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:
- https://www.supremecourt.gov/opinions/18pdf/17-6086_2b8e.pdf (the actual opinion)