We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

FIRST MONDAY IN OCTOBER

The Supreme Court’s new year begins today and runs through next June. The term, known as October Term 2018, should begin with a bang for federal defendants.

As we mentioned last week, the Supreme Court will hear arguments tomorrow in Gundy v. United States, a case which asks whether the Attorney General can lawfully be given the power by Congress to determine who has to register under the Sex Offender Registration and Notification Act.

How the Supreme Court decides Gundy could have sweeping implications. Since SORNA was enacted, 4,000 sex offenders have been convicted of federal sex-offender registry violations: the government argues that “many of those offenders who failed to register would go free” if the Court were to invalidate Congress’ delegation to Attorney General in SORNA. What’s more, there are “hundreds of thousands” of pre-SORNA offenders now covered by the Attorney General’s designation, and the Court’s decision will determine whether or not they will face criminal liability for failure to comply with SORNA’s registration requirements.

Beyond sex-offender registration, the approach the Supreme Court takes in Gundy could affect many laws involving the administrative state. The nondelegation doctrine, which holds that Congress cannot delegate to the executive branch the power to declare that something is a crime or to specify the appropriate punishment, has been honored in the breach for well over 80 years, with federal agencies exercising increasing power to establish criminal offenses by administrative fiat. There was a time that the Supreme Court covered naked violations of the nondelegation doctrine with the fig leaf that such delegations were permissible as long as Congress furnishes a declaration of policy or a standard of action, “primary standards, devolving upon others the duty to carry out the declared legislative policy.”

In Gundy, the statute simply provides that “the Attorney General shall have authority to specify the applicability of the requirements of this subchapter.” 34 USC 20913(d). As the Cato Institute described it in a Supreme Court amicus filing, “He may require sex offenders to register based on the severity of their crime, the time since their conviction, or at random based on the first letter of their last names. He may consult the laws of the various states or various astrological charts. SORNA grants him “an unlimited authority to determine the policy and to lay down the prohibition, or not to lay it down, as he may see fit. And disobedience to his order is made a crime punishable by fine and imprisonment.”

Broad delegations of authority to the executive branch form the foundation of modern regulatory government. But given a dissent from Justices Scalia and Ginsburg (who, although good friends, were truly the odd couple in the same dissent) in Reynolds v. United States, a recent concurrence by Justice Thomas in Department of Transportation v. American Association of Railroads, and a Justice Gorsuch dissent from his time on the 10th Circuit in United States v. Nichols, a case involving SORNA, it is quite possible that Gundy will revive the nondelegation doctrine from its 80-year slumber.

This could spell “train wreck” for everything from securities fraud – SEC specifies what is and is not fraud in Rule 10b-5 – to analogue drugs, which the DEA is empowered to declare controlled substances under the Controlled Substances Act. A “train wreck”, indeed, one that we might enjoy watching.

Gundy v. United States, Case No. 17-6086 (argument set for Oct. 4, 2018)

SCOTUSBlog.com, Argument preview: Justices face nondelegation challenge to federal sex-offender registration law (Sept. 25, 2018)

– Thomas L. Root