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Gundy was convicted in 2005 of the rape of an 11-year-old girl and sentenced to 20 years in prison.

In 2010, Gundy began serving a federal prison sentence for violating the terms of his supervised release, and the Bureau of Prisons moved him from Maryland to a prison in Pennsylvania. 20913(d)] violates the nondelegation doctrine.” Gundy’s merits brief contends that SORNA’s delegation to the attorney general violates a core principle of separation of powers: that only Congress can legislate.

If the justices ultimately do find that SORNA’s delegation does something more than just “sail[] close to the wind,” then we can confidently expect to see a string of challenges attacking the exercise of federal administrative power in areas ranging from environmental law to immigration law to food-and-drug law to the law of tariffs and trade.

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That seems to me sailing close to the wind with regard to the principle that legislative powers are nondelegable.” The prudent course, Scalia urged, would be to interpret the statute narrowly so that it steered clear of the constitutional shoals of the nondelegation doctrine, the principle that Congress cannot transfer its power to legislate to another branch of government.

The issue flagged by the dissent has lingered ever since: Does SORNA’s delegation to the attorney general violate the nondelegation doctrine? In 2008, the attorney general promulgated guidelines that applied SORNA’s registration requirement to pre-SORNA sex offenders, among them Gundy.

Broad delegations of authority to the executive branch form the foundation of modern regulatory government.

But given Ginsburg’s dissenting vote in , Justice Clarence Thomas’ recent opinions on nondelegation and administrative power, and Justice Neil Gorsuch’s dissent from denial of rehearing en banc in a U. Court of Appeals for the 10th Circuit case involving SORNA, there is a real possibility that the court will issue a ruling that revives the nondelegation doctrine from its 80-year slumber.

that Congress can constitutionally leave it to the Attorney General to decide—with no statutory standard whatever governing his discretion—whether a criminal statute will or will not apply to particular individuals.

Gundy contends that other SORNA provisions that speak to the need for a “comprehensive national system” of registration or the goal of “protect[ing] the public” neither supply an intelligible principle nor dictate the answers to key policy judgments and value choices that Congress is required to make.

Gundy adds that SORNA’s delegation to the executive offends retroactivity doctrine and federalism concerns to boot.

SORNA did not itself specify whether pre-SORNA offenders were required to register.

It instead authorized the attorney general of the United States to “specify the applicability” of SORNA’s registration requirement to “sex offenders convicted before” the date of SORNA’s enactment, and “to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply” with the registration requirement.

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