realize how biased and lame she sounds. But, it seems obvious that she believes the propaganda, even if she can’t make a great argument for it and feels the need to rely on scare tactics to convince.

    One could see it coming with that strange explanation of stare decisis that doesn’t acknowledge that the principle is not inviolate, that precedent can and often is overturned because justices disagree with its soundness. And sure enough, she tosses out far-fetched examples about yogurt and pipe soldering to illustrate how nondelegation could work to dismiss out-of-hand the entire doctrine. Why not go with the obvious example: Nancy Pelosi’s famous, “We’ll find out what’s in the law after we pass it,” comment?

    That’s the perfect example of what the Nondelegation Doctrine would prevent. You had to read and understand 2000 pages of legalese just to track down which agency would actually be deciding whether you could keep your doctor. And, of course, you couldn’t, but were told you could by the lying politicians. But, they can conveniently blame the bureaucrats.

    And there are dozens of huge elephants in that room, but this author can only come up with yogurt and pipes, the types of esoteric details that no law would ever need to include to be effective. She seems to have no understanding of the difference between laws and regulations.

    More importantly, where is any explanation why the government can’t function? Her logic suggests that the data and analysis required to properly regulate and enforce laws can’t be shared by the bureaucrats with the elected politicians, and that those politicians don’t have the time or expertise to properly analysis it anyway. Here’s some news for her – politicians aren’t required to have expertise in anything, except sliminess, lying, arrogance, shady-dealing, etc., and most don’t.

    Instead, the elected pols rely on…bureaucrats. Imagine that. Just like the Executive Department’s bureaucrats, and both staffs are required to share data and analysis. If not, Congress, as we’ve seen many times, can force the Executive Department to share information. So, the basis of this author’s arguments, which repeat the same lame talking points as the other liberal propaganda on this topic currently flooding their sites, is that the only way government can function is if the ED bureaucrats, who have the data and expertise, are allowed to decide how we live. If they were required to reveal to Congress and the President what the data and their expertise recommends, so that those elected officials, with the help of their army of staff members, could incorporate those specific recommendations into the law, the entire house of cards falls apart.

    I know, it boggles the mind, doesn’t it? You’d think, worst case scenario, that Congress just hires more bureaucrats to replicate the expertise under their management. Don’t ask simple questions like that because they won’t answer.

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  • March 22, 2021 at 2:39 pm
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    3 words (Separation of powers.) Noone is above the law especially executive branch Unconstitutional means unconstitution.

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  • March 25, 2021 at 12:09 am
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    Tell me how the hundreds of laws, rules and ordinances we have to abide by or face imprisonment, is not punishment? Many of us were sentenced decades before the registry was even a thought in someone’s head.
    We did our time, got off of sancations, only to be retroactively put back on sanctions.

    The registries are nothing more than glorified probation. Many of us who were sentenced eons before the registry, did not get to use the possiblity of registration as a barginging tool in out trials because there was not registry. And yet someone sentenced today gets to plea a better deal due to the fact they will be on a registry when they are done. In what World is that fair or even just?

    We cannot live in peace because people look us up on the registry then come throw feces on our front porch, slice our tires, hang printed flyers at our jobs (I got fired over having them hung there by a citizen). Some have even been killed by strangers who knew they were on the registry but have no connection to the registered citizen, they just think they are the judge,jury and executor of punishment.

    I now live off the Government because no one will hire me. Several doctors have refused to continue having me as a patient because someone in the waiting room recognized me on the registry and complained. A church I use to volunteer at asked me to find another church because someone had reported if I was not asked to leave they would hang flyers around the church property about me.

    I once had a heart attack and was in the ICU for 11 days. There was no way I could call and let the authorities I needed to registered my stay there, and if they had found out, even though I was in a coma, I could have been sent to prison for more time that I got for my orginal offense. Imagine going to prison for having a heart attack.

    Like I said I can list at least 100 or more punitive/ punishements the registry imposes, but it only takes ONE for the registry to be unconstitutional. Getting a judge to stop being scared of what their peers think and do what is right and just, is another matter. Seems even some lawyers do not want to represent people convicted of a sex offense.

    In closing, instead of thinking we are all monsters, know this: Many of us are Fathers, uncles, sons, nephews, Brothers, Sisters (Yes there are some females on the registry). We are co-workers(Those who can find work), we are consumers, tax payers, neighbors (When we can actually find a place we are allowed to live).

    Many of us have gone decades without so much as a speeding ticket, and yet, in some states like Florida, the registry is for life, with few chances of ever being removed from it. And did you know there are a large amount of offenders on the registry who are dead, and many who came here for vacation and have not returned in years, yet they are still listed on the states registry. Why is that you ask? Because the registries get states Federal funding.

    I could type till the end of time with miles of evidence against the registry,but most who read this, like the judge, just hear blah blah blah.

    Reply
  • April 3, 2021 at 4:03 am
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    The Gundy case was a disappointing waste of the Courts time and resources. Asking the Court to make such a decision that could change the system as we know it was a bad call and did nothing to help no one The ONLY thing we need from the Supreme Court is for them to once and for all rule what is common sense to every living person and what will finally bring the legal relief to this sham: YES, OF COURE THE SEX OFFENDER REGISTRY IS PUNISHMENT – DUH! Then thousands can move on with their lives. Please stop wasting the Court’s time with all of these other issues.

    Reply

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